House of Commons - Post-legislative scrutiny of the Freedom of Information Act 2000

Post-legislative scrutiny of the Freedom of Information Act 2000 - Justice Committee Contents

3 Costs and fees

How much does the freedom of information regime cost?

47. Before considering the details of the costs exemption contained in section 12 of the Act, we wanted to find an approximate figure for the overall cost. We discovered that establishing such a figure for the freedom of information regime as a whole is difficult for a number of reasons. The Act applies to a wide variety of public authorities, some of which record numbers of requests, others which do not.[99] Public authorities also have different criteria for treating a request for information as coming under the Act or as an informal inquiry. Actual costs are even more rarely recorded than the number of requests, and methods of recording them also vary widely.[100] By their nature, individual freedom of information requests will require different amounts of staff time, from ones that can be simply answered or rejected to requests requiring time-consuming redaction or extensive consideration by very senior members of staff. The Constitution Unit found that a widespread difference in methodologies made international comparisons of the costs of the right to access information in other countries almost impossible.[101]

48. Despite the difficulties attempts have been made to assess the financial impact of the Act on public authorities. The 2006 Frontier Economics report for the Department of Constitutional Affairs estimated the cost of freedom of information requests to central Government in 2005 at £35.5 million,[102] although its methodology has been heavily criticised by the Constitution Unit among others.[103] The Constitution Unit itself estimated the cost of freedom of information to local government at £31.6 million in 2010.[104]

49. Assessing the true cost of the freedom of information regime is also difficult given that the benefits that arise from the right to access information cannot usually be costed. Dr Ben Worthy, of the Constitution Unit, told us:

The difficulty is that people, particularly those at the top of organisations, see transparency as something with concentrated costs and dispersed benefits [...] one of the difficulties is seeing the benefits in concrete terms in the same way that you can easily and quickly see the financial costs and, in some cases, the political costs of openness. There may be a bias in the discussion about how much FOI costs [...][105]

50. Several witnesses gave us examples of where money had been directly saved by the exposure of inefficiency or poor practice. David Hencke, Senior Investigative Journalist for ExaroNEWS who appeared before us on behalf of the National Union of Journalists, told us about a recent story he had broken which arose from a freedom of information request which revealed that the head of the Student Loans Company was being paid through a company rather than by his employer and was therefore paying a lower rate of tax: "The general feeling is that the Lester case, frankly, was a complete fiddle. It was the only known case of someone getting paid holidays and a pension who was actually a company.^"[106] Mr Hencke calculated that the revelations "saved the taxpayer at least £26,000, if not £40,000" as Mr Lester's contract had been varied as a result of the publicity, but that the consequent savings of the Government's decision to cease payment of civil servants through companies saved much more.[107] Maurice Frankel of the Campaign for Freedom of Information, also highlighted the deterrent effect of the greater level of transparency introduced by the Act:

One of the early freedom of information requests in Scotland revealed that councillors in a particular authority were flying all over the world to go to flower shows— spending £6,000 a trip to go to Tokyo for a flower show. That stopped the moment FOI exposed it. There is a lot of that happening. Indeed, the Government are encouraging the use of freedom of information precisely for that purpose. If you simply count the cost of answering requests and not the savings that result from them and from the anticipation of requests, you will miscalculate their overall impact.[108]

Mr Frankel emphasised that the deterrent effect of the right to access specific information could not simply be substituted by imposing proactive publication requirements on public authorities because, when considering the mandatory publication of expenditure over £500 for local authorities for example, "if you look at the way some of them publish them, [they are] incomprehensible without making an FOI request to find out what the money is being spent on."[109] Other witnesses, including The Press newspaper in York,[110] Packet Newspapers[111] and Newsquest Midlands South,[112] provided a number of individual examples where increased transparency had led to direct and indirect savings to the public purse.

51. Beyond the direct and indirect financial impact of the Act other benefits, such as greater openness and accountability as well as a better informed citizenry, are incalculable in monetary terms. The role of access to information in a democracy was highlighted by Lord Hennessy of Nympsfield:

[...] the Freedom of Information Act [...] was the completion of the circle that began with the extension of the franchise. It took from 1832 to 1948 to get to one person one vote, but the remaining arc was the knowledge bit, the test being whether an elector could cast an informed vote if he or she wanted to and really tried hard to find the stuff. The answer was that until the Freedom of Information Act very probably not. It has to be seen as part of completing the virtues of the franchise in an open society.[113]

52. David Higgerson, Digital Publishing Director of Trinity Mirror Regionals and appearing before us on behalf of the Newspaper Society, told us that the costs argument made by public authorities could be viewed as a "Trojan horse" for organisations whose real concern was the embarrassment that can arise from revelations following a freedom of information request:

[...] if the cost argument carried sway at a time when the public sector was under a lot of strain, we would end up with a Freedom of Information Act that was massively watered down, whether through trying to impose costs at point of entry, reducing the hours available per request or the loading up of duties that could fall within those hours. Basically, we are saying that the cost argument feels a bit like a Trojan horse for authorities that do not like members of the public being able to ask the questions that they want to ask.[114]

The Constitution Unit agreed that the "Achilles' heel" of the right to access information was likely to be cost: "Resources are vital and are likely to be the Achilles' heel of FOI. How much FOI 'costs' is a difficult issue, with competing methodologies offering competing answers with bias in measuring cost as the benefits are more difficult to measure."[115]

53. The Freedom of Information Act is a significant enhancement of our democracy. It gives the public, the media and other parties a right to access information about the way public institutions in England and Wales are governed, and the way taxpayers' money is spent. Governments and public authorities can promote greater transparency but, without FOI requests, decisions on what to publish will always lie with those in positions of power. FOI has costs, but it also creates savings which accrue from the disclosure of inappropriate use of public funds or, more importantly, fear of such disclosure.

The Fees Regulations

54. Section 12 of the Freedom of Information Act provides that a public authority is not obliged to comply with the duty to publish information if the cost of compliance exceeds "the appropriate limit".[116] The appropriate limit is governed by the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 which sets the cost at £600 for central Government and £450 for other public bodies.[117] This translates as 24 and 18 hours respectively based on a standard charge of £25 per hour, regardless of the actual cost of the staff time taken.[118] Public authorities can charge if the limit is breached.[119] When calculating the time taken to respond to a request authorities can include searching for the information and drawing it together[120] but not reading it to see if exemptions apply, redacting data[121] or deciding whether it can be released. Few public authorities use the charging mechanism:

UCL research relating to local authorities indicates that a high proportion state that they never charge for information with between 62% and 72% stating that they never charged for information in the period 2005 to 2009. Of the remaining 28% to 38%, the clear majority indicated that they charged in less than 5% of requests. A small minority (peaking at 7% of respondents in 2007) indicated that they charged in 6% of requests or more.[122]

55. Durham University summarised the view of many public authorities:

The Fees Regulations do not appropriately take in to consideration the true cost of dealing with many FOI [...] requests. The University is obliged to spend many more than 18 hours work on some information requests due to the fact that we are unable to take time spent on reading and redacting information into consideration when calculating the estimated cost of a response. This has placed considerable burden on the central Data Protection and FOI requests service as complex requests often require considerable reading time and subsequent redaction time. The University is not often able to apply the Section 12 exemption "Where cost of compliance exceeds appropriate limit" as information is usually easily located and retrieved.[123]

Despite this evidence JISC InfoNet found the most commonly used exemption in the university sector was section 12: 22% of disclosure refusals relied on the section 12 exemption in 2010, increasing to 28% in 2011.[124] In contrast, Ministry of Justice statistics show that section 12 was not one of the eight most used exemptions by central Government departments in 2011.[125] Overall, our evidence from public authorities reflected the finding of the Memorandum that:

The appropriate cost limit is largely viewed as inappropriate by public authorities who feel either that the limit is too high or that the range of activities which can be included in its calculation are not comprehensive enough.[126]

56. Alex Skene, from the website WhatDoTheyKnow which helps people seeking to make a request under the Act, told us: "The cost limits are broadly about right, because, although many of them tend to go over the limit, those requests are very much on the lines of, "Give me everything you've got on this subject.""[127]Maurice Frankel, of the Campaign for Freedom of Information, gave us the view of requestors:

[the scheme] is a compromise. The UK has an unusual arrangement, which other countries generally do not have. They generally have a provision that allows authorities to refuse if it would result in an unreasonable diversion of their resources, and you have to work that out each time. We have an absolute limit of £600 or £450, which cannot be exceeded even when there is a substantial public interest in gaining access to the information. It is a compromise, with a requirement that people moderate their requests to keep within that limit, and on the whole they do not pay for the information. It gives people a reasonably good chance, but you also see that very large numbers of requests are refused because they exceed the cost limit. It is quite a tricky matter for people to bring a request within the cost limit if they do not get good advice from the public authority on how to do it and what information they hold.[128]

57. Paul Gibbons, who runs the blog FOIMan and has had responsibility for freedom of information while working with a number of public authorities, was concerned that altering the current regime "could disproportionately affect legitimate research and scrutiny of the public sector [...]"[129]

58. In 2006, a report by Frontier Economics for the Department of Constitutional Affairs recommended that what have been termed 'thinking' activities (reading, considering whether exemptions apply, redaction) be included in the 18 hour limit if an appropriate methodology for calculation could be found.[130]The Memorandum notes that this suggestion was rejected by the Constitutional Affairs Select Committee on the grounds the Frontier Economics report had failed to give sufficient weight to the public interest in access to information or to the wider benefits of the right to access information and that a change to the appropriate limit regime would require a most rigorous cost-benefit analysis.[131] This argument was accepted by the Government which abandoned plans to change the Fees Regulations. The central difficulty with broadening the types of activity included in the 18 hour limit was summarised by the British Union for the Abolition of Vivisection:

It is very difficult to see how thinking time could be assessed in any objective, consistent way. Some people read quickly, some less quickly. Whether an exemption applies should not depend on the lottery of whether a request comes before a slow reader or a quick reader. Similarly, some FoI officers will be more conscientious than others in considering the exemptions. The more conscientious an officer is, the more likely the request would fail an expanded section 12 test. In some cases an almost limitless amount of time considering case law could be spent. The length of a document cannot be determinative—it may be much more difficult to decide whether an exemption applies with a short document than with a much longer one. Would time thinking about a request in the bath be allowed? If not, why not?[132]

59. Leeds City Council suggested that the appropriate limit was "wholly unrealistic and outdated" and should be calculated by reference to the "actual cost of staff time" rather than the standard £25 an hour.[133] One difficulty with this suggestion is that it would produce uneven results; an important issue with a strong public interest which had to be considered by a senior member of staff, even briefly, would be more easily refused than a trivial request which could be answered in full by a junior official. Matters most worthy of scrutiny, therefore, would often be the ones which a public authority could refuse to release information on. As the Campaign for Freedom of Information noted, such a system would also be open to abuse:

Authorities could propose to involve a lawyer, talk the matter over with one or two extra officials, or consult additional third parties, where it was not strictly necessary, simply to increase the chances of refusing the request on cost grounds.[134]

Finally, the process of determining the actual cost of a request would be expensive and time-consuming in itself, whether the cost was calculated when the request was received or whether the process was pursued until the financial cut-off point.

60. Developing a methodology whereby subjective activities such as reading and consideration time could be included in the 18 hour time limit does not seem to us to be a feasible proposition. Such activities are overly dependent on the individual FOI officer's abilities, introducing an element of inconsistency into the process that undermines the fundamental objective of the Act, that everyone has an equal right to access information.

61. We recognise, however, that complying with its duties under the Act can be a significant cost to a public body. A standard marginal decrease in the 18 hour limit may be justifiable to alleviate the pressure on hard-pressed authorities, particularly in the context of increasing numbers of requests. We would suggest something in the region of two hours, taking the limit to 16 hours rather than 18, but anticipate the Government would want to carry out further work on how this would affect the number of requests rejected under section 12, and the corresponding weakening of the right to access information.

Potential cost drivers

NUMBERS OF REQUESTS

62. The available data suggests that the number of freedom of information requests is growing. Ministry of Justice figures for requests made to central Government departments suggest "the number of requests has grown rapidly between 2005 to 2011—an average of 4% per year",[135] although the other central Government bodies monitored by the Ministry of Justice, such as the Health and Safety Executive, remained relatively stable.[136] The Constitution Unit estimated that the number of freedom of information requests to local government had risen from 60,361 to 197,737 between 2005 and 2010, a rise of over 200%.[137] An annual review of the number of requests received by universities has been carried out by JISC InfoNet since 2005. It found that there was an average monthly number of requests under the Act per institution of 10.1 in 2011 compared to 8.6 in 2010, and 2.8 in 2005. The Foundation Trust told us its members had concerns that "the number of requests [is] growing rapidly to the point of being overwhelming [...]"[138]

63. Research suggests that the reason for the growth in freedom of information requests is better awareness of the legislation. Dr Ben Worthy told us that high profile media stories related to freedom of information requests, such as MPs' expenses, together with revelations about local matters, led to more people becoming aware of and using the Act. This was reflected by the appearance of "clusters" of inquiries about the same issue: "many officers told us [...] that FOI requests come in waves. They cluster around particular issues. For example, when it snows there will be a spate of requests about gritting or holes in the road; there will be a spate of requests about RIPA and surveillance legislation when those stories come up. It is not one group making requests. Lots of people are quite interested in these subjects."[139] Professor Robert Hazell told us that this relationship between greater awareness of the Act and greater use of the Act was seen in other countries:

All countries see an increase in the volume of requests in the early years of FOI. I first started studying FOI over 25 years ago, when I was a civil servant. I had a travelling fellowship for a year, and I went to Australia, Canada and New Zealand about three or four years after they had first introduced FOI. In Australia and Canada, where they kept statistics, they saw quite dramatic increases in the first three years or so. The UK is no exception. People gradually learn about the existence of the Act and read about it through the media, and so it builds up in that way.[140]

Professor Hazell noted that the international picture did not reveal a consistent pattern as to when the volume of requests might plateau.[141] The Nuclear Information Service noted that a greater volume of requests can be considered "an indicator of the success of the Freedom of Information Act [...]"[142]

GREATER COMPLEXITY OF REQUESTS

64. The NHS and university sectors told us that the requests they received were growing in complexity. Wyn Taylor, of the Liverpool Heart and Chest Hospital, reflected the views of several NHS organisations from whom we received evidence when he told us:

The requests themselves have increased greatly in complexity [...] since the Act was introduced. In 2005, there would be one very straightforward question asking for one very specific document, whereas now one request can include up to 20 or 30 individual questions. Those questions are not confined to one specific area within the organisation. They are directed to a number of areas such as nursing, IT, estates, contracts and performance. [This means that] the cost of complying with the requests has increased significantly since the Act was introduced.[143]

We heard similar evidence from Universities UK that "the cost and complexity of requests appears to be increasing" which it said was demonstrated by the increasing amount of time taken for each request to be processed.[144] However, we were also told that simple but broad requests, for a whole dataset or a large document, also had the potential to be very time-consuming and so costly because the information had to be read to see if exemptions applied and, if appropriate, redacted, neither activities which are included in the 18 hour time limit.[145]

SMALL NUMBER OF HIGH COST REQUESTS

65. In a review of the international literature on the cost of freedom of information requests, the Constitution Unit found:

Despite the differences in methodologies, a common finding in each report was the financial impact of administering a small number of disproportionately expensive requests. For example in the UK, although only 5% of requests cost more than £1,000 of officials' time, they tended to take 7 times longer to process than average requests and accounted for 45% of total costs. Such requests have undoubtedly bolstered final figures and, in some respects, skewed final costing data as they exceed the statutory price limit each country has in place in order to avoid these costly processes.[146]

INTERNAL REVIEWS

66. Estimates of the relative cost of the freedom of information regime in central and local government suggest that the cost to central Government per request is considerably higher.[147] The Constitution Unit found that much of the additional financial cost came from the high number of internal reviews: "Internal reviews are particularly expensive for government departments. Annually, requests to central Government generate approximately 2,700 internal reviews. On average, central [Government] reviews cost £1,208—more than 5 times the amount of an initial request." Consulting ministers was, unsurprisingly, particularly expensive.[148]

67. Evidence from central Government officials suggested to us that the relatively high numbers of internal reviews were due, at least in part, to the type of information held by central Government which will inevitably be subject to more exemptions and therefore more likely to be argued over. Roger Smethurst of the Cabinet Office described the difficulties encountered by his Department, which could make internal reviews more likely:

[...] the Cabinet Office holds a lot of sensitive information. In order to conduct the public interest test, we need to consult very senior stakeholders, both in Government and beyond, and that takes time. It is burdensome. Sometimes, if there are large volumes of information, it can be very difficult indeed.[149]

68. While individual requests vary enormously in how much they cost it should be noted that the requests which are cheapest to process may be the applications which can best be described as frivolous. We heard from witnesses who have fielded inquiries about paranormal activities in council owned properties,[150] whether the Cabinet Office has contingency plans in case of an attack by zombies[151] and similar. While we consider whether these are legitimate inquiries in Chapter 5 below, witnesses told us they can usually be disposed of following a brief telephone call or email, which means they are inexpensive.[152] Requests where disclosure of the information is in the public interest, however, may require significantly more resource. Focusing on the cost of individual inquires can obscure this important point.

What would be the impact of introducing fees for requests?

69. As outlined above, a request under the Freedom of Information Act is usually free for the requestor.[153] It has been suggested to us by some public authorities that we should investigate the feasibility of charging fees for some or all requests. We canvassed a number of options with our witnesses.

FEES FOR ALL REQUESTS- THE VIEWS OF OUR WITNESSES

The impact of fee charging

70. Our witnesses held divergent views on the desirability of introducing fees for all freedom of information requests. The Rt Hon Jack Straw MP was in favour of introducing a fee "parallel to that for data protection requests. It would be about £10."[154] Michelle Thew, Chief Executive of the British Association for the Abolition of Vivisection, while noting "there may be broader principles for individuals about the Act and charging", suggested that campaigning groups were not likely to reduce the volume of their requests: "we would not oppose the introduction of a small fee. The £10 level has been discussed; that would not be a problem for us."[155] The media, in contrast, told us that the introduction of fees would reduce their use of the Act. David Higgerson said charging would "certainly" result in reduced use of the Act for regional newspapers[156] "because we would not be guaranteed a result from FOI requests, they would probably stop using it altogether."[157] Doug Wills, Managing Editor of the Evening Standard, i, Independent and Independent on Sunday, agreed that charging would reduce the use of the Act by the large daily newspapers as well: "It would reduce the volume of questions, unquestionably, even at the Evening Standard [...] It would reduce the number of questions that we were putting for budgetary reasons."[158]

71. Birmingham City Council supported the introduction of a standard fee:

One possibility would be to adopt the charging regime for subject access requests, i.e. levying a flat rate initial fee of e.g. £25 per request. This would force requestors to moderate their requests to the information they need, rather than sending the same request to hundreds of public authorities, each of which would have to search or respond to the request or direct them to the Council website if the information has been published.[159]

While some witnesses from public authorities expressed support for charging this was usually directed at specific types of requestors, such as journalists or applicants who would benefit commercially from the information. We consider possible models for targeting fees at certain categories of requestors below.

72. Mr Straw's motivation for introducing a charge was to reduce the volume of requests. He told us that a £10 fee "would not stop important requests, but it would act as a check."[160] The Campaign for Freedom of Information (CFOI) suggested, however, that the impact of a small charge was most likely to deter those of limited means regardless of the importance of the request: "Larger media organisations, well funded charities and businesses might continue to make frequent use of the Act, while small scale users might ration or forego their use of it."[161] The CFOI gave the example of a mother in dispute with social services over whether her child should be taken into care as one example where a person of limited means would benefit from, for example, making an FOI request for the protocol that midwives and health visitors at her local maternity unit were required to follow in order to put a child on the 'at risk' register. Equally, others in dispute with a public authority "might need to make a series of requests to it; some issues may require that requests be made to a variety of involved agencies; and some research may be carried out by making the same request to comparable authorities."[162]

73. The CFOI also noted that the effect of a standard charge would introduce an element of inconsistency into the operation of the Act:

The introduction of application fees would mean that those who explicitly relied on their statutory rights would pay, whereas those who sought information without invoking, or in ignorance of, their rights would not. This would create a two-tier system in which those who could not pay, or were unaware of the access right, might have information unjustifiably withheld, even if it was clear that this could not be done under the legislation.[163]

74. Witnesses also raised concerns over the cost of administering charges. James Rogers, Assistant Chief Executive of Leeds City Council, told us that his authority, as well as many others, did not charge the £10 fee for Data Protection Act requests because "the administrative burden of administering the charge outweighs the issues in terms of putting it in place." Mr Rogers went on: "That logic would then apply to any question of whether we should charge for FOI requests, in the level of charge we would adopt and then how you would administer that."[164] Edward Hammond, of the Centre for Public Scrutiny, was concerned that a "bureaucratic superstructure" could arise to deal with fees.[165] The Information Commissioner agreed that charging schemes in each public authority would "cost a lot to administer."[166] Jim Amos, of the Constitution Unit, told us that a study of the use of fees for requests in Canada found that the public authorities themselves sought to circumvent the legislation:

[...] if you paid a fee it was formally an FOI request. However, many said, "Look, if you really want this as a formal process, give us the fee; otherwise just ask us and we will give it to you informally", because there was so much administrative work to handle the payment.[167]

75. The Information Commissioner told us that other action should be taken by public authorities to increase their transparency and reduce the costs of freedom of information before charging should be considered:

[...] before you ever get to the question of charging, there is an issue for the ICO about publication schemes. We have done a lot of work on the model publication scheme that public authorities should be running for proactive disclosure and for making clear on their websites where information can be found. It is a bit rich to have public authorities saying, "We are assailed by unreasonable freedom of information requests", when they do not have an adequate publication scheme, they have not got their act together in terms of records management and have a rotten website and so on. There are things that you can do before you ever get to charging.[168]

The Commissioner also noted it was "part of a public authority's job to be accountable and to be answerable, and the Freedom of Information Act is the way they do it."[169] Edward Hammond said:

[...] with wider public information, if decisions are being made in your name and public money is being spent in your name and on your behalf, surely you should have a right to understand how those decisions are being made. There is a cost involved—of course there is—but that is the cost of democracy. That is inherent in the fact that, hopefully, we have a system where informed citizens are able to make choices—certainly in the future as public services arguably become more marketised—about the way that services are provided to them through having access to a freedom of information inquiry.[170]

Alex Skene, of the website WhatDoTheyKnow, also had concerns about the impact of fees on transparency:

You will have to rely on people such as the regular scrutineers of public bodies to ensure that money is being spent in the right way. There may be less transparency. Wirral Borough Council said today that it does not want charges because it will not stop cover-ups but will stop them being made public; when something has gone wrong, the council will be able to stop the local populace finding out what is going on.[171]

The York Newspaper agreed: "It is our view that the FOIA was a long-overdue recognition of the public's inherent ownership of public information, and of its right to see that information free of charge [...]"[172]

FEES FOR REQUESTS FROM WHICH THE REQUESTOR WILL COMMERCIALLY BENEFIT

76. Other witnesses suggested that fees which targeted certain types of requestor such as journalists and businesses looking to benefit commercially from the information they receive would tackle the issue of volume while preserving the right to access information for the general public. Roger Gough, Councillor for Kent County Council, expressed limited support for a "nominal" charge for requests, as long as it was "hand in hand with the wider transparency agenda" but was more strongly in favour of charging specific users of the Act who expected to benefit commercially from the information they were given.[173] Sue Slipman told us that while "there are some strong arguments for charging [...] I do not think we would want genuine individuals and members of the public getting caught up in it if there is a way to avoid that."[174] While it did not support the introduction of fees, Equanomics suggested that "if there is a decision to introduce fees, we believe that there should be a general waiver of any fees for charities, individuals and VCS organisations. We also believe that newspapers have often shone a light on public affairs and should not, as a matter of principle, be charged where there is a public interest."[175]

77. The difficulty with charging certain types of requestor is that the freedom of information regime is based on 'requestor blindness'; all applicants have the same rights to receive information, regardless of who they are or the purposes for which they want it.[176] The Information Commissioner summarised the difficulties as follows:

The imposition of charges does not really get us anywhere. The experience in the Republic of Ireland was that it had a devastating effect initially because of the number of requests being made, both good and bad. You may want to dissuade cranks, but there are lots of rich cranks.[177]

Policing a system in which requestors are required to provide some form of identification would therefore be both difficult and expensive.

78. An alternative mechanism, suggested by Leeds City Council, was that:

[...] the appropriate limit of £450 specified by the Regulations mentioned above should not stand in isolation from the number of requests a public authority receives, and that this limit should be linked in some way to the volume of requests received, possibly with a limit by individual applicant or by subject matter.[178]

The Campaign for Freedom of Information noted that this suggestion was investigated as a possibility by the then Government in 2006:

For example, one of the proposals was to allow the aggregation of all requests to an authority by the same individual or organisation within a 60 day period, regardless of their nature. (Currently, only requests which relate to the same or similar information can be aggregated). The proposal would have meant that a local newspaper might be able to make just one or two requests a quarter to a local authority, and having used its quota up on, say, a child abuse issue would be unable to seek information about other questions relating to education, road safety or housing until the next quarter. A national newspaper or broadcasting organisation might reach the cost limit with a single request to the Home Office about immigration and then be unable to submit further requests to it even on an entirely different issue such as passport controls, drugs policy, policing or animal experimentation.

The government later published more details of how the new aggregation provision might work, proposing that authorities should be more ready to aggregate requests made by an individual for commercial "or professional purposes" than for other reasons. We assume that requests by doctors' organisations concerned at the impact of NHS reforms, or campaign groups concerned with issues of public interest, would thus have been particular targets for the new measures.[179]

79. The question of who Parliament envisaged the Act being used by is considered above at paragraphs 44 and 45.

CHARGING MEDIA COMPANIES

80. We asked witnesses whether a fee 'at source', for example on all media companies, to be collected and distributed by the Information Commissioner to assist public authorities in funding their FOI regimes, would be feasible. The Commissioner noted that such a system would be akin to a "stamp tax."[180] As well as being politically unpopular this proposal might create a perverse incentive for media companies to maximise the number of requests made in order to feel they had their 'money's worth'.

81. The Act operates on the basis of requester blindness. As a result developing a way to charge requesters who commercially benefit from the information they receive from public authorities is difficult, if not impossible. Any requirement that requestors identify themselves could easily be circumvented by requestors using the name of a friend, family member or other person. Attempts to police such a system, either by public authorities or the Information Commissioner, would be expensive and likely to have a limited effect.

82. It must also be recognised that the focus of the Act is whether the disclosure of information is justified, not who is asking for that information. If the statutory scheme deems it right that data should be released then it is irrelevant who is asking for publication; release of such information is to all, not just the individual requestor. Nevertheless it can be argued that someone seeking to exercise freedom of information rights should be willing for the fact they have requested such information to be in the public domain; we therefore recommend that where the information released from FOI requests is published in a disclosure log, the name of the requestor should be published alongside it.

FEES FOR ALL REQUESTS - THE IRISH EXPERIENCE

83. When implemented in 1998, the Irish freedom of information regime did not charge for requests.[181] In 2003, the regime was amended to allow public authorities to refuse a request unless a fee was paid.[182] Fees are currently set[183] at €10 for a request for information, €25 for an internal review and €50 for an appeal to the Irish Information Commissioner.[184] The 2004 Annual Report of the Irish Information Commissioner's Office showed a 32% drop in requests for information.[185] The actual drop in requests equivalent to the English freedom of information request was, however, around 50%, because the number of requests overall included those for personal information, equivalent to Data Protection Act requests in England and Wales, for which a fee was not introduced. The number of requests was relatively static in 2006 and 2007,[186] the year in which the Irish Information Commissioner concluded in her Annual Report that "the introduction of fees has acted as a major obstacle to the use of the Freedom of Information Act."[187] Since 2007 the number of requests climbed to a peak of 4,905 in 2009, compared to 7,601in 2003,[188] but fell back to 3,936 in 2011.[189] The Irish Information Commissioner, who was not consulted on the introduction of fees, said in a speech that fees were "a major obstacle to the use of the FOI Act" which "seems to suggest that the people are seen as adversaries and nothing more than lip-service is being paid to the principles of open, fair and accountable government."[190]

84. The numbers of requests made recorded by the Irish Information Commissioner contain underlying trends. Dr Ben Worthy, of the UCL Constitution Unit, told us, perhaps surprisingly, that media and commercial requestors in Ireland were the groups most dissuaded from putting in requests by the introduction of fees: "officials seemed to believe that fees had an effect on two particular groups—the media and businesses."[191] The Irish Information Commissioner has made similar findings in her annual reports.[192] It is unclear why this might be, however, a better understanding of the system by those classes of requestors may have been a significant factor as Dr Worthy found that:

after only a few interviews that one of the difficulties with fees in any FOI system [...] is that there are ways round it. A number of Irish FOI officials to whom I spoke found that when fees were introduced they would get 10 questions in one request, so the statistics may not tell the whole story.[193]

85. While we recognise that there is an economic argument in favour of the freedom of information regime being significantly or wholly self-funding, fees at a level high enough to recoup costs would deter requests with a strong public interest and would defeat the purposes of the Act, while fees introduced for commercial and media organisations could be circumvented.

86. Any future reconsideration of the economic argument for charging would need significantly better data on the number of requests made under the Act and the costs incurred in responding to them.

Lessons to be learnt from local government

87. Research by the Constitution Unit on the freedom of information regime in local government found that an increase in the number of requests had not led to an equivalent increase in costs, in fact the overall price of the regime had decreased. The Unit's findings were as follows: Table 1: Time and cost of FOI from 2007 to 2010[194]

Year Estimated number of requests Average hours per request Total estimated cost of FOI to English local authorities (millions)

2005 60,361 16.4 £24.7

2006 72,361 13.1 £23.6

2007 80,114 15.3 £30.6

2008 118,569 11.6 £34.3

2009 164,508 8.9 £36.6

2010 197,737 6.4 £31.6

Data source: University College London, Department of Political Science, The Constitution Unit

The table relates specifically to local authorities in England and summarises request numbers, average hours spent per request and cost, using £25/hour, as in the Fees Regulations.[195]

88. Dr Jim Amos of the Constitution Unit, who led on the research, told us that a significant cost driver for public authorities (specifically local government) was the "burden" of requests, in other words their complexity, rather than the actual numbers. The best-performing local authorities took between one and six hours for each request whereas others took over 10 hours.[196] Dr Amos told us that, when collating the research for the study, he noted two councils estimated their average response time as 2 hours and 50 hours respectively. He said he:

[...]thought that was ridiculous, so I rang the FOI officer in both cases. I can comprehend why the two hours was only two hours; it was an experienced person who obviously had the confidence of the senior people, who would look at the request, go and see the appropriate senior officer and, yes or no, decide quickly. The other was in a very large council, with a junior person dealing with it, who would have to send it with an advice note to someone above; it would have to go up two levels before it could go across to another organisation, and I could well understand how that would be 50 hours. Bureaucracy and the cost-effectiveness with which the exercise is managed matters a tremendous amount.[197]

89. Dr Amos concluded that an efficient cost-effective freedom of information regime was one where "positive leadership [was] combined with good systems, staff and organisation".[198] Edward Hammond thought that:

Corporate ownership of the process is absolutely crucial. Corporate ownership is the first step towards developing a genuine cultural understanding about the benefits of transparency. The more that senior officers and senior members are involved directly in understanding the general spread of requests and how they work—and sometimes being actively involved in the process itself—the better the regime has the potential to work. If it is parcelled off to junior officers who are sitting apart from the council, it is more likely that the council will perceive it as a compliance issue and therefore as a burden.[199]

Roger Gough agreed, observing that the involvement of both senior officers and senior members in a freedom of information scheme "gives it the right degree of impetus and doesn't make it an odd little area off on its own."[200] He told us Kent County Council had sought to: "encourage our senior directors at least to take responsibility for the timing of getting stuff back to the central Freedom of Information Unit. We think there should be ownership of that by the most senior officers to ensure that it happens. Inevitably, you will have people of varying rank dealing with the actual mechanics of the request, but often it cannot be more junior staff because you need somebody who has the right picture of what is needed."[201] More broadly, other witnesses agreed that leadership was crucial. Paul Gibbons identified "a lack of leadership in the public sector championing FOI."[202] Mr Gibbons told us that "cynicism" about the value of openness and transparency was a "significant limit" on the benefits and effectiveness of the Act.[203]

90. Evidence from our witnesses suggests that reducing the cost of freedom of information can be achieved if the way public authorities deal with requests is well-thought through. This requires leadership and focus by senior members of public organisations. Complaints about the cost of freedom of information will ring hollow when made by public authorities which have failed to invest the time and effort needed to create an efficient freedom of information scheme.

99 Ev 126 Back

100 Anna Colquhoun,The Cost of Freedom of Information, Constitution Unit, University College London, December 2010, http://www.ucl.ac.uk/constitution-unit/research/foi/countries/cost-of-foi.pdf Back

101 Ibid, p3 Back

102 Frontier Economics, Independent Review of the impact of the Freedom of Information Act, a report prepared for the Department for Constitutional Affairs, October 2006 http://webarchive.nationalarchives.gov.uk/%2B/http:/www.dca.gov.uk/foi/reference/foi-independent-review.pdf Back

103 Anna Colquhoun, The Cost of Freedom of Information, Constitution Unit, University College London, December 2010 Back

104 Ev 169 Back

105 Q 75 Back

106 Q 139 Back

107 Qq 156, 155 Back

108 Q 21 Back

109 Q 22 Back

110 See Ev w166 Back