Appendix
RESPONSE TO CONSULTATION ON DRAFT FOI AND
DP (APPROPRIATE LIMIT AND FEES) REGULATIONS 2007
INTRODUCTION
1. This paper is the ICO's response to the
DCA Consultation Paper 28/06 issued on 14 December 2006. It makes
a number of key points:
— a more robust application of
section 14 (exclusion of vexatious requests) would, to a very
significant extent, address the mischief at which the new cost
proposals purport to be directed;
— there are 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;
— the proposed concepts of reading,
consultation and consideration time, will present very real difficulties
for challenge and adjudication;
— the proposals will introduce
new layers of procedural and bureaucratic complexity. There is
likely—as feared by Frontier Economics—to be "a
substantial increase in requests for internal review and appeals
to the ICO, with a substantial increase in costs";
— there will certainly be a surge
of difficult procedural complaints to ICO which can be predicted
to start no less than two months after the new Regulations have
been implemented. Unless further resources are made available,
regrettably, the net effect—at least for the forthcoming
year—has to be the prospect of more time taken to resolve
difficult cases, an increase rather than a reduction in the backlog
of complaints and the diversion of resources onto complaints about
costs rather than substantive issues of disclosure of official
information in the public interest.
2. The ICO accepts that the policy content
of this proposed legislation is a matter for government, subject
to the necessary Parliamentary approval. In its role as adjudicator
on complaints made under the FOI Act and promoter of good practice
by public authorities, the ICO is primarily concerned with the
practicality of implementing the proposed measures and their likely
practical effect.
3. The ICO notes that the stated intention
is to target the small percentage of requests and requesters that
impose the highest burdens on public authorities. Such an approach
encourages public authorities to look primarily at the cost of
compliance and the identity of requester rather than the public
interest in the disclosure of the information sought.
4. By way of general comment, the ICO remains
very surprised that public authorities are not using the provisions
of section 14 of the FOI Act more frequently or more effectively.
This section removes the obligation on a public authority to comply
with a request if it is vexatious. The ICO and the DCA have both
issued guidance for public authorities on the application of section
14. The ICO has issued decision notices in relation to complaints
on this point upholding the decisions of a number of public authorities
that requests were vexatious (Birmingham City Council—ICO
ref: FS50078594; Warwickshire County Council—FS50069395;
Sussex Police—FS50099691; Cabinet Office—FS50099755;
London Metropolitan University—FS50085398; Crown Prosecution
Service—FS50130467; National Archives—FS50102437;
Treasury Solicitors—FS50105213).
5. The ICO believes that a more robust application
of section 14, in line with the published guidance and decision
notices, would, to a very significant extent, address the mischief
at which the new cost proposals purport to be directed.
THE PROPOSALS
Aggregation
6. The ICO has 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. Public authorities and the ICO
already have experience of requests being made by the same people
using different addresses. Many requests are handled electronically
and the actual identity of a requester using an email address
can often not be linked to the same person making a request from
a postal address. It would also be very easy for requesters to
find proxies to make requests on their behalf.
7. Given that those targeted are identified
in the consultation paper and in the Frontier Economics report
as "experienced" users of the Act, many of whom have
a professional interest in obtaining information from public authorities,
it seems likely that they would be quick to identify legitimate
means of circumventing the aggregation rules. Public authorities
would find it difficult to identify and challenge such actions.
Indeed doing so would in itself be a time consuming business.
In addition, aggregation can—and doubtless will—be
challenged by way of an internal review and a complaint to the
ICO.
8. The aggregation proposals are not tempered
by any duty to consider the public interest in disclosing the
information requested.
ESTIMATING WHETHER
THE COST
LIMIT HAS
BEEN REACHED
Reading Time
9. There is an inherent difficulty in standardising
the approach to calculating the time it takes to read and examine
information held. Recorded information is held in a variety of
formats and varies in complexity. Font size, paper size, the use
of diagrams, tables and illustrations will all have a bearing
on reading or examination time. An average might be used for the
purposes of a "ready reckoner". However, it would be
very easy for a public authority creating, say, a report which
it wanted to keep out of the public domain to increase the font
size and the margins to increase the number of pages comprising
the report, thus boosting the assessed cost of complying with
a request for it.
Consultation Time
10. Decisions on the extent to which third
parties should be consulted will be a matter for the public authority
receiving the request, although they are guided by the Code of
Practice under section 45 of the Act. Once again, however, it
would be possible for a public authority to embark on unnecessary
but not unreasonable consultation with a view to avoiding compliance
obligations under the FOI Act.
11. The Frontier Economics report highlights
the issue of consulting Ministers, stating that this is "the
most expensive stage of work for the average central government
request". The consultation paper and the regulations are
not clear as to whether time spent consulting Ministers would
count as consultation time for these purposes. The ICO's view
is that a Minister within a department cannot be a consultee for
these purposes, as their involvement in handling the request is
not as a third party. The ICO recognises that a Minister may be
involved in the consideration of a request, in particular where
he or she is the "qualified person" for the purposes
of section 36 of the Act and the applicability of that exemption
is being considered. However, this is not consultation for the
purposes of calculating the cost of compliance with the request.
12. The ICO notes that, in any event, Ministers'
time is to be costed for these purposes (ie consideration time)
at the standard £25 per hour (draft reg 4(2)) as indicated
by Vera Baird MP, Parliamentary Under Secretary of State, when
responding to a question in the House of Commons on 17 October
2006.
Consideration Time
13. Consideration time is likely to be the
most difficult to estimate accurately for these purposes. By the
same token, it will present very real difficulties for challenge
and adjudication. There will be a number of key issues, including:
— How much time has in fact so
far spent on consideration?
— How much further time would
be involved?
Experience over many years with recording, challenging
and approving historical (not prospective) litigation costs—where
time-recording, scale costs and various types of experts are usually
involved—demonstrates the difficulties which lie ahead for
all concerned. Even if time-sheets or similar means to record
the use of officials' time were to be introduced, the tasks will
be daunting. The estimate of time required for the activities
in draft regulation 6(2)(e) and (f) (considering the applicability
of exemptions and the public interest test) in particular could
easily be inflated artificially. This will particularly be the
case where multiple exemptions could apply, even though the compliance
issue could quickly have been determined by reference to one exemption
only. The lack of any bench-marks as to "reasonableness"
will compound the challenges, especially until the Tribunal, and
possibly the courts, begin to give definitive guidance by ruling
on individual appeals.
COMPLAINTS TO
THE ICO
14. 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.
This makes it all the more likely that there will be further challenge
when the Regulations are invoked to resist a request. Public authorities
themselves would be the first to experience this. In real terms,
the cost of this to the public authority will be high because
the principles of internal review, embodied in the Code of Practice
under section 45, include a requirement that the reviewer should
be more senior than the original decision-maker.
15. Once the internal review has been completed
(or if none has been completed within a reasonable time scale)
the ICO will need to investigate any complaint it receives. This
is likely to lead to a significant increase in the volume of complaints
received by the ICO.
16. The proposals will introduce new layers
of procedural and bureaucratic complexity. This point is recognised
in the Frontier Economics report and reflected in the following
extract from the executive summary (page 8):
"If practitioners do not take a systematic
approach, there is likely to be a substantial increase in requests
for internal review and appeals to the ICO, with a substantial
increase in costs".
17. The ICO is concerned that this may precisely
be the consequence of the introduction of the new proposals and
cannot be optimistic that any defensible systematic approach could
be adopted and used by practitioners, at least in the short term.
18. Throughout 2005, during the first year
of FOI complaints-handling, one of the features was the high volume
of procedural complaints received by the ICO, particularly regarding
non-compliance with time limits. However, in the first two years
together the ICO received only 32 section 12 complaints (ie complaints
about the application of the cost limit) out of a total of almost
5,000.
19. Issues regarding the ICO's complaints-handling
performance during that period are well documented and the most
up-to-date account appears in our Progress Report, published in
October 2006. There remains a significant backlog of complex complaints
which are proving difficult to resolve. Slow but steady progress
is being made in reducing this backlog. However an influx of significant
numbers of new complaints about the application of new cost and
aggregation rules will present a very serious set-back. The temporary
additional resources for FOI complaints-handling made available
to the ICO for 2006-07 will run out at the end of March 2007,
apparently with no prospect of further funding above a baseline
of £4.7 million for 2007-08. There will be a new surge of
novel and potentially difficult procedural complaints which can
be predicted to start within two months of the new Regulations.
The net effect for the forthcoming year, regrettably, has to be
the prospect of more time taken to resolve difficult cases, an
increasing rather than decreasing backlog of complaints and the
diversion of resources onto complaints about costs rather than
substantive issues of disclosure of official information in the
public interest.
20. Although it is impossible to predict
the numbers with any accuracy, it seems reasonable to expect that
there will be a significant proportion of challenges to refusals
on cost limit grounds in the months immediately following the
implementation of regulations as currently proposed. This can
be expected all the more because the requests targeted are those
made by experienced requesters. This will generate a new species
of complaint which will differ from those which the ICO (and internal
reviewers) have so far had to consider.
21. Using the estimates in the Frontier
Economics report, approximately 20,000 FOI requests per year would
be eligible for exclusion from consideration as a result of the
measures now proposed in the draft regulations. If only 10% of
these resulted in complaints to the ICO, this would see an annual
increase in complaints to us of 2,000. In numerical terms this
would almost double the current number of FOI complaints received
annually by the ICO.
22. It is accepted that such a high proportion
of complaints is unlikely to be sustained beyond, say, the first
year of implementation. It is also accepted that where requests
have been excluded from consideration on cost grounds, that request
will not itself generate a substantive complaint about non-disclosure
as the matter will not get off the ground. However, these long
term effects will not be felt by the ICO for some years. In the
meantime, with the current level of resources, the backlog would
inevitably continue to build.
23. In order to handle the projected influx
of cost limit and aggregation complaints, a discreet team of complaints
officers will be needed to ensure that these complaints are addressed
as quickly as possible. Until the eligibility of a request refused
on cost grounds has been considered, it will not progress any
further. It therefore seems right that some priority should be
given to these cases so that, where appropriate, the request can
be remitted back to the public authority for substantive consideration.
Given the ICO's experience to date of public authorities failure
to fulfil adequately its obligations under section 16 (advice
and assistance to requesters) in cases where the current cost
limit has been invoked, priority for these cases seems particularly
appropriate.
24. Without additional (temporary) resources
to cover this new work there will, however, be inevitable knock-on
effects for the FOI complaints caseload as a whole. The overall
backlog, already a matter of serious concern, will increase further.
COMMUNICATING THE
ESTIMATE
25. One final, but important point on the
draft regulations is the notable absence of any requirement on
the public authority to communicate its estimate of cost to the
applicant. Section 17(5) of the Act simply requires the public
authority to give the applicant a notice stating that section
12 applies. If the proposals are implemented it is fundamental
that such a notice should include the estimate of costs, broken
down for each activity, so the applicant can see how the estimate
has been reached, particularly by reference to the additional
costs threshold and the additional costs ceiling. This should
be a requirement of the regulations.
QUESTIONNAIRE
26. The consultation paper invites response
to 7 specific questions. The ICO notes that these questions all
assume that the key proposals in the consultation paper are accepted.
The responses to these questions must be considered in the context
of the ICO's response generally.
Q.1 The ICO does not believe the regulations
will ensure consistent calculation of the appropriate limit, nor
does the ICO believe that this could be achieved by adopting a
more prescriptive approach.
Q.2&3 The inclusion of thresholds
and ceilings for each activity is a welcome element of the proposals,
if they are to be adopted it will ensure a more balanced approach
to the issue of reaching the cost limit.
Q.4 The ICO questions the practical efficacy
of extending the aggregation provision.
Q.5 Factors to be taken into account
should be included in guidance rather than enshrined in legislation.
Q.6 They may all be relevant factors
but they are not an exhaustive list (so should not be included
in the regulations.) There may be others which are relevant in
individual cases.
Q.7 The ICO supports the production of
guidance which covers both EIRs and the FOI Act so that their
provisions can be compared and contrasted. However, given that
the appropriate limit and aggregation are not concepts which feature
in the EIR charging regime the case for joint guidance on this
subject is less compelling. Joint guidance would, however, be
likely to demonstrate that the EIR offers a less restrictive access
to information regime than the FOI Act.
Richard Thomas
February 2007
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