Appendix
DRAFT FREEDOM OF INFORMATION AND DATA PROTECTION
(APPROPRIATE LIMIT AND FEES) REGULATIONS 2007
LIST OF
QUESTIONS FOR
RESPONSE
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?
COMMENTS
The Act is not prescriptive enough to ensure
consistent calculations. We believe a "ready reckoner"
for how long a page should take to read is too prescriptive. However
given the broad terminology used in the Regulations there should
be a recommended template for assessing time estimates and recording
actual time spent on answering a request. Guidance will be needed
to help set the parameters to be used in the preparation of estimates.
For example although a minister may like to be involved does a
minister need to be involved?
QUESTION 2
Does the inclusion of thresholds in the regulations
provide sufficient flexibility,taking into account the differing
complexity of requests received?
COMMENTS
The ability to include the estimate of consultation
costs of between £100 and £400 (Central Government)
or £75 and £300 (other public authorities) should only
really be relevant during the consideration of the exemptions
under Part II of the FoIA. We believe further analysis should
be done to assess the relationship between cost and complexity.
There needs to be a greater understanding of the merits of more
complex cases. It is difficult to see how the threshold will be
flexible enough to deal with more complex cases. Further more
detailed analysis may illustrate that the type of cases that are
regarded as complex and that require consultation and extensive
reading time are those that should not be bound by any threshold.
The type of cases that have public interest considerations of
such importance that openness and not cost should be the priority.
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?
COMMENTS
Following on from our answer to Question 2,
we do not see any application for the additional costs threshold
or the additional cost ceiling. In striking the balance we believe
one of the key issues is whether consultation and reading are
necessary and if the answer is yes the number of stakeholders
that need to be involved. Cost savings could be achieved if the
consultation and reading time of senior people is the exception
rather than the rule.
QUESTION 4
Are the Regulations as drafted the best way of
extending the aggregation provision?
COMMENTS
We believe that sections 14 or 21 and regulation
5 of the 2004 Regulation provide adequate mechanisms to deal with
circumstances where aggregation might be necessary. Further guidance
may be provided to supplement current decisions of the Information
Commissioner on vexatious requests. We are concerned that the
aggregation provisions in the Regulations give public authorities
too much discretion in determining whether requests can be aggregated
without due consideration of the public interest. We believe the
Regulations would simply be used to encourage requestors to use
other mechanisms such as making personal requests to avoid the
Regulations.
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?
COMMENTS
Both. We believe that the Draft 2007 Regulations
should contain more detail on the factors to be considered. Greater
clarity would also provide greater transparency to the Public
and increase consistency of approach.
QUESTION 6
Are these the right factors?
COMMENTS
In short No—we believe that aggregating
requests from different persons will in practice prove challenging.
If the factors are to be retained, we suggest that as a minimum
a public interest test should determine whether the aggregation
is appropriate should replace the reasonableness test set out
at regulation 7(2)(b)(ii) of the Draft 2007 Regulations.
QUESTION 7
What guidance would best help public authorities
and the general public apply both the EIRs and the Act effectively
under the new proposals?
COMMENTS
Types of Guidance for Consideration:
— More detailed criteria for assessing
cost estimate—what are reasonable costs?
— Recommended methodology for preparing
cost estimate.
— Guidance of whether consultation
and reading by officials other than FoIA Officer are necessary
with emphasis on reading, consultation being the exception and
not the rule.
— If aggregation is to be implemented
what clearer criteria.
— Guidance on using S14 to weed out
vexatious requests.
— Guidance for the public that helps
develop more precise requests.
Stacie Timms
Programme Executive
February 2007
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