HOW TO GET INFORMATION
117. Freedom of Information is not costless. Apart
from the three values which need to be balanced in considering
freedom of information requests, which we have already described,
there is a fourth factor: cost. Requests for information take
time and resources away from the other operations of any authority,
and while they may be essential for the purposes of accountability,
they may contribute to making it less effective. As with all Freedom
of Information legislation, the Bill has to tread a path between
making it possible for citizens to exercise their rights of access
effectively and allowing authorities to continue their ordinary
functions without excessive administrative burdens or disproportionate
Applications under the Bill
118. Requests for information under the Bill must
be in writing, with a name and address for correspondence (although
it is envisaged that applications may be made by electronic means)
(clause 4). The requester is entitled initially to be informed
by the authority "whether it holds information of the description
specified in the request", and "if that is the case,
to have that information communicated to him". These rights
are subject to a number of exemptionsboth with respect
to the authority's obligation to provide the information, and
to its obligation to tell the requester whether or not it exists
(referred to in the Bill as "the duty to confirm or deny").
The authority may refuse to comply with the request without further
information in order to identify and locate the information (clause
8). The authority may charge a fee, and if the fee is not paid
within three months, it does not have to comply with the request
(clause 9). Normally, the authority should comply with the request
"promptly", and in any event within 40 days (clause
10). The authority should as far as reasonably practicable provide
the information in the form in which it is requested (whether
a copy of a document, an opportunity to inspect a record, or a
summary of the information) (clause 11). The authority is not
obliged to comply with the request if doing so would exceed a
set cost limit, or if it is a "vexatious or repeated request"
119. As with the business of dealing with exemptions,
and balancing prejudice against harm, there is plenty of international
experience to draw upon, and we have compared, where appropriate,
that experience against the provisions of the Bill. In some ways,
the regime established under the Bill differs from the mechanisms
elsewhere. Some of these differences are indicated in the table
annexed to this Report. For instance, clause 15 provides that
when a public authority is relying on an exemption it must "give
the applicant a notice stating that fact and specifying the exemption".
A refusal notice under clause 15 will be very bald. The Australian
Act, by contrast, requires the authority to "state the findings
on any material questions of fact", and give the reasons
for the decision; it must state the name and title of the person
making the decision, and indicate the rights to complain and appeal.
The Irish and New Zealand Acts contain equivalent provisions.
We have already referred to the importance of reason giving in
relation to an authority's refusal to exercise its discretion
to disclose information under clause 14 (paragraph 00). It is
no less important that clear reasons be given why information
is exempt, and that applicants are provided with details of their
right to complain and to appeal. We recommend that the Bill
specify that where a request is turned down, clear reasons must
be given for the refusal, and the applicant must be told of his
or her right to complain and to appeal.
120. One other way in which the Bill seems to fall
short of the provisions in overseas Acts is by failing to make
it clear that where a document contains exempt material which
should not be disclosed, the public authority should prepare a
copy with the exempt material deleted and disclose the remainder.
There is no such provision in the draft Bill. Such a provision
could be a useful reminder to officials that the presence of exempt
material does not exempt a whole document, and that they should
disclose as much as possible. It might be argued that because
the draft Bill provides for access to information, and
not documents, such a provision is unnecessary. But it has proved
useful in other Freedom of Information regimes which are similarly
predicated on access to information rather than on documents,
such as New Zealand.
We recommend that the Bill include a provision making clear
the authority's obligation to disclose part of the information
requested, even if part of it is exempt.
"You should not under-estimate the extent to which the whole arrangements take their lead from Ministers and the style in which business is done and what they perceive to be the kind of behaviour that is smiled upon and the kind of behaviour that is frowned upon. My concern at the moment would be the general apathy that is being created about this is that it is one of moving backwards and that cannot be a good thing in these circumstances. You have to keep up the momentum where people are looking in a much more ambitious way all the time. If you are looking for reasons not to do things it is extremely easy. You need devices and you need systems which put people under pressure to be more ambitious in terms of what it is possible to do". Lord Burns, Q.157
121. To what extent should authorities be obliged
to help applicants to find the information they need? At present,
the Bill lays the burden of proof on the requester: the authority
may refuse to comply with the request if it is not provided with
further information to help it find the information required.
Neither clause 8, nor any other provision of the Bill, contains
a specific duty on public authorities to assist complainants.
Instead, the Code of Practice referred to in clause 38 will include
(as a matter of good practice) provision relating to "the
provision of advice by public authorities to persons who propose
to make or have made, to them requests for information".
Mr Lee Hughes told the Lords Committee that the advice given to
applicants is a matter of good administrative practice. "It
is very difficult to put that in a form that is legally enforceable,
bearing in mind the whole range of public authorities that the
Bill will cover, from a single person, a general practitioner,
to a vast organisation like the Home Office. What advice and help
it is practical to give to an applicant would vary between those,
and we could not really see how you could make it something which
is actually enforceable. You would end up really resting on very
He added that the Code of Practice would encourage authorities
to correspond with or talk to an applicant in order to refine
the query and get agreement on what information is actually required.
In other Freedom of Information Acts there is a duty on public
authorities to assist requesters. The Irish Act, for example,
says that public bodies should give "reasonable assistance";
the Australian Act says that agencies should take "reasonable
steps to assist".
It is true that these Acts do not apply to the wide range of bodies
covered by the draft Bill (although the Irish Act extends to local
government and to health bodies). But in the overseas legislation,
authorities are required merely to do what is reasonable to assist
requesters: what is reasonable in the context of one authority
need not be regarded as reasonable with another in terms of their
respective resources. We recommend that authorities should
be obliged in the Bill to give requesters "reasonable assistance".
It would be appropriate in the Code of Practice to emphasise that
some people may require more assistance than others: it may often
be those who are least able to make a request in the proper way
who are most in need of the information.
122. The Irish Act places a specific duty on authorities
to publish "a general description" of the authority
and of the classes of information they hold.
The Home Secretary rejected the idea of placing a specific duty
on authorities to publish lists of their holdings. He accepted,
though, that "There is a good case for such registerswe
will look at itwhich are not exclusive, where it is not
implied that this is all the information that is held but amongst
the information held it includes these categories".
We believe that such information, even if partial, would be of
considerable help to requesters, and is a type of information
which authorities might be preparing in any case as a by-product
of the requirements that will be placed on them to improve their
records management systems under the Lord Chancellor's Code of
Practice. We recommend that the publication of registers of
information held by an authority be included as an element in
publication schemes (see para. 47 above).
Fees and charges
123. The charging provisions proposed in the Consultation
Document (they are not contained in the draft Bill itself) are
relatively liberal. They form an attractive and popular element
of the package. The Government proposes to charge up to 10 per
cent of the "marginal costs of providing information",
and the full cost of disbursements. Marginal costs mean staff
costs and any associated costs such as computer processing. "The
costs would relate to locating the information and preparing it
for disclosure, for example, any necessary editing to remove exempt
material or preparing a summary" (if one is requested). Disbursement
costs would cover copying, postage and the cost of a computer
disk, where appropriate.
Information will be exempt if the marginal cost exceeds £500.
This means that a straightforward request is very unlikely to
cost the applicant more than £50 plus copying costs and postage,
etc. However, if an authority makes a discretionary disclosure
under clause 14, it may be able to charge more. The Home Office
say that "where the cost of providing information exceeds
the cost ceiling provided for in regulations under clause 12,
an authority may well be prepared to supply the information if
more of its costs are met".
Personal information about oneself is covered by the Data Protection
Act, so a different regime will apply. The data user may charge
a fee of up to £10 for supplying the information from one
register entry (a similar regime was originally proposed in the
White Paper for the Freedom of Information Bill).
124. The charging regime adopted in the draft Bill
has a very difficult task to accomplish. On the one hand, it must
be low enough to ensure that applicants can effectively exercise
their right to information; on the other, it must not be so low
that authorities will give Freedom of Information requests a low
priority because of the costs involved. Some organisations are
undoubtedly worried by the potential costs. The Association of
Chief Police Officers (ACPO) said that one police force had estimated
that its own start up costs for implementation of the Act would
be £200,000, with recurring costs of £100,000 a year
Mr Argent, from ACPO, argued strongly that the increased burden
on police forces had to be recognised in increased resources,
if Freedom of Information were to be a reality.
The Government have calculated low and high assumptions for what
a Freedom of Information request would cost, based on the average
marginal cost of answering a Parliamentary Question which ranges
between £62 and £350. They say that as replies to PQs
provide information, but not copies of documents, it is unlikely
that the average cost of replying to a request under the Freedom
of Information Act would fall below that of answering a Parliamentary
They then suggest that the cost of consulting third parties might
raise the low cost assumption (but not the high cost assumption,
in which consultation with third parties is said to be already
On this basis, they have estimated the total cost to public funds
of implementing the proposals in the draft Bill is estimated by
the Government as between £90 million and £125 million.
The figure includes the cost of processing requests, the cost
of publication of information under publication schemes, and the
costs of training. These costs are intended to be absorbed within
existing resources. Mr Jonathan Baume of the FDA said that he
was sceptical of the estimate. He suggested that Ministers would
be unlikely to drop all their other plans because of the extra
demands caused by Freedom of Information requests.
125. The lack of extra resources, the low charges
that are to be allowed and, on the other side, the low level of
cost at which an authority is entitled to refuse to deal with
a request may combine to make for an ineffective regime. As Robert
Hazell observed, other countries have charged only for search
time and copying and have found that this represents only a fraction
of the total cost. Far more time is spent in reviewing the file
for possible exemptions, and in consulting with other agencies
and third parties.
We agree that there is a danger that the inability of authorities
to charge more realistic costs for dealing with requests may result
in their being inefficient and unhelpful; while the low level
of the appropriate limit may make it too easy for them to avoid
handling relatively simple, though bulky, requests. Robert Hazell
has even suggested that this area is the "fatal flaw"
in the Bill.
We recognise that there are dangers in the system proposed
for charging for requests. We believe, however, that the ability
to charge more realistic costs for requests which cost more than
£500 to deal with may (given the present structure of the
Bill) satisfy authorities that they will be able to recover the
costs involved in large and complex requests; and that the low
costs for easier requests will mean in practice that most authorities
will not charge for information. It will be essential to keep
the charging regime under continuous review to ensure that it
is working effectively and fairly.
126. Clause 10 of the Bill requires authorities to
respond to a request "promptly and in any event before the
end of the period of forty days beginning with the date of receipt".
Table 1 in the Consultation Document shows that 40 days is a longer
period allowed for response than under any of the other Freedom
of Information regimes that have been chosen for comparative purposes.
The Campaign for Freedom of Information states that the period
is "longer than [under] any overseas FOI law. It would make
Britain's FOI Act the slowest and most unresponsive in the world".
This is not necessarily true. Mr Daniel Brunet, the General Counsel
of the Office of the Information Commissioner of Canada, pointed
out to us that although section 7 of the Canadian Act provided
for a 30 day limit for handling requests, section 9 of the Act
allows an authority to extend the time limit "for a reasonable
period of time" if required because of the number of records
requested, the complexity of the search required, or the need
to consult third parties.
Similar provisions exist, usually to enable consultation to take
place, in the Irish Act, permitting an extension of four weeks
(s.8); in the New Zealand Act, allowing an extension for a "reasonable
period of time" (s.15A); and in the Australian Act, allowing
an extension for 30 days (s.15(6)).
127. The Home Office points out that an authority
is required to deal with the request "promptly": "the
Commissioner may serve a decision notice or an enforcement notice
on an authority which failed to deal with a request for information
promptly, even though it dealt with it within 40 days". The
period is the same as that allowed for in the Data Protection
Act 1998, and the Home Office argues that "since it is envisaged
that requests will be made for mixed information of personal and
non-personal information it seems sensible for the periods for
dealing with the requests to be the same".
There is no particular reason why 40 days should be chosen: as
the Data Protection Registrar told us, it was based in the original
Data Protection Act in 1984 on the capacity of old mainframe computers.
The Campaign for Freedom of Information, and others, have argued
that the limit should nevertheless be reduced, and if consistency
with the Data Protection Act is required, that it should be reduced
in that Act as well. There is a provision in the Bill for varying
the time limit by order. The Home Secretary told the Committee
that he suspected "that there will be pressure once the Bill
is in force for that maximum to be reduced".
128. The current Code of Practice commits departments
to respond to simple requests for information within 20 working
days. A number of departments have set themselves tighter targets.
The latest annual report on the operation of the Code says that
departments met either the 20 day target or their own tighter
targets in 94.8 per cent of cases.
The Code, of course, does not apply to all the organisations covered
by the draft Bill or the Data Protection Act, which include commercial
organisations, general practitioners, and so on. Also, the Bill
is retrospective, applying to old records which may be harder
to find. Yet reducing the time limit that currently applies for
dealing with requests to bodies already subject to the Code would
be a backwards step. As Dr Baxter argued, "it sends the wrong
signal to civil servants to relax 20 days to 40 days".
We recommend that the Secretary of State use the power given
him in the Bill to vary the time allowed for different kinds of
casesthough without making it too complex. In particular,
it should be no worse than it is already under the Code (i.e.,
20 days) for requests for recent information addressed to those
bodies under the jurisdiction of the Parliamentary Commissioner
though it might be somewhat longer for less recent information,
or for other bodies. Some overseas Freedom of Information
Acts include shorter periods for dealing with requests for important
cases in which there is a public interest, or where personal health
or safety may be protected by early disclosure.
It may be that the Commissioner would regard some circumstances
as providing a good reason for an authority to respond especially
promptly, and therefore this would be dealt with as a matter of
practice; but we recommend that provision be made, either through
the Regulations relating to time limits under clause 10, or through
the Code of Practice, making clear that genuinely urgent requests
should be treated expeditiously.
213 s.26(1). Back
and s.19 respectively. Back
Information Act, s.17. Back
(1998-99) 97, Q.111. Back
217 s.6(2). Back
218 s.15(3). Back
219 s.15(1). Back
220 Q.51. Back
6, Note 26. Back
6, Note 36. Back
3818, para. 2.31. Back
226 Q.580. Back
of Information: Preparation of draft legislation: Background
material, (Home Office, 1999)
229 Q.152. Back
231 ibid. Back
1097, 1099. Back
6, Note 27. Back
235 Q.202. Back
236 Q.47. Back
of Practice on Access to Government Information 1997 Report
p. 7. Back
238 Q.152. Back
USA Freedom of Information Act 1996, 5 USC S.552(6) E(ii)(vi). Back