Evidence submitted by Clifford Chance
This submission is made on behalf of Clifford
Chance LLP, in response to the invitation by the Constitutional
Affairs Committee to submit evidence on the proposals published
by the Department for Constitutional Affairs to amend the fees
regulations for freedom of information.
1. We very much welcome the Committee's
decision to examine these proposals and welcome the opportunity
to submit our views. We trust that the Committee will find our
comments helpful and constructive.
2. Clifford Chance is the largest law firm
in the world with 29[1]
offices in 20 countries throughout Europe, the Americas and Asia.
We are regulated in this country by the Law Society of England
and Wales.
3. We have advised a considerable number
of companies and public sector bodies on making FOI applications
and on the implications of the legislation for their activities.
We have also made a number of FOI applications on behalf of clients
to public sector bodies.
4. We agree generally with the Committee's
views, expressed in its report of June 2006, "Freedom of
Information: one year on", that the existing fees regime
is working well and that changes are not necessary.
5. We query the scope of the review that
was carried out by Frontier Economics ("the review").
The terms of reference ("the cost of delivering FOI across
central government and the wider public sector, alongside an assessment
of the key cost drivers of FOI; and an examination of options
for change to the current fee regime for FOI") were narrowly
focused on the costs of delivering FOI, when they could, and arguably
should, have been more broadly drawn so as to look at how the
fees regime was working more generally, and at whether it was
possible to identify the concomitant benefits arising from FOI
delivery. It might then have been able to consider, for example,
whether those requests which it identified as giving rise to most
costs, also delivered most public benefit. We are concerned that
the review was asked to focus on the economic cost of the regime,
and was not able to look at the wider context in which FOI operated
and the public benefits which have accrued as a result.
6. We were also concerned that, within those
terms of reference, the review was further slanted by being asked
to consider the impact of four options. One important point which
was not given sufficient weight in the review was the number of
FOI requests which, before the passing of the Act, would have
been made to government in any case and would simply have been
responded to as a matter of course. The Act has made some progress
towards changing the culture of public authorities to one of disclosing
rather than concealing information, but it should not be forgotten
that even without the Act the government, and other public authorities,
are under a duty to communicate with the electorate and that,
in many circumstances, it is in their interests to do so.
7. The review found that a flat rate fee
was likely to have "the most substantial impact on reducing
the volume of requests". It found however a flat rate fee
would be highly unlikely to deter the most expensive cases. Although
the review did not say so, it would seem likely that the types
of requests identified by the consultancy as not being "in
the spirit of the Act" would be discouraged by the introduction
of flat fees. (Nor did the review mention that there are existing
mechanisms within the Act designed to ensure that public authorities
do not have to answer such requests.) No suggestion was made that
the most expensive requests were not within the spirit of the
Act. Indeed, these requests, which one would assume would include,
for example, the request for the Attorney General's legal opinion
on the legality of the war with Iraq, or the request for MPs'
detailed expenses, would seem to fall very much within the spirit
of the Act. From a policy point of view it would therefore seem
wrong in principle to choose an option which would have the effect
of blocking requests of enormous public interest and within the
spirit of the Act, in preference to an option which would block
requests identified as not being in the spirit of the Act.
8. For these reasons we believe that the
government's review has not adequately scoped the issues, and
does not form a sufficient basis for the government's proposals
to amend the current legislation on fees, as set out in the Draft
Freedom of Information and Data Protection (Appropriate Limit
and Fees) Regulations 2007 ("the draft Regulations").
9. We believe that the inclusion of examination
and consideration time in estimating the cost of responding to
a request could have the effect of excluding politically sensitive
requests. We would therefore oppose this. However, if the government
were to proceed with this amendment, we consider it would be advisable
to include a "public interest override", so that a request
could not be refused on grounds of cost where the public interest
in disclosing the information was greater than the public interest
in not disclosing, taking into consideration the cost implications.
This would go some way in ensuring that requests for eg the Attorney
General's opinion on the legality of the war in Iraq and the request
for disclosure of MPs' expenses, could not be rejected without
at least a possibility of appeal to the Information Commissioner
on grounds other than cost.
10. Although the driver behind the draft
Regulations appears to be to reduce cost, a number of the administrative
provisions being introduced will, we believe, increase cost, and
the administrative burden for public authorities. For example,
in order to implement draft Regulation 7, public authorities will
need to introduce a system for aggregating requests from the same
entity or another entity acting in concert, which will entail
logging, dating and cross-referencing requests. The calculation
public authorities must do in order to work out whether the request
will be exempt because of cost will also be much more complex.
11. We are not entirely clear what purpose
will be served by the proposal to aggregate unrelated requests
from the same entity, and to allow public authorities to refuse
if they are from the same organisation. This provision is likely
to disproportionately penalise journalists and pressure groups
using FOI as a tool, as well as specialist FOI agencies and law
firms making requests on behalf of multiple clients. Guidance
on the Act makes it clear that the legislation is intended to
be "motive-blind", ie that the identity of the requester
is not relevant to whether the information will be disclosed or
not. To take advantage of this, a number of companies and other
entities ask a third party to make the request on their behalf.
Law firms are also asked to make such requests because of the
legal and technical nature of the replies received from public
authorities which may entail, for example, detailed expositions
of the law of confidentiality where section 41 is invoked. Public
authorities are advised to seek legal advice when the section
41 exemption may be applicable.
12. The proposal to allow aggregation is
also unnecessary. Provision already exists in the legislation
to refuse to respond to vexatious requests and this has been translated
by the Information Commissioner to include vexatious requesters.
Therefore, the ability to refuse multiple requests from one source
already exists. The proposal in the draft Regulations will simply
put a new onus on public authorities to monitor and record requests
and will penalise requesters, many of whom may wish to remain
anonymous, simply for exercising their rights under the Act as
well as those who act on behalf of requesters.
13. Shortly before the Act came into force,
the Lord Chancellor, Lord Falconer, spoke[2]
of the importance of the Act as a means of securing better government
through transparency, accountability and honesty, as well as a
means of achieving greater democratic involvement and greater
confidence in government. We believe that these valuable public
interest benefits would be considerably undermined were the Regulations
to be implemented as drafted. If implemented, they would restrict
the effective operation of the Act in areas in which it has been
most significant and most effective.
Patricia Barratt
February 2007
1 Includes associate office in Bucharest. Clifford
Chance LLP is a limited liability partnership registered in England
and Wales under number OC323571. Registered office: 10 Upper Bank
Street, London E14 5JJ. We use the word "partner" to
refer to a member of Clifford Chance LLP, or an employee or consultant
with equivalent standing and qualifications. Back
2
See for example his speech at the Law for Journalists Conference,
26 November 2004 at http://www.dca.gov.uk/speeches/2004/lc261104.htm Back
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