Who’s watching? Not the public

Spy Blog has picked up on a clear but often little regarded anomaly in the Freedon of Information Act after issuing an FOIA request for information to the Interception of Communications Commissioner regarding the Wilson Doctrine.

This is one of those things I’ve known about for quite some time but never quite got around to flagging up – most remiss of me, I know.

One of most important and least understand ways in which FOIA differs from other Acts of Parliament which deal with the staturory duties of public authorities – such as the Human Rights Act 1998 and the Race Relations (Amendment) Act 2000, is it the manner in which it defines what is and isn’t a public authority for the purposes of the Act.

The Human Rights Act, which I’ll use as an example, defines what it and isn’t a public authority by function – a given body is a public authority and subject to the Act if, at any given time, it acts in the capacity of or in lieu of a public authority.

Usually this is a clear and straightforward matter, but in some cases – the one that has come up in case law is that of private care homes operating under local government contracts – this may not be quite so clear and it then left to the courts to decide whether, in the matter being challenged, a particular body was acting as public authority based on the facts before it.

(One of the consequences of this is that case law includes rulings both that private care home are and are not public authorities in different circumstances)

FOIA takes a different approach – instead of defining public authorties purely by function, they are defined instead by a designated list maintained and updated by the DCA using secondary legislation. The upshot of this is that for the purposes of FOIA, a body is only a public authority if it is on the designated list – if it is not on the list it is not a public authority for the purposes of FOIA, even if under the Human Rights Act it would be a public authority.

What Spy Blog has discovered is that the Interception of Communications Commissioner has not been designated for FOIA and is, therefore, currently exempt from its provisions, despite, as Spy Blog, rightly notes, it meeting all the conditions set out in FOIA for such a designation.

Spy Blog are writing to the DCA to query this anomaly, the response to which I expect will be interests – any bets the excuse given will be that this is just an ‘administrative oversight’?

But, of course, the real question is how many other such oversights are there in FOIA?