House of Commons - Public Administration

Select Committee on Public Administration Third Report

"GATEWAY" PROVISIONS

47. The White Paper sets out a series of what amount to conditions for requesters: "applicants will be encouraged to act reasonably and not abuse or misuse the access rights that the Act provides".[75]

Making a request

48. As noted above, the White Paper says that there are a number of circumstances in which the authorities subject to the Act will not necessarily be required to deal with requests in the normal way, by assessing them against the harm and public interest tests and then taking a decision to release the information or not to release it. These circumstances would include, for instance, cases where the information was already available, or where the information would be published in due course; where the request was not specific enough to allow the body concerned to look for it; or where the request appeared to be a 'large-scale "fishing expedition"', or multiple applications for related material, and so on.[76]

49. We accept that some such defences for the bodies subject to the Act are necessary. There may well be vexatious requests, and it should not be the role of authorities to provide routinely information which could be easily obtained from (for example) a public library. But the option of not releasing information if it is likely to be published could be an excuse for indefinite delay in permitting access, and will need to be subject to clear guidelines; and the option of not dealing with a request if it is suspected that it is simply a "fishing expedition", or even an attempt to "obstruct or interfere with the public authority's business"[77] could be misused by some bodies, which might be too quick to make inaccurate assumptions about the nature of an application or the intentions of an applicant. These provisions need, therefore, to be balanced by provisions requiring bodies subject to the Act to help applicants find the information they want. During our visit to Ireland, we heard how its Freedom of Information Act required bodies subject to it to publish general guides to their role, operation and records, and also to publish internal guidance or rules they hold. A good deal of the second type of material has already been made available under the Code of Practice. But the first type, the general guide to the role, operation and records of the body concerned, has not. We recommend that bodies subject to the Act should be obliged to publish a detailed booklet covering the role of the body, how it works, the type of records it holds, and its policies on disclosure of documents and that they should be under a statutory duty to advise and assist requesters to narrow and define the information they want.

50. The Campaign for Freedom of Information proposes that the public should be given access to any internal indexes held by the authority. It also suggests that authorities should make available an index to the records they have released in response to Freedom of Information requests, and copies of those records; and that authorities should be required to provide public reading rooms where such information, as well as the guides and manuals whose disclosure is proposed in the White Paper, could be inspected. All of these proposals are reasonable ones for major bodies: government departments, for example, or local authorities. They may be less practicable for smaller bodies such as schools or small advisory NDPBs. Arrangements for these could no doubt be made, however, through larger bodies, for example the government departments or local authorities concerned, or else applicants might be allowed to use desks at the establishment concerned to review the records available. The Government resisted the suggestion that bodies to which the Act applies should be obliged to create indexes where they do not already exist. Dr Clark did say to us, however, that departments "may want for their own convenience to work out some form of index or list and if they do that then certainly it would be my intention that that information itself will be subject to ... freedom of information".[78] We recommend that public authorities should be required to make available existing indexes to their records, where it is practicable to do so; should be required to create indexes to new records; and should be encouraged to create indexes for old records. We accept that this need not be in the Bill itself, but we recommend that authorities should be obliged to prepare a strategy for cataloguing their records. The way that information is recorded or indexed is vital to an effective right of access; this is something the importance of which was made clear to us during our visit to Sweden; and we will return to the issue in our future reports. It will be essential to make sure that applicants are able to identify the documents they are seeking.

Fees and charges

51. The White Paper sets out a system of charges for applicants. It points out that Freedom of Information carries costs, and that "every major Freedom of Information regime in the world contains provisions for charging". It divides the systems into two types: flat-rate "entry charges" made each time an application is made and charges for dealing with the request, which may increase depending on the amount of work required in order to deal with it, and possibly also depending on the nature of the requester (whether an individual or a commercial operation).[79]

52. The White Paper proposes to employ both of these. Public authorities covered by the Act will be able to charge a "limited access fee per request", of no more than £10; then public authorities will be able to set their own charging schemes "within parameters laid down either in the Act itself or (more probably) an Order made under it".[80] These would exclude a power to make a profit; prevent bodies charging for information which a public authority is required under the Act itself to make publicly available; and "should be structured to fall primarily on the limited number of applications which involve significant additional work and considerable costs, rather than straight forward applications which, for public authorities, should be part and parcel of normal interaction with the public".[81]

53. How expensive is it likely to be to obtain the information requested? Under the Code, there is no access fee, but bodies subject to it could make charges depending on staff time required. The charges vary widely between departments. They are presented in the table on the next page. A number of the authorities that gave evidence to us made it clear that dealing with such requests was expensive in staff time. The NHS Pensions Agency said that "for every request requiring us to access a paper file and print some or all of its contents, the full economic cost to us will be approximately £50";[82] the Environment Agency said that "to process a payment currently costs in the region of £50-£60 in staff time alone". "The Agency already operates a fixed charge scheme for enquiries relating to land it owns and for solicitors, consultants and developers who are involved in property enquiries. Even at £35 + VAT per domestic enquiry and £50 + VAT for commercial enquiries, these are barely recouping the reasonable costs involved".[83] Viewed like this, dealing with information requests appears to be an added burden on authorities. But it is no less part of their normal job than is advising Ministers or carrying out their other functions and, we are confident, will come to be viewed as such.

54. The White Paper provisions should prevent excessive costs being charged to applicants. First, it is implied that where the request is for an individual's own personal information the only charge will be a flat fee up to a maximum of £10.[84] It must be clear either in the draft Bill itself, or in an undertaking on what any regulations will contain, that this will be the case. Second, the White Paper says that other charges will be structured to fall "primarily" on complex requests, rather than simple ones which should be regarded as "part and parcel or normal interaction with the public".[85] This seems encouraging, although what may be a complex request for the public authority may seem a reasonably simple one to the requester and others. Presumably the intention is that charges will rise considerably the longer requests take to deal with. We would expect that requests for information from journalists, or for basic information from interested individuals, would not be charged at all—whether the £10 flat fee or the further charges for dealing with the request. Third, the system of charging will exclude any power to make a profit.

55. The access fee seems low, but, as the Campaign for Freedom of Information pointed out, may well have a deterrent effect. The sum charged per request is the same as that charged under the Data Protection Act for access to computerised records. The Data Protection Registrar has expressed serious doubts about whether the fee should be retained because "on occasions it may be a deterrent to those seeking to exercise their rights". The Inland Revenue, which charges an application fee under the Code of Practice reported in 1994 that 10 per cent of requesters had abandoned their requests after being notified of the charges.[86] This deterrent effect is, of course, largely the point of having the access fee. It also deters multiple requests, as the Campaign for Freedom of Information say—and, again, this is part of its point. We understand, and accept, the need to deter the vexatious or ill-intentioned applicant. Yet we doubt that an access fee is either the best or the most equitable way of doing so. If public authorities have charging schemes in place based on the amount of time taken to process a request (apart from the access fee) these will act perfectly adequately as a deterrent to those likely to abuse their right of access. Many of the bodies that gave us evidence said that they were unlikely to charge the access fee—at least on its own—as it would not be worth the cost of collecting and processing it.[87] It seems to us, in fact, that the principal reason for the existence of the access fee is the need to ensure uniformity with the Data Protection Act—a matter about which we have something to say later on in this report. We recommend that there should not be an access fee either in the Freedom of Information Act or in the Data Protection Act; that authorities should continue to be allowed to charge reasonable fees along the lines of the scheme in the White Paper, based on the time taken to deal with a request; that the Government should consider introducing a standard hourly access charge, for all the bodies to which the Act will apply; that simple requests, dealt with within a certain time, should be free (and that multiple requests can for those purposes be dealt with together so it cannot be claimed that they should all be free); and, as in the existing proposals, that all charges for personal information should be capped at a low level—less than £10—in effect meaning that they are waived in most cases.

Department/Body	Scheme
Ministry of Agriculture, Fisheries and Food	· £15 flat rate for simple requests (covers more than £30 worth of work) · More complex requests: marginal costs recovered on ready reckoner basis
Ministry of Defence	· First 4 hours free · Thereafter £15 per hour
Department for Education and Employment	· First 4 hours free · 5 to 8 hours £50 · 9 to 13 hours £150 · over 13 hours £20 for every additional hour
Department of the Environment	· Requests under £50 free · Requests over £50 on full cost recovery basis, excluding fixed costs
Health and Safety Executive	· No charge for simple request, eg. oral information, inspection of registers, or provision of free leaflets · Photocopying and postage costs will be charged for simple requests where more than 20 pages of photocopying is involved · Flat rate of £25 for up to three hours work on more complex requests and further charge of £25 per hour after that (£45 per hour where a specialist inspector is required)
Foreign and Commonwealth Office	· Straightforward requests free · Extensive queries will be charged at cost
Department of Health	· One hour free · Thereafter £20 per hour
Home Office	· One hour free · Thereafter £20 per hour
Lord Chancellor's Department	· First five hours free · Thereafter £20 per hour
Department of National Heritage	· No charge for requests costing less than £100 · Thereafter marginal cost recovery
Northern Ireland Civil Service	· Various departments devising own schemes—mostly first five hours free then £20 per hour or relevant staff cost per hour
Northern Ireland Office	· First five hours free then £20 per hour
Office of Public Service	· Requests costing under £100 free · Over £100, charging at marginal cost on ready reckoner basis
The Scottish Office	· Requests costing under £100 free · Over £100, charging at marginal cost recovery on ready reckoner basis
Department of Social Security	· No charge for simple requests · Complex requests: marginal cost recovery on ready reckoner basis
Department of Trade and Industry (DTI Executive Agencies operate their own charging systems)	· Requests costing under £100 free · Requests between £100 and £1000; £14 per hour for staff at SEO and below, and £36 per hour for staff at G7 and above · Requests over £1000; hourly rates for individual grades
Department of Transport	· Requests taking less than ½ day free · Marginal cost recovery thereafter on ready reckoner basis
HM Treasury	· First hour free · Requests taking between 1 and 3 hours: £15 per hour or part thereof for second and third hours · Requests taking more than 3 hours: divisions will make estimates of cost of all extra work created
Welsh Office	· No charge up to £100 · Where the costs exceed £100, full cost recovery
Central Office of Information	· No charge for requests which can be dealt with speedily · £16 for requests taking 10 to 45 minutes · Complex requests: the charge will be based on estimated time spent on retrieving the information
HM Customs and Excise	· As Treasury
Data Protection Registrar	· Unable to charge for requests
Office of Electricity Regulation	· Certain information provided free of charge, eg. explanation of benefits, grants and entitlements · For all other information, first five hours work free; thereafter £20 per hour
Inland Revenue	· £15 flat rate for simple requests (covers £50 worth of work) · More complex requests (above £50), marginal cost recovery on ready reckoner basis
Office of National Statistics	· Simple requests free · £60 flat rate for requests taking between 1 hour and half a day · Higher charges for more complex requests
Ordnance Survey	· First hour free · Thereafter £35 per hour (These rates do not include archive mapping, graphic, data, customised products or any other product-related research)
Office for Standards in Education	· First three hours work free · Hourly charge thereafter with expert assessment time charged at higher rate
Office of Water Services	· First two hours free · Thereafter £20 per hour

56. The White Paper requests views on the desirability and viability of a two-tier charging approach designed to impose higher charges on commercial and other corporate users of the Act. Those bodies which gave us their views on this point told us that, in general, they welcomed the idea of a two-tier system. Some of them also had their doubts about its viability, though, on the grounds that it could be difficult to differentiate between commercial and "other" requesters. We appreciate the difficulties of operating a two-tier charging regime in practice. We note that no other country with a Freedom of Information system successfully operates a two-tier charging regime. The US has a three-tier regime, but opinions differ on its success. Therefore we recommend that there should be only a single set of charges laid down, and no discrimination between commercial organisations and others in the fees demanded.

57. The White Paper mentions the many information services provided by various government departments for which a charge is made. The charging regime for these is "underpinned" by Crown Copyright. All works originated within government have Crown Copyright protection under the Copyright, Designs and Patents Act 1988.[88] Departmental revenue from the licensing and publishing activities of Crown Copyright was almost £200 million in 1996-97. A Green Paper published in January discussed a series of options for the future of Crown Copyright and canvassed opinions on whether it should be abolished, or retained in certain circumstances. We have not taken evidence on this point, and therefore make no recommendation except to make clear the strong public interest in the dissemination of published government material to the public. We note that the Canadian Information Commissioner has criticised the practice of some Canadian public bodies to charge higher rates for information which is "tradeable data" under other statutes or licensing agreements in order to avoid cheaper disclosure under the access laws.[89] We believe in general that Crown Copyright should be used selectively, to ensure that material that is primarily of use to commercial organisations can still contribute to departments' income, while publications that are of use to the general public (and particularly publications that assist in the Government's duty to be open and accountable to the public and to Parliament) are widely and very cheaply available. It would be a matter of concern if, as more frequent requests for particular types of information were made, departments could treat that information as "tradeable", and begin charging at commercial rates which the ordinary public could not afford.

75 para. 2.23. Back

76 para. 2.26. Back

77 ibid. Back

78 Q.118. Back

79 para. 2.29. Back

80 para. 2.32. Back

81 ibid. Back

82 Ev. p.28. Back

83 Ev. p.58. Back

84 para. 2.31. Back

85 para. 2.32. Back

86 Min of Ev. p.42. Back