Parliamentarians (MPs and Peers) have access to two different systems of getting information from the government. As members of Parliament, they can use Parliamentary Questions (PQs) to ask questions and receive information from government ministers. They also have the same rights as everyone else to access information from public authorities through the Freedom of Information (FOI) Act.
This blog post describes the different features of the two systems, and where it might benefit Parliamentarians to use the more general right to access information.
Parliamentarians should use FOI when:
- The information is held by a public authority that is not a central government department or agency.
- The information is held in datasets or full documents rather than snippets of information.
- If information is likely to be (or has already been) withheld on public interest grounds and a right of appeal would be useful.
In general, we think that Parliamentarians should take the same interest in Freedom of Information compliance that they do in Parliamentary Questions, and recognise it as an essential way that information enters debate and facilitates parliamentary scrutiny of government.
FOI is not just directly useful for Parliamentarians, but is part of the information environment that informs wider work and scrutiny. FOI use by journalists, campaigners, and researchers regularly finds its way back into the parliamentary discussion.
We think Parliament can do more to take an interest in the good functioning of the FOI system, and would always love to chat to any MPs or Peers who want to see a stronger FOI system.
If you’d just like to learn more about Freedom of Information – we have a series of guides on WhatDoTheyKnow with everything you need to get started.
Parliamentary Questions and Freedom of Information
The Freedom of Information Act requires information to be disclosed on request except where it is covered by one of a range of exemptions. The Information Commissioner’s Office is the regulator for FOI, and the ICO’s decisions are ultimately appealable in the Information Tribunal.
Parliamentary Questions are based on a convention of government transparency to Parliament rather than a formal law. This convention is part of the general expectation that government business should be open to Parliament, that also underpins how Select Committees ask for documents.
This is reflected in the Ministerial Code as:
Ministers should be as open as possible with Parliament and the public, refusing to provide information only when disclosure would not be in the public interest, which should be decided in accordance with the relevant statutes and the Freedom of Information Act 2000.
How this works in practice is led by the government’s Guide to Parliamentary Work. Parliament’s interest in the effectiveness of this system is shown through the Procedure Committee producing monitoring statistics and recommendations for updates to the guidance.
The two systems are of comparable scale: in 2023 there were 56k Written Questions to central government departments and 70k FOI requests. Within a department, the responsibility to reply may or may not be held by the same people (there may be a practical split between wider parliamentary affairs and FOI management), although requests for information will then branch out to teams within the department.
Differences in practice
In principle, where both mechanisms can be used to ask for the same information, they should get the same response. In practice, FOI can be a more reliable way of accessing information if the information is covered.
The government’s guidance encourages alignment between the standard applied for Freedom of Information and PQs (i.e. information should not be withheld that would be released under FOI) and the language used to deny access to information is similar across both.
However, there are examples of where information not released under PQs may be released under FOI, or the underlying source information can contradict answers given (as found early on in FOI’s availability through usage by the All Parliamentary Group on Extraordinary Rendition).
This difference does not require a bad faith approach to giving Parliament information, but this may sometimes be the case and it is something that Parliamentarians should pay attention to. The parallel systems have different compliance approaches, and are often administered separately, and this can lead to different results.
Comparisons
| Freedom of Information | Parliamentary questions | |
| Scope (authorities) | All public authorities | Central government departments and agencies |
| Scope (information) | Must be existing documents or information | May involve (within cost limit) extra analysis on top of existing documents to answer the question |
| Time period | 28 working days | 5 working days |
| Right of appeal | Yes – internal review, ICO and courts. | No – seen as Parliamentary activity but no explicit internal appeal system. |
| Cost limit | £600 (24 hours) | £850 (34 hours) |
| Who can use it | Anyone | MPs and Peers |
| Results are… | Private/Public (it depends) | Public |
Scope
Freedom of information covers all public authorities (Scottish public authorities are covered under the similar Scottish Freedom of Information law), while PQs can only be asked of government departments or their associated agencies.
FOI requests must be for existing information or documents. PQs have a wider scope in that they may involve (within cost limit) extra analysis on top of existing documents to answer the question.
In practice, if seeking information from an existing document, PQs may result in an extract from this document, while an FOI response may return the whole document.
Time period
PQs should be returned faster. The standard for PQs is they should be answered within five working days, and are considered late after ten.
Freedom of Information requests should be responded to within 28 working days. Technically, it should be as fast as possible – but information tends to be released at this last point.
A shorter time limit is an advantage for certain kinds of questions, but may be a disadvantage when documents are hard to locate/access, leading to an incorrect “not held” response. This is one of the reasons why we recommend FOI for full documents.
Right of appeal
A key advantage of FOI is the legal appeal route.
Under FOI, there is an appeal regime through an independent regulator and the courts. There is no similar function for PQs. The guidance may encourage departments to apply the same logic to FOI and PQs, but the department’s logic may be wrong. Under FOI there is an external check on this, and disclosure can be compelled.
Because the question and answer process is seen as part of Parliamentary proceedings, outside regulators and the courts cannot compel different answers. This is a construction of Parliamentary supremacy that is to the advantage of the government, and to the disadvantage of MPs.
As FOI exemptions are part of the logic used to allow information to be withheld, requests can end up in a situation where the FOI standard is used to withhold information, but without the equivalent ability to appeal.
For instance in this Written Answer there is the effective use of the FOI commercial exemption. If this was an FOI request, this could be appealed at first through internal review and then to the ICO. As a Written Answer there is no right of appeal (although it could be resubmitted as an FOI request).
Cost limit
PQs have a higher threshold for the cost limit, meaning that in principle a slightly higher search time is allowed.
Freedom of Information requests to central government departments and agencies have a cost limit of £600 worth of time (24 hours).The “disproportionate cost threshold” for PQs is currently £850 (34 hours) — this is pegged at 140% of the FOI cost limit to the nearest £50.
In practice, this will rarely matter. Most responses that engage the cost limit reflect search times well above either cost threshold. An example of the disproportionate cost threshold being used can be seen here.
Who can use
Anyone can make an FOI request, while only MPs and Peers can ask PQs.
In practice this is a fuzzy boundary. Campaigners with a friendly MP/Peer may be able to have questions asked and information released. Similarly, it might sometimes be useful for a government MP critical of party policy to have information requested by a third party through FOI.
Information or documents released through PQs will enter the record or be a deposited paper, and so covered by parliamentary privilege and effectively public domain to use.
Information released under FOI does not have this same guarantee. Public authorities have a duty to provide information even if it is copyrighted or defamatory, and can’t be guaranteed to be legally safe to further republish.
For instance, an FOI request for an internal report that a third party considers defamatory might be vulnerable to a SLAPP. In most cases, this is not a significant factor. When it is and the requester is an MP/Peer, key information could be covered under privilege in different ways.
Who can see the results
The responses to FOI requests are less public by default, but this varies.
Answers to PQs are given to the parliamentarian in question and published as part of the official record.
FOI results are returned to the requester. If requested through WhatDoTheyKnow, the results are published in public (unless using our WhatDoTheyKnow Pro service, where results can be embargoed for a time).
The authority may (or may not) release the results of an FOI request either through a disclosure log, or other public disclosure. For instance, information might be released simultaneously through FOI and through a public announcement to get the authority’s framing of the information across, and reduce the newsworthiness to the original requester.
FOI is worth Parliament paying attention to
Both Parliamentary Questions and Freedom of Information open doors the others can’t. Both are important tools in a Parliamentarian’s role.
FOI is not just directly useful for Parliamentarians, but is part of the information environment that informs wider work and scrutiny. FOI use by journalists, campaigners, and researchers regularly finds its way back into the parliamentary discussion.
We think Parliament can do more to take an interest in the good functioning of the FOI system, and would always love to chat to any MPs or Peers who want to see a stronger FOI system.
Header image: Photo by Towfiqu barbhuiya on Unsplash
