As part of a review of the law on freedom of information, the Government has just announced that it is likely that the Freedom of Information Act (FOIA) will be extended to include charities, according to a report in The Times. This is likely to be a significant burden on charities – in many cases requiring more cost and resources than the data protection laws which already apply to charities.

FOIA requires named and listed organisations to publish information about their activities and entitles members of the public to request wide ranging information from them. Currently very few charities are subject to FOIA.

If charities are subjected to FOIA, this would mean that the public would have access to a very wide range of information including all documents and correspondence by post or email both internal and external. This could potentially include board minutes, contracts with suppliers, and notes about commercial negotiations.

Reform to FOIA is currently the subject of the Independent Commission on Freedom of Information, chaired by Lord Burns. The Commission was set up in July 2015 to consider the balance between transparency, accountability and the need for sensitive information to be protected under the Act. Its recent call for evidence drew around 30,000 responses last autumn. Some in government have called for the public authorities to be able to refuse requests for information more easily. The commission is due to publish its report in February, after which it is expected that the government will publish its proposals for reform.

The current Act provides that, once a request is made. There are 20 working days to respond, regardless of the size of the organisation. There are only limited grounds on which the request can be refused (for example it can be refused if the cost of finding and extracting the relevant information is expected to exceed £450, which the Act equates to 18 hours of staff time at £25 per hour).

Vexatious or repeated requests may be refused. The Act also contains a number of exemptions that may be invoked in a refusal such as information intended for future publication or personal data which cannot be shared without breaching the principles in the Data Protection Act.

FOIA was an important addition to the accountability of public authorities when first introduced and has since then led to many important public interest disclosures. Whilst it is also important that charities’ activities should be transparent, there are serious questions over whether extending the remit of FOIA to charities is the best way of achieving this.

BWB welcomes contact to discuss the implications of this potential development. For further information please contact Melanie Carter, head of Public & Regulatory on +44(0)20 7551 7615 or at m.carter@bwbllp.com or Lawrie Simanowicz, partner in Charity and Social Enterprise Department on +44(0)20 7551 7796 or at l.simanowitz@bwbllp.com.


Melanie Carter photo

Melanie Carter

Partner and Head of Public & Regulatory

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+44(0)20 7551 7615

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m.carter@bwbllp.com
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Posted on 13/01/2016 in Legal Updates

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