8 - Publication schemes and proactive disclosure

Summary

Introduction

If Publication Schemes are still the Cinderella of the freedom of information regime, only the Information Commissioner has the magic wand to make a dazzling transformation.

There are two main duties under the FOIA, but one tends to get neglected. Originally the concept of the publication scheme was intended to be central to the FOIA's workings, but in practice it has tended to be overshadowed by the duty to provide information on request. ‘Pull’ has predominated over ‘push’.

Despite this, publication schemes are an important part of the FOIA, and if anything their role is expanding. They are increasingly seen as a tool to meet other requirements under the EIR and re-use rules. From the FOI officer's perspective, if nothing else, they can assist in managing the burden of FOI requests.

Indeed there is renewed emphasis on proactive disclosure. The UK Information Commissioner has spoken of the need to ‘augment the requestbased, and, frankly, reactive model of openness that exists under our FOI laws’. In March 2016 the UK's Independent Commission on Freedom of Information recommended there should be more proactive publication and that the government should give the Information Commissioner ‘responsibility for monitoring and ensuring public authorities’ compliance with their proactive publication obligations’. The new s. 45 code of practice for the first time contains a section on publication schemes.

At the same time, there has been a rise in other duties to publish proactively. While FOI officers may not be directly responsible for compliance with other legal requirements, they need to be aware of them, and publication schemes need to refer to information made available through other transparency laws.

What the FOIA says about publication schemes

The requirement to adopt a publication scheme is set out in Part I of the Act, at s. 19. It requires that public authorities ‘adopt and maintain a scheme’, publish information in line with their scheme, and keep it under review. Publication schemes must specify the classes of information that they publish, make clear how they will be published, and state whether they are subject to charges.

Authorities are also expected to review their schemes regularly with ‘regard to the public interest’ in ‘allowing public access to information held by the authority’ and ‘in the publication of reasons for decisions made by the authority’.