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FOI in the Isle of Man — FOIA Upgraded?

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FOI in the Isle of Man — FOIA Upgraded? www.pdpjournals.com FREEDOM OF INFORMATION VOLUME 12, ISSUE 3 hatever the Independent pick and choose what will work on the Commission on Freedom Island. In some cases they have little FOI in the of Information concludes, choice – for example, in 2002 they W the existence of the adopted a Data Protection Act which Commission demonstrates that the is virtually identical to the UK Act, Isle of Man UK government feels a need to regain enabling them to exchange personal control over the forces unleashed when data with authorities and businesses the Freedom of Information Act (‘FOIA’) across the UK and Europe. Practical — FOIA came into force in 2005. and economic necessities often dictate how closely the Isle of Man parallels The government will no doubt pull the UK and elsewhere. back from some of the more extreme upgraded? suggestions made in the Commission’s This was not the case with its Freedom consultation paper issued last October, of Information legislation, however, especially given the adverse media where draftsmen enjoyed much more reaction since. If it could travel back in freedom. Whilst there was a clear time to the late 1990s though, it might intention to enhance openness on be tempted to follow the example of the Island, those preparing the legisla- one of our neighbours. tion were keen to learn from experience elsewhere. They were particularly con- On a nearby island, one nation’s cerned about how the burden of FOI government has closely observed could be better managed in a country the FOI legislation of the British Islands with a public service that, whilst propor- Paul Gibbons, aka and has carefully drafted its new open- tionately large for its population, is still FOIMan, provides an in- ness law with the benefit of experienc- very small compared to its neighbours’ es of the UK and others. That nation is governments. depth account of some of the Isle of Man, and its 2015 Freedom the important innovations of Information Act has just started to take effect. The Freedom of Information in the Isle of Man Freedom Act 2015 of Information Act The Isle of Man The Isle of Man’s Freedom of Infor- mation Act (‘FOI(IoM)’) is very closely The Isle of Man is an independent modelled on FOIA and the Scottish nation. It shares our monarch, who FOI Act (‘FOI(S)A’). Requests for enjoys the title of Lord of Mann, and is information have to be answered represented on the Island by the Lieu- promptly, and in any case, 20 working tenant Governor. The UK government days after receipt. Applicants may provides for its defence and represents specify the format in which they would its interests abroad. The people who like the information to be provided. live there can buy produce with Manx There is emphasis throughout the Act pounds or with sterling, a point seized and its accompanying Code of Practice on by Alex Salmond during the Scottish on providing advice and assistance to independence referendum campaign to those making requests. Public authori- demonstrate that Scotland too could be ties are encouraged to adopt a publica- independent and retain the use of the tion scheme, though unlike the UK, this pound. is not mandatory. The Isle of Man’s independence is There are however some differences not merely a constitutional nicety, in the way the Act is drafted. It is but a reflection of its unique history. these innovations that I am particularly It has most in common with the Hebri- interested to examine here. dean islands off the coast of Scotland, and indeed they were governed from the Isle of Man for a long period. Viking An Act with purpose settlement and rule commencing in the tenth century has had a strong influ- Significantly, FOI(IoM) includes a ence on its constitution and culture, purposive clause. Regulators and perhaps most significantly in Tynwald, courts have acknowledged that the UK its historic parliament with origins far Act’s purpose is implicit in its title, but older than the UK’s. the Isle of Man’s law makes it explicit. Manx legislation tends to mirror UK law, but its government can and does (Continued on page 4) www.pdpjournals.com FREEDOM OF INFORMATION VOLUME 12, ISSUE 3 (Continued from page 3) endless commercial and other form specified by the Chief Secretary requests, which, it seems, many of the Isle of Man government It is in this section of the Act that public authorities in the UK are (the office equivalent to the UK we find the most significant, and routinely subject to. We want to try Civil Service’s Cabinet Secretary). perhaps controversial, of and avoid, for example, It is therefore clear when a request the legislation’s checks companies who gather is made under FOI(IoM). on the burden that FOI and sell information. might bring. “In the UK, So by limiting the scope The form is made available on the of the Act to Isle of Isle of Man government website Section 3 of the FOI practitioners Man residents we can as a web form, but it appears that (IoM) states that: have then, hopefully, focus requests made via post or email will our limited resources be accepted as long as applicants ‘The purpose of this occasionally on requests for infor- use the mandated form. Act is to enable persons struggled to mation from those who who are resident in the are directly affected The requirement to use a standard Island to obtain access distinguish by a public authority’s form would, presumably though, pre- to information held by between FOI decisions.’ vent Manx residents from submitting public authorities in requests through WhatDoTheyKnow accordance with the requests and or an equivalent service. principles that – the ‘business as Other information should be restrictions available to the public usual’ as a Practical refusal reasons to promote the public result of the This limitation is not interest; and exceptions the only attempt made FOI(IoM) distinguishes between to the right of access broad to manage the impact the application of exemptions and are necessary to main- definition of the legislation. ‘practical refusal reasons’ described tain a balance with rights at section 11. These include the to privacy, effective of a valid The right of access is invalidity of a request on the grounds government, and request set to information created described above, but also several value for the taxpayer.’ on or after 11th Octo- other reasons familiar to UK out at section ber 2011 (the beginning practitioners. Aside from the novelty 8 of the Act. of the current Chief of a section explaining Minister’s term of Requests can be refused if authori- why the Act exists, A valid office). This does ties do not hold information, but also one phrase stands not necessarily mean if they: ‘cannot, after taking reasona- out: ‘persons who are request in the that information created ble steps to do so, find the infor- resident in the Island’. Isle of Man before this date will not mation that the applicant has be available. requested.’ Even if the UK govern- has to be ment had been minded made not The Act highlights Examples of what would constitute to restrict usage of the continuing role ‘reasonable steps’ are set out in FOIA’s rights to those only in of the non-statutory the Code of Practice issued under living there, it would writing, but Code of Practice on section 60 of FOI(IoM). Section 61 have brought limited Access to Government makes clear that conformity with the advantage. Not so in using a form Information which Code will be taken as compliance the Isle of Man which, specified by was first issued in with any requirement in the Act. with its population of 1996. Requests for This means that as long as the 85,000, immediately the Chief information pre-dating Code’s recommendations are curtails the volume Secretary of 2011 will continue to followed, an authority can place of requests that might be handled under that a limit on the extent of their search have to be answered the Isle of Code (and it is possible for information. How far this differs with the inclusion of Man that requests from out- in practice from the approach taken the provision. side the Island may be in the UK in cases such as Chagos government.” considered under the Refugees Group v IC & Foreign Of- Indeed, during the Act’s Code as well). fice (EA/2011/0300, 4th September passage, the Island’s 2012, para 70) remains to be seen. Acting Attorney General In the UK, practitioners explained that this feature was have occasionally struggled to Many things in FOI(IoM) are spelt specifically designed to prevent distinguish between FOI requests out in more detail than in the UK Manx public authorities being caught and ‘business as usual’ as a result of Act, presumably in an attempt to up in requests of the type often sent the broad definition of a valid request avoid drawn out appeals. Section to UK public bodies. The Attorney set out at section 8 of the Act. A valid 8(3) makes it clear that public author- General stated that the Act: ‘seeks request in the Isle of Man has to be ities are not under an obligation to to limit exposure to the potential made not only in writing, but using a create new information. It does so in www.pdpjournals.com FREEDOM OF INFORMATION VOLUME 12, ISSUE 3 terms which, if applied restrictively, the qualified exemptions. Appeal mechanisms might rule out many requests which would be considered routinely under This division requires some exemp- In common with the UK Act, there the UK Act.
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