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
| 
