House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs Fourth Report

2 PROPOSED CHANGES TO THE FOI CHARGING REGIME

READING, CONSULTATION AND CONSIDERATION TIME

10. Under the new proposals, the £600/£450 limits and the set rate of £25 per hour would remain the same, but (as we note above in paragraph 8) in addition to the time spent locating, retrieving and extracting information, authorities would also be able to take into account time spent reading the information, consulting other bodies about it and considering whether or not to release it.

AGGREGATION

11. Authorities are already able to aggregate related requests (i.e. to treat similar requests as if they were one request and compare the total time for dealing with them against the cost threshold). The proposed changes would also enable them to aggregate unrelated requests made within a 60 day period by the same person or organization, if it was "reasonable" to do so. The factors which an authority could take into account when considering if it were "reasonable" to aggregate (and then refuse) unrelated requests are set out in the consultation paper.[14] They include the level of disruption caused to the authority, whether the applicant is an individual or is acting in the course of a business or profession and the applicant's previous record, where their "conduct in relation to previous requests has been uncooperative or disruptive".[15]

12. The effect of these changes would be that the cost threshold would be reached for a greater proportion of requests. This would give authorities the discretion to refuse requests more often. No changes to the payment arrangements are proposed: information which can be provided within the cost limits would be provided free of charge, other than the same nominal charges for photocopying and postage.

The Government's case for change

THE REVIEW OF THE CHARGING REGIME

13. Last year, the DCA told us that during the passage of the fees regulations through Parliament, DCA Ministers had committed themselves to reviewing them after the first 12-18 months of operation. It stated that:

"Contrary to media reports the Government has no "secret plan" to introduce deterrent fees. The purpose of any potential review will be to ensure that the Act is working well and that the fees regime continues to balance public access rights with the needs of public authorities to deliver services effectively."[

14. During our current inquiry, we asked Baroness Ashton whether this review had been carried out. She told us that the DCA had received "a degree of anecdotal evidence from organisations about the pressures they were facing", and that as a result, the DCA had commissioned the Frontier Economics review.[17]

15. The Frontier Economics review found that "a small percentage of requests and requesters were placing disproportionately large resource burdens on public authorities". [18] This finding was used by the DCA as the rationale for change in the Partial Regulatory Impact Assessment in the first consultation document ("the RIA").[19] The Campaign for Freedom of Information (CFOI) pointed out that the existence of some particularly time consuming-requests was not in itself significant, stating that "it is of course a statistical feature of any normal distribution of requests that some will be much more expensive than the average" and that "this will continue to be the case even if the current proposals are adopted."[20]

16. The Information Commissioner re-iterated his view to us that the existing charging regime was working well and no changes were necessary at this stage.[21] He told us that during the first two years full operation of the FOI Act, his office had received a total of almost 5,000 complaints, but of these only 32 related to the cost limit provisions.[22] Many of the examples of troublesome requests cited in the Frontier Economics review, and by Ministers, have related to vexatious requests.[23] The Commissioner again expressed surprise that more use had not been made of section 14 of the Act, which absolves public authorities from the obligation to comply with such requests, and told us that in his view "much of the 'mischief' which the draft regulations are apparently designed to address can be addressed using the existing provisions of the Act."[24]

17. No clear evidence to support the DCA's decision that a change to the charging regime was necessary has been published. The data in the Frontier Economics review is not a satisfactory substitute since it merely confirms that the various change options would reduce requests rather than presenting a cogent argument to explain why such changes were considered necessary.

18. We have no evidence to indicate that the Government has adequately reviewed whether the existing charging regime balanced public access rights with the needs of public authorities to deliver services effectively, before examining ways of reducing compliance costs. Furthermore we have not heard sufficient evidence from the Department to support the need for a radical change in the arrangements for charging for Freedom of Information requests.

COST-BENEFIT ANALYSIS

19. The Frontier Economics review estimated that the total annual cost of delivering FOI was around £25m per year for central government (£35m in total for the entire public sector) and then considered ways of reducing this amount.[25] According to the RIA:

Despite this acknowledgment that it did not know the costs, the Government reached the conclusion in the same document that "the benefits of introducing the proposed changes would outweigh the costs."[27] The evidential basis for this conclusion is not clear.

20. Witnesses gave us many examples of the benefits derived from FOI.[28] We were particularly impressed by the variety of examples provided by campaigning organisations, and the benefits of their work for members of the public. The World Development Movement described how its scrutiny of DFID aid spending of £13m for a water project in Guyana had revealed that Severn Trent Water International had failed to meet five of seven objectives set in the contract.[29] Bail for Immigration Detainees, a registered charity which challenges immigration detention in the UK, told us how it had used FOI to improve scrutiny of Home Office decisions to detain, and in particular to challenge the detention of children.[30] The Centre for Corporate Accountability explained how FOI had helped support its work in providing free, independent and confidential advice to families bereaved from a work-related death.[31] Other examples of benefits derived from information released as a result of FOI were provided by The Guardian[32] and many similar lists are published elsewhere.[33]

21. One of our witnesses noted that the DCA's assessment of costs of the FOI Act had not followed standard Treasury guidance to assess benefits as well as costs, and suggested various areas of benefits which could usefully have been assessed by the DCA.[34] These were:

Has the operation of the Act helped to reveal cases where public resources may be being misused or wasted?
Has the operation of the Act helped to identify cases where the operation of machinery of government has been less than satisfactory?
Has the operation of the Act helped to formulate guidance or training in Government operations?
Has the operation of the Act improved confidence in public administration?
What benefits have citizens felt from the operation of the Act?
Has the operation of the Act produced any reductions of costs or increase of benefits for other agents in the economy?

22. No consideration was given to the particular benefits associated with those requests which required more consideration by the authority prior to its release. The FOIA Centre pointed out that "the very FOIA requests alleged to be particularly costly tend to be the ones most effective at using FOIA to hold public bodies to account".[35] The DCA told us that it did not know anything about the nature of the 'time-consuming' requests which it is seeking to block, telling us that "the Frontier Economics research was blind on the nature of the request" because the DCA's concern was "only with requests that impose disproportionate burdens … regardless of what information has been requested."[36]

23. The Government did not attempt to define what it would regard as an acceptable cost for delivering FOI, nor explain why the current cost was too much. The Guardian told us that:

24. The evidence provided by the DCA did not address some of the matters which we would have expected to have been thought through carefully. For example, there was no discussion in the Regulatory Impact Assessment or elsewhere of:

the possibility that some costs associated with decision making would reduce after the first few years, once officials were able to refer to an established body of case decisions;
ways in which costs could be reduced by making better use of existing provisions in the Act or by streamlining officials' decision making processes;
additional costs which would arise from introducing the new charging regime such as the costs of new guidance, training and administrative procedures and the staff time involved in additional internal reviews and complaints to the Information Commissioner. (Witnesses, including Clifford Chance, The Odysseus Trust and the BBC pointed out to us that the new regime would require new administrative procedures to be introduced in public authorities and that these would inevitably lead to additional internal reviews and appeals.)[38]

25. The Frontier Economics review identified the likelihood that requests for reviews would increase as a result of the proposed changes.[39] The Information Commissioner agreed that the proposed new regime would lead to an increase in the number of internal reviews for public authorities and a significant increase in the volume of complaints. He estimated that there would be between 600 and 2,000 additional complaints a year to his Office, based on the figures published in the Frontier Economics review, and that his office would require additional funding of between £300,000 and £1m per year to deal with these additional cases.[40] Otherwise "there would be very undesirable implications … in terms of the resolution of cases".[41] Baroness Ashton confirmed to us that she was aware of the Commissioner's estimates of the likely additional costs for his Office,[42] but this information was not made available to the public in either of the DCA's consultation documents. Instead, the RIA stated that "the costs to public authorities of these proposals would be minimal".[43]

26. In our previous inquiry, we saw considerable evidence of unnecessary delays in responding to requests for information on the part of some public authorities. The Government has taken no account of the likelihood that some time spent by public officials dealing with FOI requests is unnecessary. Instead, it is proposing a regime which would reward slow and inefficient authorities by providing a mechanism for refusing requests which an authority chose not to process promptly.

27. The cost-benefit analysis used to support the proposed new regime is insufficient. The costs to the public of reduced access to information are ignored, the additional costs of the proposed new regime are omitted and alternative ways of making information provision more efficient are not considered.

28. The poor quality of information presented in the cost-benefit analysis, in particular the lack of information about the benefits of FOI to the public, suggests that little effort was made by the DCA to balance public access rights against the needs of public authorities to deliver services effectively. The focus of the DCA's work has been entirely on cost reduction, despite the absence of any evidence that such measures were necessary; there is no evidence that the DCA took steps to assess the benefits of the present regime.

BASIS FOR DECISIONS ABOUT COSTS

29. The DCA case in favour of the reforms involved the argument that discussions about costs would be reached using objective criteria and that these decisions would be subject to independent review. For example, Baroness Ashton told us that the new regime would be "absolutely transparent" and subject to "a robust and open process" of review.[44] Vera Baird MP, Parliamentary Under Secretary at the DCA, gave similar assurances to Members during a Westminster Hall debate on FOI:

30. Witnesses questioned whether the proposed regulations could be implemented objectively, and instead explained to us why they believed that the provisions would be open to manipulation.[46] The proposal to include time for reading, consultation and consideration in the cost estimate would require authorities to estimate how long they expected to take on each of these activities and compare those estimates against the cost threshold. If the cost threshold was exceeded, authorities could refuse to provide the information and it would then not be necessary to conduct any of the predicted work. We asked Baroness Ashton how she could ensure that all public authorities used a fair and consistent framework for preparing these estimates. She told us that "it would be very possible" to put in place a costing framework for reading time which would set out expectations of the time taken to read per page:

31. The Information Commissioner disagreed that setting a fixed reading time per page would avoid the potential for authorities to manipulate reading time estimates, stating that:

32. Creating a framework for consultation and consideration time is even more difficult. The CFOI explained the problem:

The Information Commissioner agreed, stating that "the process of estimating the time which might be spent on the various activities which can be included when calculating whether the cost limit has been reached is thus uncertain, subjective and open to exaggeration, if not abuse."[50]

33. The Guardian pointed out that consideration and consultation time estimates would often anyway be higher for the most controversial information:

34. The proposal to enable authorities to aggregate unrelated requests where "reasonable" would also pose problems. The Information Commissioner told us that he had "grave doubts about the extent to which the aggregation of non-similar requests would be workable in practice, particularly if determined applicants took steps to circumvent the new provisions."[52] The Odysseus Trust explained why this proposal would be open to abuse:

35. With regard to the independent review process, the Commissioner told us that he could not "be optimistic that any defensible systematic approach could be adopted and used by practitioners".[54] He explained that:

36. We are convinced by the evidence presented to us that the measures proposed by the Department could either actually be manipulated by public authorities wishing to avoid disclosure of information, or seem to be so, and that it would be difficult and time-consuming to implement a system of review which challenged such real or apparent manipulation in an effective and systematic way. We note in particular that the Information Commissioner, who would be integral to the review process, is not persuaded that this system is able to be solved as simply as the DCA believes. The objection that the most serious questions are the most time-consuming is especially serious — whether a public authority was deliberately being slow with its response or not, the nature of careful, wide consultation on matters of great importance will tend to put requests for information that is potentially embarrassing for the public authority in the frame for being ruled out for response on the grounds of cost.

37. We have not received any convincing evidence that the new regime would be sufficiently transparent and subject to adequate review. It is unclear how a framework for independent review would operate. We conclude that the proposed regime could result in public authorities avoiding answers to embarrassing, contentious or high-profile cases as the number of internal consultees rises in proportion to the sensitivity of particular requests.

NUMBER OF REQUESTS AFFECTED

38. In its first consultation paper, the DCA stated that "the significant majority of requests submitted by applicants under the Act would not be affected by the proposed changes". The proposals would only affect "any applicant submitting one of the small percentage of requests (four per cent) that result in reading, consideration and consultation time imposing disproportionate burdens for public authorities, and the small number of applicants who use the Act very regularly, and impose disproportionate burdens by doing so."[56] This clearly contradicted the data in the Frontier Economics review which estimated that around four times this number of requests would be affected.[57]

39. Witnesses considered that the impact would be even greater than the proportion predicted by the Review, partly because of the scope for public authorities to consult widely, as we have explained in the previous section of this Report. The view of the Information Commissioner was that the changes would "arrest the flow into the public domain of a very significant amount of information of genuine public interest which has been such a striking achievement since the Act was fully implemented in January 2005."[58] The National Council for Voluntary Organisations told us that the proposed changes would severely curtail the ability of individuals, organisations and the media to hold government and other public authorities to account.[59] The BBC made the important point of principle that "the proposed changes would actually obstruct the aim of increasing transparency and openness in public life that lies behind the government's introduction of FOI" and that from its perspective as an authority receiving requests, it saw "absolutely no need for the measures that are being proposed."[60]

40. The Odysseus Trust described the proposals as "a severe and unnecessary restriction upon freedom of information and expression" and questioned why the Government was proposing to block requests, rather than to provide applicants with a right to contribute to the costs of providing the information they required:

41. Last year, Baroness Ashton told us that the Government wished to minimise the amount of public money spent on handling requests for trivial information. This year she told us that some "completely legitimate requests" would be refused under the proposed regime.[62] She explained that the proposed regime would create a situation where the discretion to provide information would ultimately rest with public officials. This would most typically be the case where the requesters were unable to refine their requests in a way which met the needs of the relevant public officials.[63] She told us that:

42. Whilst the Government's intention may have been to target a minority of particularly burdensome requests, it is clear to us that the actual impact of the proposed new regime would be far more extensive. The regulations are drafted such that they would, for all but the simplest requests, severely limit an individual's right to know. To introduce a charging regime which requires applicants to negotiate the terms of their requests with public authorities, and which enables officials to refuse requests from applicants who do not collaborate with them, is a direct reversal of the open government principle that is a fundamental purpose of the FOI Act.

43. There is no objective evidence that any change is necessary. The cost-benefit analysis provided with the Government's consultation papers is incomplete. There is clear evidence that the proposed amendments could be open to manipulation and abuse. There is no sign that any consideration has been given to proper funding of the independent review process. The proposed measures have the scope significantly to reduce the flow of information into the public domain. We recommend that the proposed new charging regime be withdrawn.

44. The Ministry of Justice should now focus on improving compliance with the existing provisions of the FOI Act and on reducing the delays encountered by requesters seeking information. Any future proposed changes to the charging regime must be supported by a firm evidence base and take proper account of the impact they would have on the benefits which the public derive from FOI.

14 DCA first consultation paper, para 39 Back

15 Ibid Back

16 Constitutional Affairs Committee, Seventh Report of Session 2005-06, Freedom of Information - one year on, Ev 50 para 6 Back

17 Q 51 Back

18 Frontier Economics review, p2 Back

19 DCA first consultation, pp31-32 Back

20 CFOI response to DCA consultation p18, www.cfoi.org.uk Back

21 Ev 24 para 2 Back

22 Ev 24 para 3 Back

23 Frontier Economic review p3; 18 April 2006 Q80; HC Deb,23 October 2006 col 1361 Back

24 Ev 24 paras 5-7 Back

25 Frontier Economics review pp1-3 Back