Select Committee on Constitutional Affairs Written Evidence


Evidence submitted by The Advisory Group on Campaigning and the Voluntary Sector: Working party on Freedom of Information

  These written submissions to the Constitutional Affairs Committee on Freedom of Information come from a working party set up by the recently formed Advisory Group on Campaigning and the Voluntary Sector. The working party has been set up to consider the issues relating to freedom of information as part of the wider remit of the group to review laws and regulations that govern campaigning by charities and voluntary organisations.

  The advisory group is chaired by Helena Kennedy QC. Its membership consists of Amnesty International; Association of Charitable Foundations; Bates, Wells & Braithwaite Solicitors; Bindmans Solicitors; Doughty Street Chambers; NCVO; Justice; Liberty; Oxfam; People and Planet; Richard Fries (ex chief Charity Commissioner); RNID; RSPCA; and the Sheila McKechnie Foundation. The working party is led by Lawrence Simanowitz, a partner at Bates, Wells & Braithwaite.

  These submissions focus on the draft Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2007 (the Regulations) and the DCA's consultation paper on these Regulations that the working party responded to in March 2007. In addition, we have suggested some alternative measures to the government's proposed fees system in the Regulations which will protect the rights of persons to make legitimate freedom of information requests when it is in the public interest to do so.

  The working party voiced concern in its response to the DCA's consultation paper on the limited scope of the DCA's consultation paper. If the revised Regulations are brought into effect, we understand that the cost saving will be relatively low—in the region of £10 million (based on figures in the regulatory impact assessment). Yet they could have a significantly chilling effect on transparency of government. Our view is that a broader consultation should be undertaken before implementing the Regulations.

  The working party was particularly concerned about two main aspects of the proposed Regulations:

1.  DRAFT REGULATION 6

  This regulation proposes to include, in calculating the costs of complying with a request under the Act, new costs which previously had not been included. These are, the costs of examining the requested information, and the costs of determining whether an exemption applies including costs of consulting other bodies and deciding on the public interest balance for qualified exemptions.

Comments

  1.1  It is noted that there is a de minimis level below which the costs associated with the consultation and/or consideration would not be taken into account (of £100 for central government and £75 for the wider public sector) and there is also a maximum threshold for these additional costs which could be included amounting to £400 for central government and parliament, and £300 for the rest of the public sector. Whilst these financial limits are appreciated they will do little to temper the potentially adverse consequences of the financial limits.

  1.2  Whilst government costs incurred on these activities is estimated at £25 per hour, the consultation paper raised a concern with the difficulty in determining how long it should take to read a page and the working party agrees that this is of concern.

  1.3  Of greater concern to the working party is that the addition of these elements makes it even more likely that FoI requests will be refused on the basis that the public authority's costs involved in responding to the request will be over the limit of £600/£450. The introduction of these new thresholds will serve to reduce the number legitimate freedom of information requests, many of which are made, in the wider public interest.

Alternative options for the government to save costs

  1.4  If the intention of Draft Regulation 6 is to save costs, there are several alternative steps which the government could take which might achieve lower costs for FOI requests without further restricting legitimate freedom of information requests:

    —  One might be to take stronger steps to seek payment of the costs incurred in meeting a request, particularly for those requests which cost more than £1,000 and amount to more than 45% of the total cost of all requests.

    —  Another measure would be to take away the discretion of the public authority and to automatically allow the person making the request to choose, if they wish, to pay the full cost of the government in dealing with the request, where that cost is above the relevant thresholds. This would mean that the public authority would no longer suffer adverse financial consequences from any such request since it could legitimately recover its costs in responding to them. This measure would give the person making the request the opportunity to make the decision to pay for their request in circumstances where they believed the request was crucial to them.

    —  A third measure which could be introduced which would ensure that legitimate freedom of information requests were not excluded by these new proposals would be to require that an application for disclosure under the Act cannot be refused solely on grounds of costs where the application is made by a UK registered charity, or is otherwise made in the public interest. The DCA may wish to note that under the Charities Act 2006 charities can now only be established if it shown that they are for the public benefit, and that, furthermore, they are only permitted to act in a way which furthers their charitable purpose. Therefore it can be assumed that any freedom of information requests coming from a charity must be for the public benefit.

2.  DRAFT REGULATION 7

  The other element of the Regulations which the working party raised concern over was the proposal to increase the scope for aggregating of requests under the Act. Draft Regulation 7 proposes to allow the aggregation of requests which do not relate to the same or similar information.

Comments

  This proposal will mean that legitimate groups will be very restricted in the information which they are able to receive under the Act. It is noted that the regulations do provide that such requests can only be aggregated where it is "reasonable in all the circumstances" to do so and that it is proposed that one of the factors that may be taken into account (but which will not appear on the face of the regulations) is "whether the requester is an individual who is not making the request in the course of a business or profession".

Public interest exemption

  In a similar way to the proposal discussed in paragraph 1 above we would urge that a factor to take into account in any FoI request should be whether the request is made in the public interest. We believe that this should be included in Draft Regulation 7. We are concerned that even this will not sufficiently protect the underlying purpose of the legislation—namely to improve transparency of information—and would therefore suggest that there should be a specific exemption from the power to aggregate either in the Regulations or as an amendment to the Act where the request comes from a charity or is in the public interest.

  We very much hope that the Constitutional Affairs Committee on Freedom of Information will consider these written submissions in their examination of the current Freedom of Information requests system and the Government's proposed new Regulations.

April 2007





 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2007
Prepared 24 June 2007