Appendix
COPY OF SUBMISSION MADE IN RESPONSE TO DCA
CONSULTATION
INTRODUCTION
Which? is the largest consumer organisation
in Europe with around 700,000 members. Entirety independent and
not-for-profit, we are funded through the sale of our Which? range
of consumer magazines and books. We exist to make individuals
as powerful as the organisations they come across in their daily
lives.
BACKGROUND
The Freedom of Information Act (FOIA) is a fundamental
indicator of how well a participatory democracy is functioning
in the UK and of how transparent the processes and machinations
of government are to its citizens.
Greater access to information which is generated
by public authorities on behalf of citizens, and paid for by ordinary
taxpayers, is essential for ensuring a highly informed electorate
who can meaningfully engage with Government agencies who have
a major impact on people's lives.
OUR VIEW
Which? is strongly opposed to the draft regulations.
We note that our view is shared by over 100 MPs from all parties
in the House of Commons who have supported EDW845 and that the
Constitutional Affairs Select Committee in its June 2006 report
"Freedom of Information: one year on" concluded
that the problems they identified with the FOIA would not "justify
a review of the fees regulations, but it would demonstrate a serious
shortcoming in some public authorities' records management systems".
Though we hope the regulations will never be
presented to Parliament, we also believe the regulations are so
contentious that if they are ever presented to Parliament they
should be subject to the positive resolution procedure.
We suggest that, rather than trying to save
about one third of the £36 million spent on FOIA—a
small sum when compared with overall Government spending—the
Government should actually be investing more resources in making
FOIA work as intended, including better funding for the Office
of the Information Commissioner.
We also believe that the FOIA has not been in
force tong enough for the proposed changes to be either justified
or necessary.
DETAILED COMMENTS
We welcomed the Government's decision to bring
into force the FOIA which provided a general right of access to
recorded information held by public authorities subject to conditions.
We have consistently used the FOIA strategically in a range of
areas including health, food, consumer market information and
personal finance matters both to ensure the integrity of the work
and research we conduct, and also to provide important information
and advice to consumers.
It is disappointing now to see that the DCA
seems to have taken a determined course toward retreating on the
commitment towards a more open and transparent Government. In
presenting the proposed draft regulations in this very advanced
form we believe the DCA has missed a fundamental step in the consultation
exercise, namely the preliminary question of whether it is necessary
and/or proportionate to individual and organisational requesters
to introduce these changes.
The consultation, such that it is, pre-supposes
that the draft regulations have a sound basis for change; we disagree
that they do. The proposal to aggregate claims is wrong in principle,
and whether intentional or otherwise, will have the effect of
reducing legitimate claims at a time when public authorities and
the general public are still coming to grips with the operation
of the Act. We believe the regulations are questionable and possibly
challengeable at law.
In particular our concerns centre around two
aspects of the proposals; the proposed new costs thresholds (DR6)
and aggregation of claims (DR7).
1. Draft Regulation 6 (DR6)
The proposals contemplate a de minimus level
below which costs associated with consultation and/or consideration
are not to be taken into account. These are set at £100 for
central government and £75 for wider public sector. The ceiling
costs are to be £400 for and £300 respectively.
These threshold and ceiling provisions would
apply separately to consultation and consideration activities
to ensure that a request cannot exceed the appropriate limit because
of the costs either of consideration or consultation activities
alone. This in turn it is suggested is insurance against requests
being rejected purely because they are "sensitive" or
"difficult".
DR6 also proposes to include new costs which
had not been previously included in the costs of compliance with
a request under the Act. The new costs proposed are for examining
the requested information, costs of consulting with other bodies
about the request, and the costs of determining whether an exemption
applies, including deciding on the public interest balance for
qualified exemptions.
The costs of consideration and consultation
time would be estimated at £25 per hour. Costs are to be
subject to a reasonableness test exercised by individual authorities
as to the estimated costs of each of these activities.
Our objections to these proposals are threefold.
Firstly, FOI should ideally be used as an avenue
of last resort for obtaining Government information. Public authorities
can significantly reduce costs by increasing the amounts of information
they proactively publish on websites, annual reports and other
public documents, so that the need to use the act is minimised.
We note that many local and other public authorities have increasingly
begun to do this. Which? has been greatly encouraged by the decision
many local authorities took to publish the hygiene scores of local
food outlets, largely as a result of a Which? led FOIA campaign
last year.
We are very concerned that these regulations
may well act as a disincentive to this positive development. In
particular, some sectoral regulators who have been very stow in
taking up the spirit of FOIA have more recently begun to engage
in dialogue as a result of FOIA requests for information about
their individual enforcement activities and initiatives.
Secondly, "any mechanism for disclosing
Government information must have regard to issues of access and
equity. Policies of charging for Government information run the
risk of `double taxation' if the information was created and collected
at taxpayer's expense".[31]
It would be hard for the Government to argue that such information
was not generated at the taxpayer's expense.
It is our view that, even with the assistance
of "guidance", Public Authorities will vary greatly
as to how they wilt apply an assessment of what are reasonable
costs which will broadly reflect current levels of inconsistency
of knowledge which we have found exist across the public sector
in applying the exemptions to the FOIA.
We found that when we sent requests for the
same information under both the FOIA and EIR to a large number
of local authorities concerning food hygiene inspections, the
responses ranged from definite refusals to supply of everything
including files. Sometimes these were from neighbouring authorities,
thus defying any rational explanation.
The wide margin of discretion afforded to public
authorities to deny access to requests on the basis of unreasonable
costs creates in our view an avenue which may easily be exploited
(or seen to be exploited), another layer of complication and a
barrier to access for the requester.
Which? suggests that, if these new costs are
to be included, then at least the upper limit of £600 and
£450 should be increased. We think that the thresholds should
be increased by £400 and £300 respectively so that the
new thresholds should be £1,000 and £750 respectively,
and be kept under regular review. In addition no request should
be refused on the grounds of costs alone.
2. Draft Regulation 7 (DR7)
The second issue of paramount concern to us
is the proposal to increase the scope for aggregation of claims.
The proposal in its current form will result
in a restriction on Which? of the information we seek under the
FOIA. We note that DR7 does provide that requests can only be
aggregated where it is "reasonable in all the circumstances"
to do so. One of the elements of what is reasonable, but which
will not be expressed in the regulations, is whether the "requester
is an individual who is not making the request in the course of
business or professions".
This would effectively tie up organisations
like Which? and other not for profit organisations who represent
public interests from obtaining information crucial to consumers
and the broader community. We would say that this is an example
of a criterion which could become by constant usage a blanket
exclusion on the basis of "reasonableness".
One example of how DR7 would impact adversely
on Which? and consequently on consumers is the recent dentistry
campaign conducted by our health team.
As you may be aware, Primary Care Trusts (PCT)
became responsible for commissioning dentistry services in their
local areas in April 2006. The requests are directed at what the
PCTs are doing to discharge that responsibility and their responses
are being linked up with our market research results for analysis
and publication in a forthcoming Which? Dentistry Policy Report.
The report will be distributed widely, including to Government
and the PCTs themselves to help them identify gaps in the provision
of this essential service. The PCTs responses form an important
part of a market research exercise investigating patient's experiences
of gaining access to dental services.
Format FOIA requests were sent out on 23 October
2006 to 152 PCTs across the country. Several responses were received
within the same month, a further 56 by the New Year, 18 more by
end of February 2007 and the balance are still outstanding. The
nature of the material sought is not contentious and therefore
all requests so far have been allowed.
The Which? team spent some time negotiating
the timeframe for the return of the requests with PCT officials
affording them extensions of time to consider and gather the information.
This courtesy reduced the time pressure on officials allowing
them some flexibility and relieving the administrative burden
on the authorities to deliver within the statutory time limits.
Significantly, the nature of these requests
had the support of the Chief Dentistry Officer Dr Barry Cockcroft
who observed that no other body is undertaking this important
work at this time.
FOIA is now key to Which?'s ability to carry
out rigorous analysis to ensure the integrity of its information.
Ultimately though, it is providing a vital function for communities
in helping secure greater accountability of public authorities
towards their constituents at a local level.
Significantly for Which?, DR7 would allow a
public authority when calculating the appropriate limits, to aggregate
the costs of requests for information received from the same person
or persons who "appear to be acting in concert or in pursuance
to a campaign". This section is aimed at campaigners with
no reference to those organisations and individuals who act in
the "public interest". Furthermore, it allows civil
servants to make subjective decisions about whether the previous
conduct of requesters has been "uncooperative" or "disruptive".
Our view is that this is a disproportionate
response to the issue of how to handle requests for "sensitive"
Government information which tests the boundaries of the new Act.
This should not result in a sanctioning of requesters, but rather
a rigorous evaluation of how best to promote the FOIA and bolster
public confidence in the openness of Government.
We believe that the answer therefore lies in
greater investment for FOIA/EIR individual staff and departments
in training and IT infrastructure to enable them to respond in
line with the current legislative regime, rather than seeking
to amend the FOIA through the draft regulations.
Mark McLaren
March 2007
31 Administrative Law, Third Edition 1999: Douglas
and Jones, Federation Press at p 81. Back
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