Select Committee on Constitutional Affairs Written Evidence


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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