Evidence submitted by the BBC
In response to your call for evidence please
find attached the BBC's submission to this short inquiry.
This submission also constitutes our response
to the Department's Draft Freedom of Information and Data Protection
(Appropriate Limit and Fees) Regulations 2007.
In addition you requested examples of FOI releases
that might not happen under the new Government proposals. We believe
that many of the disclosures contained on the site below could
have been prevented by the new proposals.
http://news.bbc.co.uk/1/hi/in—depth/uk/2006/foi/default.stm
Andrew Scadding
Senior Adviser, Public Affairs, BBC
CONSULTATION ON THE DRAFT FREEDOM OF INFORMATION
AND DATA PROTECTION (APPROPRIATE LIMITS AND FEES) REGULATIONS
2007
COMMENTS BY THE BBC
1. INTRODUCTION
1.1 The BBC is in a virtually unique position
under the Freedom of Information Act, as a media organisation
whose journalists make large numbers of FOI requests and as a
public authority which receives many FOI requests. We are therefore
aware of both perspectives on these issues.
1.2 We seek to adopt policies of openness
and transparency. We welcome FOI as a tool which facilitates our
relationship of openness with the public. We also welcome the
fact that it helps our programme-makers to put material into the
public domain where this is in the public interest.
1.3 We therefore do not wish to see changes
to the FOI system which run counter to its spirit and would undermine
its achievements and effectiveness. We believe that the government's
current proposals would do this and are strongly opposed to them.
1.4 We welcome the fact that the DCA has
initiated a formal consultation exercise. However we are disappointed
with its narrow focus. We believe that the DCA should also be
seeking views on the principle of what it is being proposed, not
merely on the details of how to implement it.
1.5 We make some comments on the detailed
questions asked. However, this is in the context of our fundamental
opposition to the implementation of anything along the lines of
the proposed new regulations.
1.6 We do not accept the costings analysis
provided by Frontier Economics, which has numerous flaws. However,
in this submission we concentrate on the merits and demerits of
how the government is now proposing to administrate FOI.
2. EXAMINATION,
CONSULTATION AND
CONSIDERATION TIME
2.1 We are opposed to the proposal to allow
examination, consideration and consultation time to count towards
the cost limit. If implemented this proposal would curtail those
FOI requests which are most important and of widest public interest.
This is because it is generally these requests which are subject
to the greatest amount of consideration and consultation. The
proposed change is unlikely to affect the mundane, easily answered,
routine requests. But requests on topics of significant and extensive
public interest tend to be considered at length by numerous officials
and ministers, and could easily exceed the proposed cost limit
if time spent on deliberation could also be taken into account.
2.2 The proposal would also give public
authorities a perverse incentive to employ particularly lengthy
consideration and consultation processes for sensitive requests,
so as to maximise the chance of refusing them by exceeding the
cost limit. In the case of some public authorities this could
become a crucial loophole. Inefficient authorities with wasteful
processes will be better able to avoid difficult disclosures than
decisive and efficient ones. So the proposal would mean that the
government could perversely reward inefficiency in public authorities.
2.3 Futhermore the proposal, if implemented,
is bound to provoke more time-consuming and expensive internal
reviews and complaints to the Information Commissioner. This will
reduce any cost savings that are hoped for.
Question 1. Are the Regulations prescriptive
enough to ensure consistent calculation of the appropriate limit
across public authorities or should they contain more detail?
For example, taking into account the differing formats and quantity
of information requested, should a standard reference (ie a "ready
reckoner") for how long a page should take to read be included
in the Regulations or guidance?
2.4 While we are opposed to the inclusion
of examination time in the cost limit calculation, we believe
that if this is to happen then there should indeed be a standard
speed stipulated for reading times. This is necessary to curtail
inconsistency and the creation of additional loopholes.
Question 2. Does the inclusion of thresholds
in the regulations provide sufficient flexibility, taking into
account the differing complexity of requests received?
Question 3. Are the thresholds the right ones
to make sure the balance is struck between allowing public authorities
to count these activities but not refuse requests on one of these
grounds alone?
2.5 We would prefer the regulations to include
thresholds and ceilings rather than not do so.
2.6 This is because if the proposals do
go ahead we would wish to see their damaging effects mitigated,
and thresholds and ceilings would go a small way in this direction.
2.7 For the same reason of mitigating the
resulting harm, we would prefer to see the thresholds higher and
the ceilings lower.
2.8 However the damage reduction would only
be small. In practice, although this is certainly preferable to
not doing so, little will be achieved by stipulating separate
cost ceilings for consideration and consultation. Sensitive and
difficult requests are likely to involve considerable amounts
of both consideration and consultation, and, therefore, still
exceed the cost limit.
2.9 It is also important to note that while
it is better to have thresholds and ceilings than not do so, the
increasing complexity of the cost calculations will surely lead
to additional internal reviews and appeals to the Information
Commissioner. In other words, as the government seeks to ameliorate
the damaging impact of the proposals on openness by increasing
their complexity, it is reducing the potential cost savings. In
our view this is further evidence that the entire approach is
wrong-headed and should be abandoned.
3. AGGREGATION
Question 4. Are the regulations as drafted
the best way of extending the aggregation provision?
3.1 The aggregation proposal—to allow
the aggregation of all requests made by any legal person to one
public authority within 60 working days—would have bizarre
and unacceptable consequences.
3.2 As the proposal stands, It would mean
that if one BBC journalist puts one or more requests to a public
authority which come close to the cost limit (and implementation
of the first proposal increases the chance that just one request
would do so), then quite possibly no other BBC journalist would
be able to put an FOI request to that authority about anything
at all for the next three months. Other major media organisations
would be affected in a similar way.
3.3 Paragraph 29 of the Regulatory Impact
Assessment notes that the proposal risks having "the effect
of imposing rigid quotas" on frequent requesters, "particularly
organisations". This is indeed what would happen. Despite
the impression given in the RIA, the proposed criteria for determining
reasonableness do not mention the need to avoid imposing rigid
quotas on organisations (such as major media corporations) that
make frequent requests. These criteria will thus do little to
prevent this risk materialising.
3.4 It is certainly better to state the
aggregation must be "reasonable" than not to impose
this condition, but this is only a very minor step towards mitigating
the damaging effects of this proposal. It will still leave public
authorities enormous scope to aggregate and thus reject FOI requests
which they don't like, while not bothering to aggregate the ones
they have no difficulty with Our experience suggests that it is
likely to be those requests regarded as sensitive and difficult
that will suffer.
3.5 Our answer to question 4 is therefore
"No".
Question 5. Do the factors that need to be
taken into account when assessing if it is reasonable need to
be explicitly stated in the regulations or can this be dealt with
in the guidance?
Question 6. Are these the right factors?
3.6 If this deeply damaging proposal to
allow aggregation does go ahead, and guidance is issued on when
it is "reasonable" to aggregate non-related requests,
we do not accept the right factors are listed and instead believe
the following point is crucial.
3.7 The criteria for "reasonable"
aggregation should take into account how widely the disclosed
information may be distributed by the requester and thus the level
of public benefit that follows from the disclosure. If the point
of FOI is to promote access to information which should be available
to the public, then its public benefits are greatest when that
information is distributed most widely. It is therefore less reasonable
to aggregate and reject requests from requesters who are likely
to make the disclosed information widely and easily available
to the general public (and thus maximise the public interest benefit
from disclosure) than to aggregate requests from requesters who
may keep the disclosed information to themselves or seek to sell
it to others at a substantial price.
3.8 We again make the point that any cost
savings would be reduced by an increase in internal reviews and
appeals to the Commissioner.
CONCLUSION
4.1 The Regulatory Impact Assessment implies
that those who would mainly suffer from the proposals are frequent
FOI requesters. However in the case of the BBC we believe this
is a fundamental misunderstanding. The people who would suffer
are in fact our audiences who would be deprived of valuable information
that we could no longer provide to them—information which
would help hold public authorities to account and which would
help facilitate public discussion of and informed participation
in decision-making.
4.2 These proposals would dramatically curtail
the ability of BBC journalists and others to put into the public
domain material which merits disclosure in the public interest.
In this way 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.
4.3 We believe that FOI has strengthened
the BBC's ability to achieve the objective of delivering greater
accountability and transparency to licence fee payers. While our
experience of handling requests has been challenging it has also
been rewarding. From our perspective as an authority receiving
requests we see absolutely no need for the measures that are being
proposed.
4.4 We therefore hope the government will
think again and withdraw these proposals.
4.5 We intend to make this response public.
February 2007
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