Ninth Standing Committee on Delegated Legislation |
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Mike Gapes: Does the appropriate limit apply to the Data Protection Act as well as the Freedom of Information Act, or are they subject to different rules? Mr. Leslie: They overlap. The definition of the appropriate limit in respect of public authorities affects the costs of subject access requests, and the compilation of those, and the appropriate limit above which discretion can be applied by public authorities for requests under the Data Protection Act and the Freedom of Information Act. If I could just make a little progress, I might help my hon. Friend. The regulations do not alter the standard fee of £10 that can be charged under the Data Protection Act for subject access requests. Subject access information that was available under the original version of the Data Protection Act is unaffected by the regulations. The main features of these regulations were announced in a speech by the Lord Chancellor on 18 October 2004 and were laid before Parliament last December, in time to come into force at the beginning of January, and comprehensive guidance on the fees regime was made available shortly afterwards. The regulations prescribe how public authorities can calculate the maximum amount that they may charge for answering an information request. However, authorities are free to charge a lower amount or to waive the fees. Column Number: 12 The hon. Members for Orkney and Shetland and for Huntingdon asked why the regulations were introduced so late. Of course, there were similar draft regulations at the time of the Bill. Several changes were made, but, as I said, we did announce them in October, so there was plenty of time for planning. Also, the removal of the £10 flat fee for all cases is designed to make it easier for applicants and public authorities to operate for the vast majority of requests. Therefore, it was an aid to have this change to the regulations rather than making matters more complicated by having the regulations announced in October. The most important aspect of the regulations, as the hon. Member for Huntingdon pointed out, is what is known as the appropriate limit, which I described earlier. The right to access information must be balanced with the needs of public authorities to carry out their other essential functions. However, the Act also requires authorities to offer advice and assistance to requesters in all cases, including those in which the appropriate limit is exceeded. For example, an authority might work with the applicant to narrow the scope of the request to bring it within the appropriate limit, or it might agree to provide information up to the value of the appropriate limit. If an authority estimates that the cost of answering an information request would exceed the appropriate limit, it can, subject to the requirement to provide advice and assistance, offer to answer but charge a fee in accordance with the regulations, answer and waive the fee, or turn down the request. If the public authority decides to answer the request for a fee, the choice falls to the applicant to decide whether he or she is willing to pay it. The hon. Member for Huntingdon asked whether public authorities should have discretion to refuse to answer a request if it is over the appropriate limit. As I said earlier, if we did not have that, or if there were automaticity such that a requester who paid the fee would be able to have the information—for instance, any information that the Foreign Office holds about France—it could be debilitating and destabilising to good governance. That is why there must be discretion in the case of voluminous amounts of information. That is not to say that the vast majority of requests will not come under the £600 and £450 limits. Like parliamentary questions, the vast majority will be answerable. Mr. Michael Wills (North Swindon) (Lab): I am grateful to my hon. Friend for giving way. I begin my intervention by paying tribute to the way in which he and his officials have implemented this important legislation. We should start by complimenting them rather than by carping, as the two Opposition Members have done. Would the Minister amplify and clarify something in the regulations? Regulation 4(3) states that
What is his view of a reasonable incurring of such expense? Clearly, a public authority that has taken good steps—electronic records management, for example, which the Government have been urging on
If I may trespass on my hon. Friend’s time once more, I would like him to clarify one further thing. As far as I can see, under the regulations there is no differential provision for fees being charged. In other words, there is the same provision for fee charging for all categories of request. However, we know from overseas experience that quite a lot of the requests are likely to come from businesses. I ask my hon. Friend—I think that he has already said that the fee structures are not set in stone and will be under constant review—to carefully consider how the Freedom of Information Act plays out in practice, and to bear in mind the possibility of charging differentially for businesses, who use it for the purposes of their own commercial advantage, and for citizens, who use it as an exercise of the right that is inherent in their citizenship. Mr. Leslie: With that short, but beautifully formed intervention— The Chairman: Do not tempt him. Mr. Leslie: I would like to put on the record my thanks for my hon. Friend’s contribution in forming the legislation and regulations. His time as a Minister involved touching on some of these subjects. He is right that there was a debate, particularly during the passage of the Freedom of Information Act, about whether there should be differentially applying fees. He made the point about businesses making requests for commercial purposes and asked whether there should be a differential fee level. We decided against that in the end, on the grounds that we felt that requesters should be treated equally and that we should have a purpose-blind system of regulations. Obviously it is early days when it comes to telling whether there is a particular burden coming from businesses making requests for commercial purposes. We have already said on the record that the fees regulations will be reviewed in a year or so to see how they are working. I will bear my hon. Friend’s comments in mind. The other point that my hon. Friend made was similar to that raised by the hon. Member for Orkney and Shetland. Mention was made of whether the reasonable and appropriate limit of what could be calculated was almost giving public authorities a perverse incentive to be tardy, not to have good record-keeping and not to update to electronic records management. In that case, requests would naturally be more expensive and therefore they would be more likely to reach the appropriate limit sooner. We do not want that perversity in the system. The Information Commissioner has indicated that he will clamp down very hard on authorities that charge high fees simply because their records management systems are poor.
Mr. Carmichael: Many of the concerns that I have expressed on that point would be assuaged if the Minister were to give some assurance to the Committee that the Government will monitor the number of cases in which information is not disclosed for that reason, and perhaps report the progress to the House and keep that matter under review. Mr. Leslie: I imagine that in 12 or 18 months’ time, when we come to look at the fees arrangements as part of the process of keeping them under review, there will be public discussion and disclosure of many of our findings. I do not want at this stage to say whether there is a problem. We simply do not know. It is very early days as yet—although we are getting thousands of requests and dealing with them as quickly as can be done. It might help if I touch on how we calculate whether the appropriate limit has been exceeded. It will often be immediately obvious to a public authority that the cost of answering a request will not exceed the appropriate limit. For example, the minutes of a recent meeting are likely to be easy to locate and relatively easy to prepare for release. The public authority will not need to estimate the cost of such requests for the purpose of charging. A public authority will need to consider only whether the appropriate limit might be exceeded by answering larger or more complex requests. Even then, it is up to the public authority to decide whether it wishes to estimate the costs for charging purposes. In calculating whether the appropriate limit has been exceeded, the public authority may take account of only those costs associated with, first, determining whether it holds the information—that in part answers the question of the hon. Member for Huntingdon—secondly, locating and retrieving the information and, thirdly, extracting the information from a document containing it. In so far as those costs relate to staff time, they should be calculated at a standard rate of £25 per hour. Those are the only costs that may be included when calculating the appropriate limit. Importantly, authorities cannot take account of the cost of considering whether information is exempt under the Act, including the cost of seeking legal advice. It would not be right to expect applicants to bear such costs when the information might not be released because it is exempt. As I said before, most requests will cost less than the appropriate limit to answer. The regulations prescribe that when the appropriate limit has not been exceeded, an authority can charge only for the costs of informing the requester whether it holds the information and communicating the information to him or her. For example, that includes printing, postage and photocopying costs, commonly known as disbursement costs. Authorities can charge for actual disbursement costs, but those charges are expected to be reasonable. The guidance suggests that
I will now answer some of the points made by the hon. Member for Orkney and Shetland, particularly on how many schools have publication schemes. The Information Commissioner’s office has the responsibility for administering and enforcing publication schemes. I understand that the office has agreed to a model publication scheme for schools to make it easier for them to devise a scheme. I do not currently have specific information on the precise number of schools that might be having difficulties with publication schemes. The hon. Gentleman also asked about the concerns expressed to the Lord Chancellor by Mr. Maurice Frankel and the freedom of information campaign in particular about the code of practice and changes that were debated on another occasion. The new code of practice was a simplification. It ensured that we talked about statutory obligations and had separate guidance on non-statutory aspects. It might be more appropriate if I offered to send a copy of the Lord Chancellor’s reply to Mr. Frankel to the hon. Gentleman and other Committee members, so that they can see the details of that point. I was asked whether VAT would be chargeable on fees. Inspiration has struck me as we have been debating, and I have found it interesting. VAT will not be chargeable if the information is available only from that public authority, but would be if the information could be gained from another source or if, for example, a publication scheme contained that source. That is the rule on when VAT is to be chargeable. The hon. Gentleman also asked about the winding up of the Lord Chancellor’s Advisory Group on Implementation of the Freedom of Information Act. It was always our intention, particularly as we moved into the process of implementation, that the group would reach its natural conclusion when the Act came into force. That is why we have moved into a different phase. Column Number: 16 The hon. Member for Huntingdon asked about funding for local authorities and had concerns about appropriate transfers. Yes, we have made appropriate transfers to cover the costs to local authorities under the principle of the new burdens doctrine. There was a recognition of that in the revenue support settlement for local authorities. Mr. Djanogly: I thank the Minister for giving way. He has been helpful in his replies today. Where the appropriate limit has been exceeded and the authority decides not to release the information, what redress does the applicant have? Can they appeal under section 50? Mr. Leslie: My understanding is that the appeal process would be as normal. There would be the internal review, the matter would then go to the Information Commissioner and then it would go on to the information tribunal. To clarify the precise steps for the hon. Gentleman, I will send him a letter. Mike Gapes: Before my hon. Friend concludes, may I reiterate my question about the relationship of this legislation to the Data Protection Act? Does the appropriate limit now apply with regard to that Act and requests under it? Mr. Leslie: It does so in respect of the Data Protection Act’s application for public authorities. There is read-across in that sense for the definition of the appropriate limit for unstructured personal information and subject access request—not all personal information, but unstructured personal information. I hope that that helps to answer my hon. Friend’s question. I believe that the regulations are crucial to the smooth running of the Act. We aim to strike a balance between allowing access to information and enabling public authorities to carry out their other duties. Without such a limit, public authorities would potentially have to answer all requests, no matter how large, subject to the usual exemptions. I hope that we have managed to find a generous fees system in the regulations. Most applicants will receive their information at little or no cost. Since the announcement, it has been broadly welcomed by all and I hope that we can agree the regulations as they stand. Question put and agreed to. Resolved,
Committee rose at twenty-eight minutes to Four o’clock. |
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