Two government departments and a Kent-based Brexit planning group are reported to have given local councils advice on how to avoid releasing information about the no-deal Brexit plans, prompting UK. Gov and the ICO to intervene.

What Happened?

Kent Online reported that at the end of January, a leaked report showed that local councils were being given advice about how to handle Freedom of Information requests relating to the councils’ work and plans towards a no-deal Brexit, in a way that would not cause public harm.

It has been alleged that the threat of a no-deal Brexit situation has led to an increase in the amount of FIOA requests that councils receive about their plans for it, but that certain government departments and others may have sought to manage the amount of information making its way into the papers by issuing tips on how to keep emergency plans secret.

A blanket approach of this kind would go completely against FOIA laws.

Who?

According to Kent Online, the leaked report came from the Kent Resilience Forum, which is a group co-ordinating the strategy in the county for how it would deal with disruption in the event of a no-deal Brexit. Also, guidance issued by the Department for Exiting the EU DExEU was also cited in the report, as was guidance by the Cross-Border Delivery Group.

What Kind of Guidance?

The ‘guidance’ in question, mentioned in the leaked report, is alleged to include:

• The DExEU suggesting that councils and other organisations should refuse FOIA requests in relation to their emergency planning and, in some circumstances, that they should not confirm whether they hold information.
• Guidance from the DExEU leading to emergency services and councils being given a ready-made template for FOIA requests on Brexit plans.
• Local Resilience Forums or individual partner organisations being told to argue that disclosure would not be in the public interest as it “would undermine the effective conduct of public affairs”.
• Guidance that has led to the government tying ports to non-disclosure agreements, which prevent them from releasing any details about their discussions. Recommendations from the Cross-Border Delivery Group mean that while port authorities can share information with other organisations, these non-disclosure agreements are in effect for general disclosure to the public domain.

ICO Involved

The idea that FOIA requests could be treated in this way has prompted the involvement of the Information Commissioner’s Office. It has been reported that the ICO’s director of FoI, Gill Bull, has written to DExEU, the local government department, and the Kent Resilience Forum to express the ICO’s concern about the guidance.

The Council Says…

Kent Council has said that “We are keen to provide our partners with advice on how they can prepare for a worst-case EU Exit scenario”. The council has also said that it will soon be issuing an updated partner pack without the previous FOIA guidance.

The Government Says…

It has been reported that a government spokesperson has said that the original advice has now been revised, and new, updated guidance has now been issued.

What Does This Mean For Your Business?

Brexit is a complicated and divisive subject, but a Freedom of Information Request is an important legal right in the UK that allows for greater transparency in the way that companies and organisations operate, and each FOIA request should be considered individually.  It is worrying that advice should be given by government departments and other organisations, supposedly in the public interest, that appears to go against the Freedom of Information Act, by suggesting that some kind of blanket response, designed to withhold information should be applied. Businesses would not be able to behave this way without being held to account in a very damaging way, and it is understandable, therefore that the ICO has stepped in.