Evidence submitted by The Odysseus Trust
1. The Odysseus Trust[3]
is a non-profit company limited by guarantee which seeks to promote
good governance and the effective protection of human rights.
The Trust is directed by Lord Lester of Herne Hill QC, together
with his Parliamentary Legal Officers, Kate Beattie and Bonita
Meyersfeld.
2. This document responds to the call by
the Constitutional Affairs Committee for evidence regarding the
Draft Freedom of Information and Data Protection (Appropriate
Limit and Fees) Regulations 2007 ("the proposed regulations").
A. EXECUTIVE
SUMMARY
3. Public access to government and other
official information is a civil right. The right of public access
must not be restricted arbitrarily or unnecessarily. Because individuals
in a democracy have a right to transparent, open and good government,
the enjoyment of the right of public access should not be conditional
upon the ability to pay a fee, and any charges must be reasonable
and objectively justifiable.
4. There are serious deficiencies with both
the current regulations and the proposed regulations. The deficiencies
relate to the way in which fees are calculated, aggregated and
charged, and the absence of effective safeguards against abuse.
5. The proposed regulations go far beyond
remedying the concerns raised by the Department of Constitutional
Affairs ("DCA") and create fundamental problems. Public
officials would be endowed with excessively wide powers to reject
applications for access to information, about the workings of
government and other public bodies irrespective of the substance
of the applications and the public interest to which they may
relate. This would frustrate the object and purpose of the Freedom
of Information Act 2000 ("the Act").
B. BACKGROUND
6. In January 2005 the Freedom of Information
and Data Protection (Appropriate Limit and Fees) Regulations 2004
came into force. These contained the following key provisions:
(a) Public authorities may refuse to comply
with a request for information if the request would exceed "the
appropriate limit" which, in the case of central Government
and Parliament is £600 and £450 for the wider public
sector.
(b) In determining the appropriate limit,
public authorities may include the costs of (i) determining whether
the authority holds the information, (ii) locating the information,
(iii) retrieving the information and (iv) extracting it.
(c) The standard rate for a public official's
time is £25 per hour.
(d) When estimating whether a request will
exceed the cost threshold, public authorities may aggregate the
costs of two or more requests received from the same person or
from persons who appear to be acting in concert or in pursuance
of a campaign, provided the requests relate to the same or similar
information and are received within a period of 60 working days.
7. The DCA commissioned an independent economic
review of the 2004 regulations, which was published in October
2006. The review concluded that:
(a) a small percentage of requests place
a disproportionate burden on the resources of public authorities,
particularly in respect of officials' time; and
(b) a small number of regular users of the
Act account for a substantial proportion of the overall costs
of delivering freedom of information.[4]
The DCA, however, does not specify the nature of the burdensome
requests. It could well be that the information that the DCA finds
is costly to review and disclose is in fact information of public
interest.
8. In response to the review, the DCA drafted
new regulations, incorporating the review's recommendations. The
DCA has requested comments concerning these regulations.
C. PROBLEMS
9. We have four main objections to the proposed
regulations:
(a) They would preserve the public authority's
discretion to refuse information requests outright solely on the
ground of burdensomeness.
(b) Fees would be imposed irrespective of
the public interest in the information.
(c) Broad discretionary powers would be delegated
with wide scope for abuse and inadequate safeguards.
(d) By imposing hefty fees, legitimate as
well as vexatious claims would be affected. Requesters making
genuine claims might not be able to meet the costs and, therefore,
might well be deterred from pursuing them.
Problem One: The new regulations do not address
a fundamental flaw in the current scheme that allows public bodies
to refuse any information request if responding to the request
would take too much time.
10. Currently, if a request exceeds the
cost limit, the authority may:
(a) Refuse to supply the information altogether;
or
(b) Supply the information provided the requestor
agrees to pay the full cost ie £600/£450 plus the surplus.
11. It frustrates the object and purpose
of the Act to grant public authorities the discretion not to consider
a claim at all if it exceeds the cost level. The cost involved
in obtaining information should not bar the claim in and of itself.
If a claim is expensive, at the most the requestor should have
to make a reasonable contribution towards the costs, certainly
where commercial interests are involved.
12. Furthermore, the refusal to consider
requests on the grounds of cost is bound to result in an increase
of appeals to the Information Tribunal in terms of Part V of the
Act. Such challenges would place significant burdens on the Information
Commissioner's Office and the Information Tribunal. In this regard,
rather than saving time and money, the proposed regulations have
the potential to drain further public resources.
Problem Two: The proposed regulations would
worsen the current scheme by allowing information requests to
be aggregated.
13. The proposed regulation would allow
non-similar requests to be aggregated if doing so would be "reasonable
in all the circumstances."
14. According to the DCA, reasonableness
would be assessed on a case by case basis, taking into account
factors such as the disruption to the work of the public authority
and if the request is made by a person who, in the past, has made
many requests or has been "uncooperative or disruptive".
15. A denial based on "reasonableness"
is discretionary, and one that creates a risk of abuse of discretion.
This is especially so in light of the subjective nature of the
factors that an authority may consider, namely conduct which "has
been uncooperative or disruptive."[5]
Claims for information should not be rejected either because they
are costly or because the claimant makes frequent requests for
information.
Problem Three: The proposed regulations would
weaken the current scheme by allowing public authorities to include
in their cost calculation the time taken to decide whether or
not to release the information.
16. Under the current regulations, an authority
may include in its charges the time it will take to check whether
it holds the information, find the information, extract it, edit
if necessary and submit it. It may not include the time spent
in deciding whether the information has to be disclosed under
the Act. Often this is the most time-consuming part of handling
the request.
17. The proposed regulations would allow
authorities to include in their calculation of costs the time
for consideration and consultation (in addition to the current
cost factors described above).
Problem Four: The proposed regulations would
chill the use of the Act. People who make frequent requests and
requests which are politically sensitive will be most seriously
affected.
18. Politically sensitive requests involve
substantial consideration and consultation.[6]
Under the proposed regulations, a request made for a plainly legitimate
purpose might be rejected on the basis that it would be too burdensome
for the relevant minister or public official to consider. Almost
any politically sensitive request could be refused, thereby distancing
ministers, civil servants and Parliament from the reach of the
Act.
19. As the eyes and ears of the public,
news and media bodies are responsible for the transmission of
a variety of information. The Act is integral to the service such
bodies provide. As the Fleet Street Lawyers' Society has indicated,
the aggregation of requests would block a substantial proportion
of all media requests.[7]
For example, a newspaper would be limited in the number of requests
its individual reporters could make, with the result that once
a request has been made, no further requests to that authority
on any subject could be made during a three month period by any
other journalist from the same organisation. That is a severe
and unnecessary restriction upon freedom of information and expression.
D. RECOMMENDATIONS
20. The only reasons why a request should
not be considered are if the request is vexatious or it falls
within one of the exemption categories. Section 14 of the Act
allows a public authority to refuse to comply with a request for
information if the request is vexatious. In addition, the Information
Commissioner has provided guidance on how its office deals with
vexatious applications.[8]
21. The problems raised by the Government
do not need to be tackled by the crude mechanism of imposing increased
fees that inevitably will deter and inhibit the exercise of the
public right of access to information and of freedom of expression.
For this and the reasons stated above, we submit that the proposed
regulations should be revised.
22. The DCA should draft new regulations
to address the problems it identified as well as the problems
noted above. In developing appropriate solutions we recommend
that the DCA should have regard to good law and practice in other
countries committed to open government and freedom of information.
23. We draw particular attention to the
law and practice in the United States, where news media, educational
requesters and public interest organisations are treated more
liberally than other requesters because of the importance of freedom
of information and expression. Such requesters are assumed to
seek information of public interest and therefore they are charged
only for duplication, and may not be charged at all for search
and review costs. Commercial requesters, in contrast, may be charged
fees for copying, searching for and reviewing documents (at an
hourly rate, based on the level of the government official who
does the searching and/or reviewing of the documents for release,
as expressed in each public authority's published fee schedule).[9]
All other requesters are charged search fees and duplication only,
and they generally receive the first two hours of search time
for free, with the result that there is no charge for most simple
requests. A requestor would not have to identify itself but if
it does it will qualify for the reduced fees. We commend such
a system.
24. Review costs should include only the
direct costs incurred during the initial examination of a request
for the purposes of determining whether the documents are in the
possession of the public authority and whether the information
must be disclosed.
25. In addition, public authorities ordinarily
should charge search fees only to the first requester who seeks
particular materials; these fees should be waived for any subsequent
requesters, because the search has already been conducted. To
the extent possible, information of public interest released to
one requester should be posted on the public authority's website.
This would reduce demands from different users for similar information.
26. In Ireland, the Freedom of Information
Act 1997 originally did not include a fee for filing requests.
When the Act was amended in 2003, a charge of €15 per application
was added, except for requests for access to personal information.
The Information Commissioner's study on the impact of the 2003
changes shows that the introduction of up-front application fees
led to a significant drop in applications.[10]
Charges may also be levied for "search and retrieval"
and copying. Charges may not be imposed for reviewing the
requested records to determine whether they might be exempt. The
search and retrieval charge is currently set at €20.95. No
charge may be levied for search and retrieval of records containing
personal information unless the request relates to "a significant
number of records".[11]
27. The Irish record illustrates the danger
of imposing fees for filing requests. However, while we do not
suggest filing fees in the UK, a flat filing fee of €15,
coupled with a maximum search and retrieval fee of €20.95
is clearly far less onerous than the current and proposed scheme
in the UK.
28. Ideally, there should be no fee for
an application for information. Rather fees should be charged
only for the "provision" of information.
29. The Freedom of Information Acts of Ireland,
New Zealand, Trinidad and Tobago and Australia all require public
authorities to assist the applicant prior to refusing a request
on the ground of its unreasonableness.[12]
The Australian Act specifies a number of conditions which must
be met, including written notice and identification of an officer
of the public authority or member of staff with whom the requester
may consult in order to remove this ground for refusal. Moreover,
there is a specific provision that refusal on the ground of unreasonableness
is directly appealable.
30. The relevant provisions of the United
States Freedom of Information Act read as follows:
"Section 552. Public information; agency
rules, opinions, orders, records, and proceedings
(4)(A)(i) In order to carry out the provisions
of this section, each agency shall promulgate regulations, pursuant
to notice and receipt of public comment, specifying the schedule
of fees applicable to the processing of requests under this section
and establishing procedures and guidelines for determining when
such fees should be waived or reduced ...
(ii) Such agency regulations shall provide
that—
(I) fees shall be limited to reasonable standard
charges for document search, duplication, and review, when records
are requested for commercial use;
(II) fees shall be limited to reasonable standard
charges for document duplication when records are not sought for
commercial use and the request is made by an educational or noncommercial
scientific institution, whose purpose is scholarly or scientific
research; or a representative of the news media; and
(III) for any request not described in (I) or
(II), fees shall be limited to reasonable standard charges for
document search and duplication.
(iii) Documents shall be furnished without
any charge or at a charge reduced below the fees established under
clause (ii) if disclosure of the information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester.
(iv) Fee schedules shall provide for the
recovery of only the direct costs of search, duplication, or review.
Review costs shall include only the direct costs incurred during
the initial examination of a document for the purposes of determining
whether the documents must be disclosed under this section and
for the purposes of withholding any portions exempt from disclosure
under this section. Review costs may not include any costs incurred
in resolving issues of law or policy that may be raised in the
course of processing a request under this section. No fee may
be charged by any agency under this section—
(I) if the costs of routine collection and processing
of the fee are likely to equal or exceed the amount of the fee;
or
(II) for any request described in clause (ii)
(II) or (III) of this subparagraph for the first two hours of
search time or for the first one hundred pages of duplication.
(v) No agency may require advance payment
of any fee unless the requester has previously failed to pay fees
in a timely fashion, or the agency has determined that the fee
will exceed $250 ..."
E. CONCLUSION
31. For the above reasons, we submit that
the draft regulations proposed by the DCA should be reconsidered
and new regulations should be developed that protect the right
of the public to access information.
Bonita Meyersfeld
February 2007
3 For more information about the work of the Trust,
please visit www.odysseustrust.org. Back
4
Department of Constitutional Affairs, Draft Freedom of Information
and Data Protection (Appropriate Limit and Fees) Regulations 2007
Consultation Paper, paragraph 3, page 3. Back
5
Draft Freedom of Information and Data Protection (Appropriate
Limit and Fees) Regulations 2007 Consultation Paper 28/06, 14/12/2006,
page 14. Back
6
See the Campaign for Freedom of Information letter to Baroness
Ashton of Upholland, 24 November 2006. Back
7
See Fleet Street Lawyers' Society letter to Baroness Ashton of
Upholland, 13 December 2006. Back
8
"The Commissioner's general approach will be sympathetic
towards authorities where a request, which may be the latest in
a series of requests, would impose a significant burden and: clearly
does not have any serious purpose or value; is designed to cause
disruption or annoyance; has the effect of harassing the public
authority; or can otherwise by fairly characterised as obsessive
or manifestly unreasonable." Information Commissioner, Freedom
of Information Act Awareness Guidance No 22, Vexatious and Repeated
Requests. Back
9
For an example of the fee schedule and guidelines for a federal
agency, see the State Department web site at http://foia.state.gov/fees.asp. Back
10
Information Commissioner's Report,
http://www.oic.gov.ie/en/Publications/SpecialReports/InvestigationsCompliance/File,571,en.pdf.
This report also contains a useful comparative table of charges
across a range of English-speaking jurisdictions. Back
11
Information supplied by Professor Maeve McDonagh, Law Faculty,
University College Cork. Back
12
"A head shall not refuse ... to grant a request under section
7 [for unreasonableness] unless he or she has assisted, or offered
to assist, the requester concerned in an endeavor so to amend
the request that it no longer falls within that paragraph."
Freedom of Information Act 1997, as amended 2003, sec. 10(2),
Ireland; Official Information Act 1982, sec. 18, New Zealand;
Freedom of Information Act 1999, sec. 21(1), Trinidad and Tobago;
Freedom of Information Act 1982, sec. 24, Australia. Back
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