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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, 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 , 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 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 , 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. tions to be split between the two is no reference to internal review Parts. In line with the UK’s approach within the legislation, but the Code It is likely, however, that the intention to communications with the Royal of Practice encourages the adoption behind the drafting is to follow Household since 2010’s Constitution- of a complaints procedure and a the approach of the UK Information al Reform and Governance Act, standard form has been developed. Commissioner, whose guidance there is one section providing abso- Another incentive to public authori- suggests that it is the complexity lute protection for communications ties to adopt such a procedure is of the operation involved in collating with the monarch, her two closest that, again as with the UK’s legisla- the requested information that heirs, and the Lieutenant Governor. tion, the Isle of Man’s Information indicates whether information is A separate section in Part 4 provides Commissioner can refuse to consider held or whether its collation consti- a qualified exemption for communi- complaints where the applicant has tutes the creation of new information. cations with the rest of the Royal failed to exhaust the authority’s own Household, and in relation to hon- procedures. The Act spells out that requests ours. can be refused not just if they The Commissioner’s powers are are vexatious, but also if they are The exemption for personal broadly the same as those of the UK ‘malicious, frivolous, misconceived information is similarly split in two. and Scottish Commissioners, and or lacking in substance’. Again, how The first of these exemptions in Part when he does consider a complaint, much difference this will make to 3 follows FOI(S)A in that it provides he has the ability to order disclosure interpretation of the provision is that personal census information through a decision notice. One inno- unclear at present. Its drafting, and a deceased person’s health vation in the Manx Act is an empha- together with the guidance provided record can be refused. In all other sis on alternative dispute resolution. in the Code of Practice, is clearly respects it provides protection for Whilst it is not clear how this will influenced by Information Commis- personal data to the same extent work in practice, the fact that the sioner v Dransfield ([2012] UKUT as is provided in section 40 of the Commissioner is encouraged to 440 (AAC)) and indeed the UK Com- UK Act. consider other ways to resolve missioner’s revised guidance follow- complaints is an indicator of the ing this decision (copy available at The Isle of Man is not a member of intent to avoid expensive legal www.pdpjournals.com/docs/88499). the European Union, and this means challenges as far as possible. that it was never required to adopt At present, public authorities in the regulations giving access to environ- Similarly indicative of this intent Isle of Man cannot refuse requests mental information. The Manx is that, as with the Scottish regime, on cost grounds, nor can they charge Act caters for information which there is limited scope for appeal a fee for requests. The legislation in the UK, Scotland and Ireland beyond the Information Commission- provides for Ministers to bring would be covered by Environmental er. The Commissioner’s decisions regulations forward to introduce Information Regulation exceptions can only be appealed to the Island’s such provisions, but this has not through a qualified exemption High Court on a point of law. The yet been done. It may be that the protecting ‘research and natural Act also mandates the establishment protections described above will resources’. of an ‘advice panel’ made up of prove sufficient safeguard against legal representatives who the any potential burden that FOI may In the UK, the ability for public Commissioner may consult in bring. authorities to extend the deadline reaching his more difficult decisions, to consider the public interest in again designed to ensure that the disclosure of information subject to correct answer is reached first time. Exemptions qualified exemptions has caused controversy, with some public bodies Despite its controversy in the UK One of the virtues of the Isle of Man extending the deadline indefinitely. Act, the Isle of Man has retained Act is its clarity. This is most visible In both statutes, there is no time the ability for government to overturn in the drafting of the exemptions. limit on these extensions beyond decisions of the Commissioner. In the UK Act, it is necessary to a requirement to respond ‘as soon The Chief Minister, having consulted refer to section 2 in conjunction as is reasonable in the circum- the Council of Ministers and the with the exemptions in Part II in order stances’, but the Manx legislation Attorney General, can veto the to establish which are absolute, and does at least expand on what can disclosure of government infor- which are qualified, and therefore be taken into account in determining mation. It seems unlikely that this subject to a public interest test. The what is ‘reasonable’. power would be used regularly, Isle of Man’s legislation tackles this if at all, by Manx ministers, but its by separating out the different kinds retention illustrates the cautiousness of exemption. Part 3 of FOI(IoM) lists of the Island’s government of the the absolute exemptions, and Part 4, (Continued on page 6) www.pdpjournals.com FREEDOM OF INFORMATION VOLUME 12, ISSUE 3

(Continued from page 5) the Act is extended to other govern- ment departments in January 2017, unintended consequences of free- and eventually to local authorities in dom of information. January 2018. By then, the Isle of Man will be a full member of the club of nations that have adopted Conclusion their own, individually tailored, freedom of information laws. Late adopters have the advantage of learning from the experience of others. The Isle of Man’s government I would like to thank to the Isle of has looked at the experience of their Man government’s FOI Team for its neighbours and drafted its FOI legis- assistance with this article. lation to avoid what they see as po- tential problems. Given the size and resources of the Island, it is perhaps not unreasonable for their govern- ment to take a cautious approach to imposing new obligations on their public services.

In light of the current scrutiny of FOIA, is there anything that the UK government could learn from the Isle of Man’s new legislation?

Many of the innovations described would have limited impact on the way FOIA is applied in practice. The enhanced status of the supporting Code of Practice strikes me as an interesting concept, though it is easy to see how governments might abuse such an approach.

The emphasis on seeking to avoid lengthy legal disputes would also be attractive to the UK government, which is already considering the possibility of fees for appeals to the Tribunals. It may be that the measures described will work well to avoid such costly arguments in the Isle of Man due to the estab- lished culture where, reportedly, Paul Gibbons most residents feel able to approach FOI Man

politicians and government informal- [email protected] ly. Whether they would work so well elsewhere is questionable.

The Isle of Man’s new FOI legislation is designed to extend what the government sees as an existing culture of openness. Its impact will only gradually be seen, as initially only the Cabinet Office and the Department of Environment, Food and Agriculture are subject to the new law.

The lessons learnt from this pilot implementation will be applied when