House of Commons - Public Administration

Select Committee on Public Administration Minutes of Evidence

Memorandum submitted by the Campaign for Freedom of Information

5. THE PUBLIC INTEREST TEST

The proposed public interest test,[65] against which all decisions under the Act are to be judged, is made up of three elements:

(a) The requirement that decisions should not be "perverse" appears to permit the disclosure of exempt information, if to withhold it would harm the interest which the exemption is intended to protect. This is helpful, providing it is capable of being applied only in favour of disclosure.

be in line with the overall purpose of the Act, to encourage government to be more open and accountable

The Act's purpose, of promoting accountability should be set out in an "objectives" clause. These are common in overseas FOI laws, which frequently cite the promotion of both accountability and participation amongst their statutory objectives (as is the case under New Zealand's FOI law).[67] These objectives are sometimes combined with specific public interest balancing tests built into individual exemptions[68] and with a specific duty to interpret the Act so as to promote the maximum degree of openness.[69] The UK's Code of Practice also contains a public interest test, allowing exempt information to be disclosed where the public interest in openness outweighs any harm likely to result.[70]

We hope the "accountability" test will encompass:

(a) the need to ensure that public authorities are held accountable for their actions through effective scrutiny;

(b) the need to make available in advance of a decision sufficient information for the decision to be discussed fully and influenced;

(c) the conventional law of confidence "public interest" test. This applies where there has been misconduct or danger to the public or the environment. In such circumstances, the courts will consider whether the disclosure of confidential information is justified in the public interest.

A more specific account of some of the public interest factors that might justify the disclosure of normally exempt information may be derived from those listed in Mr Richard Shepherd MP's Public Interest Disclosure Bill. The bill, which is supported by the Government and received a second reading on 12 December 1997, protects employees (including civil servants) from being dismissed or victimised where they have, in accordance with specified conditions, disclosed information which indicates:

"(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that the person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

The anti-secrecy provision in paragraph (f) is a significant feature of this definition.

Consideration might be given to creating a duty on authorities to disclose information on public interest grounds, even where no request for it has been made. Such a provision exists in the Freedom of Information and Protection of Privacy Act of British Columbia which states:

"25 (1) Whether or not a request for access is made, the head of a public body must, without delay, disclose to the public, to an affected group of people or to an applicant, information:

(a) about a risk of significant harm to the environment or to the health or safety of the public or a group of people, or

(b) the disclosure of which is, for any other reason, clearly in the public interest.

(2) Subsection (1) applies despite any other provision of this Act.

(3) Before disclosing information under subsection (1), the head of a public body must, if practicable, notify:

(a) any third party to whom the information relates, and

(b) the Commissioner."

Statutory bars on disclosure

A large number of individual statutory restrictions prevent authorities from releasing certain types of information. The White Paper proposes to repeal or amend many of these individually.[72] Our preference would be for the FOI Act provisions to override all such restrictions, or all except those which are specifically listed in the Act as continuing to have priority. Such priority might need to be preserved for restrictions safeguarding personal health information, in particular where patient confidentiality may require protection from authorities seeking to disclose it for reasons of administrative convenience. Precedents for an "override" approach can be found both in the Environmental Information Regulations 1992[73] and the Data Protection Act 1984.[74]

There may also be treaty restrictions on disclosure. One such restriction prevents the disclosure of safety information about the Channel Tunnel by the Channel Tunnel Safety Authority. We hope the FOI Act will find some way of addressing such measures, either through an override or, in the case of the tunnel, by seeking to modify the restrictive provision of the Channel Tunnel treaty.

6. CHARGES

The White Paper proposes that authorities should be able to charge:

(a) an access fee of £10 per application for all requests,[

It is not clear whether further charges for photocopying may also be made (though these appear to have been ruled out for personal files).[77] Fees can be waived on public interest grounds.[78]

(a) Application fees

Authorities will be entitled to impose an application fee for all requests, however simple - though we recognise that some may prefer not to do so either because the cost of collecting it involves disproportionate work, or because they prefer to adopt a more liberal approach.

Where such fees are charged, they will make information which is currently available more difficult to obtain than at present. Most departments do not require application fees under the Code of Practice, and charge only for requests taking more than a set number of hours. Application fees are not normally made under the Environmental Information Regulations 1992 or the Local Government (Access to Information) Act 1985.

Under the Code, many authorities in practice waive charges even where they could be made under their existing guidelines. In 1996, 13 departments and agencies dealt with all the Code requests they received free of charge, without requiring a fee in any case.[79] Two other departments charged only in 3 per cent of requests they received. Even the most regular chargers still dealt with nearly 40 per cent of requests free of charge.[80] Overall, charges were made in only 9 per cent of requests.

At first sight a £10 application fee may appear reasonable. However:

- We believe it is likely to deter many prospective enquirers. The White Paper states that it is modelled on the existing £10 Data Protection Act fee for access to computerised personal records.[81] However, the Data Protection Registrar has expressed "serious doubts" about whether that fee should be retained given that "on occasions it may be a deterrent to those seeking to exercise their rights".[82] The Inland Revenue, one of the few departments which charges an application fee under the Code of Practice, reported at the end of 1994 that 10 per cent of requesters had abandoned their requests after being notified of the charges.[83]

- Many applicants will need to make not just a single request but a series of related requests in order to pursue specific information. The cumulative application fees may prove substantial. For example a query about the proposed closure of NHS facilities, and the transfer of functions to a local authority social services department, may involve requests to several NHS trusts, to the health authority, the NHS executive, the Department of Health and perhaps more than one department of the local authority. Similarly a request for information about an environmental problem may involve the local authority's environmental health and planning departments, the Health and Safety Executive, the Environment Agency, the Department of the Environment, MAFF and - depending on the source of the problem - a privatised water company or other utility to be covered by the FOI legislation. Each of these requests in itself may be relatively easily handled, but nevertheless require a separate £10 application fee, whose overall effect may prevent the ordinary individual from using the Act.

- The difficulties that will be faced by an individual pursuing a single issue of concern will be multiplied in the case of an organisation systematically probing any aspect of an authority's work, to the extent that such enquiries may become too expensive to undertake.

- The application fee is not the only fee that may be charged. The combination of application fees even for simple requests with additional fees for more time consuming applications, could create a significant cost barrier to access.

The application fee is intended partly to prevent authorities from facing "frivolous" requests.[84] We think this concern is overstated, particularly in light of the so-called "Gateway" safeguards, which permit authorities to refuse requests on a formidable variety of grounds.[85] These appear more than adequate to protect authorities from unreasonable requests.

In these circumstances, we think it would be unduly harsh to permit an application fee to be charged for all requests, particularly if they could be imposed for information which has been freely provided in the past or which authorities should be expected to release as part of their normal dealings with the public.

(b) Additional fees

In addition to an application fee, authorities will be able to make further charges for more complex requests, though the level of these is not described in the White Paper.

We are (at least at this stage, given that the actual level of the fees is not yet known) less concerned about these given that public interest fee waivers will be available. These waivers are an important safeguard, but we assume they are more likely to apply to the fees for more complex requests than to application fees.

It appears that authorities will be able to determine their own charges, within certain statutory parameters.[86] We are not clear why this approach, rather than a uniform charging regime, is proposed.

Authorities have been free to determine their own charging regime under both the Code of Practice and the Environmental Information Regulations, and in both cases there have been widespread differences in charging. For example, under the Code:

- Charges for time spent on requests vary from £15-£20 an hour (in the case of most departments) to £35[87] or £45 per hour.[88]

- The amount of free time allowed before charges commence ranges from 10 minutes[89] to five hours.[90]

- Some departments charge only the marginal extra costs, for requests which exceed the free time period, while some charge for the total time taken including the free period.[91]

Charges under other provisions are equally variable:

- Hourly charges sought by local authorities under the Environmental Information Regulations have reached as much as £62 per hour.[92]

- A 1994 survey[93] of local authority charges for photocopying planning documents found they ranged from nothing to £13 for a single sheet.[94]

It is possible that by allowing authorities discretion to set their own fees, some authorities may adopt a more liberal charging regime than the norm. Equally, others may adopt a more restrictive approach. We would prefer that any charging regime should be set at the most liberal end of the spectrum; alternatively minimum standards should be guaranteed. For example, if charges are to be based on hourly fees, all authorities should be required to allow at least a specified period of free time. Many authorities have found five hours of free time to be feasible, suggesting that this could become the uniform minimum. There should be a maximum hourly search fee. Photocopying fees should be fixed, say at 10p a page, and not provide the opportunity for concealing an additional administrative charge.

(c) Fee waivers

We welcome the proposals that the Commissioner should be able to review the reasonableness of an authority's charging scheme, and waive individual charges where disclosure is in the public interest.[95] This provision would be strengthened by making clear that it was the authority's duty to waive fees in the public interest, and that fee waivers were not intended to be solely an individual remedy available to those who complained to the Commissioner.

65 Para 3.19. Back

66 Para 3.20. Back

67 Section 4 of New Zealand's Official Information Act 1982 states: "The purposes of this Act are, consistently with the principle of the Executive Government's responsibility to Parliament, - (a) To increase progressively the availability of official information to the people of New Zealand in order - (i) To enable their more effective participation in the making and administration of laws and policies; and (ii) To promote the accountability of Ministers of the Crown and officials, - and thereby to enhance respect for the law and to promote the good government of New Zealand: (b) To provide for proper access by each person to official information relating to that person: (c) To protect official information to the extent consistent with the public interest and the preservation of personal privacy." Back

68 Section 9(1) of the New Zealand Official Information Act states: "Where this section applies, good reason for withholding official information exists, for the purpose of section 5 of this Act, unless, in the circumstances of the particular case, the withholding of that information is outweighed by other considerations which render it desirable, in the public interest, to make that information available." Back

69 Section 3(1) of Tasmania's Freedom of Information Act 1991 states: "The object of this Act is to improve democratic government in Tasmania - (a) by increasing the accountability of the executive to the people of Tasmania; and (b) by increasing the ability of the people of Tasmania to participate in their governance." Section 3(4) states: "It is the intention of Parliament - (a) that this Act be interpreted so as to further the object set out in subsection (1); and (b) that the discretions conferred by this Act be exercised so as to facilitate and promote, promptly and at the lowest reasonable cost, the provision of the maximum amount of official information". Back

70 The preamble to Part II of the Code states: "In those categories [of exempt information] which refer to harm or prejudice, the presumption remains that information should be disclosed unless the harm likely to arise from disclosure would outweigh the public interest in making the information available". Back

71 And if it is not, by implication already included, it might be appropriate to add, at least for the purposes of FOI, a reference to disclosures indicating the existence of maladministration or of breach of a relevant code of practice such as the Civil Service Code or the Ministerial Code of Conduct. Back

72 Para 3.20. Back

73 Regulation 3(7). Back

74 Data Protection Act, section 26(4). Back

75 Para 2.31. Back

76 Para 2.32. Back