Evidence submitted by Intellect UK
1. INTRODUCTION
Intellect is the UK trade association for the
IT, telecoms and electronics industries. Its members account for
over 80% of these markets and include blue-chip multinationals
as well as early stage technology companies. These industries
together generate around 10% of UK GDP and 15% of UK trade.
Intellect welcomes this opportunity to respond
to the Department for Constitutional Affairs' ("DCA")
consultation on the draft Freedom of Information and Data Protection
(Appropriate Limit and Fees) Regulations 2007 (the "Draft
2007 Regulations").
We understand that the purpose of the Regulations
is to "ensure that in meeting their obligations under
the Freedom of Information Act public authorities are able to
better calculate the actual costs that would be incurred in complying
with requests for information, to provide the right balance between
access to information for all and the delivery of other public
services".
Those Industry representatives who have been
involved in our own internal discussion this consultation felt
that the consultation and the Frontier Economics "Independent
Review of the impact of the Freedom of Information Act" had
not made a clear case that reform of the 2004 Regulations is required.
Whilst Intellect understands the need to control the cost and
impact of Freedom of Information, we are concerned, for the reasons
set out below, that the Regulations as drafted are not the best
way to achieve the objective of reducing cost. We have therefore
suggested alternative proposals later in the paper.
We have also set out in Appendix 1 answers to
the questions set out in the Consultation document.
2. ISSUES
— The Regulations are based on the
"estimate" of cost and not actual cost. We would like
to understand what evidence will be provided to demonstrate how
costs have been estimated?
— We believe clear guidance will be
required to ensure that estimates are calculated in a clear and
consistent manner. The Act is not prescriptive enough to ensure
consistent calculations. There should be a template for assessing
time.
— There is no apparent requirement
to provide transparency around how the estimate is prepared. Time
recording is not mandatory.
— There is a question of what evidence
will be provided to the Information Commissioner if there is an
appeal which is seeking to challenge a refusal to provide information
on cost grounds. The Information Commissioner may well issue a
decision that requires public bodies to produce accurate cost
estimates and provide supporting evidence. The necessary changes
to process and training required to implement the. new fee arrangements
could significantly add to the cost of implementing the Regulations.
— The Independent Review carried out
by Frontier Economics would appear not to have had regard to the
merits of individual cases. There is a serious risk that requests
(albeit costly) of significant public interest and importance
will be excluded. There is no mechanism to link the cost with
the merits of the request for information.
— There will be divergent opinions
and interpretations about what is and what is not regarded as
being reasonable. 6(4)(b) is potentially very broad—"any
other costs which is reasonably expects to incur for these purposes".
— The potential for the subjective
application of these Regulations and interpretation of "estimate
reasonably" and "same or similar" may increase
the number of internal reviews and appeals to the Information
Commissioner. The consultation document acknowledges that internal
reviews and appeals to the Information Commissioner are costly.
An increased level of appeals to the Information Commissioner
would also detract from the consideration of more important substantive
issues such as the application of the exemptions and what is now
a good pipeline of cases providing useful and important clarity
on key issues.
— The supplier community and members
of the public have provided information to public bodies in good
faith and on the assumption that information will be protected
by appropriate application of the exemptions (for example S41
and S43). The approach often taken by many public bodies in their
application of the Freedom of Information (FoI) Act has eroded
confidence in the protection afforded by the exemptions. The Fee
Regulations increase the probability that information will be
disclosed without appropriate consideration of the exemptions.
Public bodies who wish to comply with the overriding Objective
of releasing information may release information without consultation
or consideration because they fear proper consideration would
push the request beyond the relevant threshold. The increased
risk that information will be disclosed without appropriate consideration
of the exemptions could further erode the Industn/s confidence
with the result that some suppliers may choose not to work in
the public sector with the corresponding impact on competition,
innovation and value for money.
3. PROPOSALS
Rather than formally introduce these Regulations
now, we suggest a pilot of the principles contemplated in the
Regulations in a Central Government Department for 6-12 months.
Such a controlled pilot would illustrate what cost savings can
actually be delivered, how many appeals are generated which in
turn provides time for the Information Commissioner's office to
prepare for the introduction of the Fee Regulations if they are
to become law.
The pilot would also provide time to carry out
a more detailed review into the merits of those cases that are
said to drive disproportionate cost. It may be that the merits
and public interest benefits of long and detailed consultation
are so important to be worth the additional time and cost. Lessons
learnt during pilot phase could be used to improve guidance to
both public bodies and those requesting information, for example
(1) more rigorous push-back where request is too vague/broad (2)
encouraging rigorous application of S14 of the FoI Act in relationship
requests from vexatious requester. We have included additional
suggestions in answer to Question 7 of Appendix 1.
4. CONCLUSION
Whilst we understand the purpose behind the
proposed Regulations, we believe it is premature to introduce
the Regulations in this form and at this time, and would request
that consideration is given to our proposals above.
Intellect will be happy to discuss these issues
in greater depth with DCA.
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