House of Commons - Public Administration

Select Committee on Public Administration Third Report

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 costs.

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 exemptions—both 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" (clause 13).

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.[213] The Irish and New Zealand Acts contain equivalent provisions.[214] 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.[215] 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

Assisting requesters

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 vague generalities".[216] 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"[217]; the Australian Act says that agencies should take "reasonable steps to assist".[218] 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.[219] 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 registers—we will look at it—which 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".[220] 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.[221] Information will be exempt if the marginal cost exceeds £500.[222] 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".[223] 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).[224]

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 thereafter.[225] 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.[226] 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 Question.[227] 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 allowed for).[228] 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.[229]

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.[230] 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.[231] 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.

Time limits

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".[232] 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.[233] 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".[234] 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.[235] 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".[236]

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.[237] 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".[238] We recommend that the Secretary of State use the power given him in the Bill to vary the time allowed for different kinds of cases—though 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.[239] 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

214 s.8(2) and s.19 respectively. Back

215 Official Information Act, s.17. Back

216 HL (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

221 Annex 6, Note 26. Back

222 para. 59. Back

223 Annex 6, Note 36. Back

224 Cm. 3818, para. 2.31. Back