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Lord Bassam of Brighton: I can confirm that. It will be dealt with in secondary legislation.
Amendment No. 85, in the name of the noble Lord, Lord Mackay, has three parts. The first part also requires the public authority to confirm or deny whether it held information regardless of the cost of so
doing. The second part enables an applicant to appeal to the commissioner where the authority failed to comply with the request under this exemption and would authorise the commissioner to consider such an appeal at his discretion. The third part provides that the commissioner direct that the authority disclose whether it held the requested information and would prohibit any appeal by the authority against that direction.New subsection (a) would effectively give the applicant the right to determine the work priorities of the authority and potentially skew the priorities of that authority. I hope that the noble Lord will reflect on that point and not press the amendment.
New subsection (b) would require the authority to balance the public interest benefit in complying with the request against the cost of compliance where to do so exceeds the appropriate limit. I suggest that the amendment is not necessary. Nothing in the Bill precludes the release of such information. Where a public authority has the power to disclose the information it would be required to consider doing so under administrative law. In considering this, it would have to balance the cost of disclosing with the public interest in doing so. Given that consideration, I hope that the noble Lord will not press the amendment.
The second and third paragraphs in Amendment No. 85 would provide applicants with a right of appeal to the commissioner when Clause 11 was not complied with. Such rights of appeal would of course be necessary if the substantive effect of the amendment were agreed to. However, the Bill already provides applicants with a right of appeal if a public authority relies on Clause 11 as a reason for non-compliance.
Amendment No. 85 would also empower the commissioner to direct an authority to comply with a request without giving the authority a right of appeal to the tribunal. Placing such an unchecked power in the hands of the commissioner would be out of line with other provisions in the Bill, which would be untenable. Again, I invite the noble Lord not to move the amendment.
Amendment No. 86 would place in the Bill a statutory minimum appropriate limit of £500. That is the maximum that the Government proposed, but we believe that it is more appropriate to deal with such matters in secondary legislation rather than in the Bill. As I said previously, secondary legislation provides greater flexibility. We should be able to adjust the limits in the light of experience. In view of the fact that we have already proposed a maximum appropriate limit of £500 for inclusion in such secondary legislation, I hope that the amendment will not be moved.
Amendment No. 88 would require the Secretary of State to make regulations in relation to costs and the way in which they might be calculated. The structure of the clause effectively imposes that requirement on the Secretary of State, if he wants to take appropriate authorising action. That gets round the need for the amendment, which is unnecessary and should be withdrawn.
Amendment No. 89 states the types of costs about which regulation may make provision for the purposes of Clause 11. The amendment requires regulations to be
- "based on the marginal cost of locating the information and of related disbursements".
Amendments Nos. 71 to 74, which were tabled by the noble Lord, Lord Mackay, would specify and limit the circumstances under which a fee may be charged. Amendment No. 71 would impose on the Secretary of State a statutory duty to include in the regulations the matters that are described in paragraphs (a) to (c) of Clause 8(4). Amendments Nos. 73 and 74 would require the Secretary of State to include in the regulation the matters that are referred to in those amendments. The first such provision would set a statutory limit of 10 per cent on the cost of compliance, which may be charged for complying. However, no separate provision is made in respect of actual disbursements, which would include, for example, photocopying and postage. Again, we believe that that matter is best dealt with in secondary legislation.
Proposed new paragraph (e), which would be created by Amendment No. 74, would introduce a statutory duty to set fees at a sufficiently low level to facilitate access to information by applicants. We are not persuaded that that is necessary. We have maintained throughout that public authorities will bear the bulk of the cost of providing information, and we can reasonably trust them to do so. Our preferred formula is contained in the consultation paper and reflects the provisions of Amendment No. 74. However, the negative resolution procedure would ensure that regulations in relation to fees were not prohibitive. I hope that those amendments will not be moved.
Amendment No. 72, which would amend Clause 8(4)(a), would require the Secretary of State to prescribe in the regulations the circumstances under which a fee might be charged. We are not convinced that that amendment takes sufficient account of the scope of the legislation. If it were agreed to, it would require the Secretary of State to identify all types of information and the circumstances under which any one of the 50,000 authorities that will fall under the scope of the Bill may charge. We believe that that would be an impossible task. The regulations would be complex, confusing and difficult to interpret. Drawing up such regulations could place unfair financial burdens on the many small authorities that will be covered by the Bill. We want a fair and proportionate system for charging, not one that is over-complex or prescriptive. If not, there is a real risk that authorities will concentrate too much of their efforts on deciding fees and not enough on providing the information requested.
That brings me to Amendments Nos. 101 to 103. Amendments Nos. 101 and 102 would be similar in effect to Amendments Nos. 72 and 74, but in relation
to fees for disclosure in the public interest. We do not want to make over-complex regulations that could undermine the object of the Bill, which is to achieve greater openness. For that reason, we do not think that the amendments should be pressed.Amendment No. 103 would add the words "which shall be" in Clause 14(3). I am not convinced that that would add anything to the Bill.
Amendment No. 90 is a government amendment providing that a public authority may charge for the communication of any information not required under Clause 1(1) because the cost of compliance exceeds the appropriate limit and is not required by law. It sets out that fees may be determined by the public authority in accordance with the regulation. The amendment will enable public authorities to charge for large amounts of information that might otherwise not be disclosed due to economic considerations. It thus ensures greater openness.
I shall try to deal with the questions that have been asked. The noble Lord, Lord Lucas asked whether periodic requests would be aggregated for the purpose of Clause 11. The short answer is no. The regulations currently in draft will make that clear. We shall place the draft fees regulations in the Library as soon as possible--certainly before Report.
The noble Lord, Lord Hunt of Wirral, asked how costs would be calculated. That will be set out in the regulations. He also asked whether officials might abuse the £500 limit. Two factors militate against that. First, information that can be released up to £500 must be released. Secondly, the commissioner can assess whether the clause is being properly relied on.
The noble Lord, Lord Brennan, asked some important questions. I do not particularly want to deal with vexatious litigants and the green ink brigade, but they exist and we are sensitive to their concerns. We are also sensitive to the real concerns of people who are not best placed to seek information using the legislation because of cost considerations. I shall reflect further on the point about the Aarhus Convention.
10.15 p.m.
Lord Cope of Berkeley: Once again we have been given considerable food for thought on fees. I shall not respond in detail to the Minister. We shall reflect on the issues in the coming days. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 72 to 74 not moved.]
Clause 9 [Time for compliance with request]:
Lord Falconer of Thoroton moved Amendment No. 75:
- Page 5, line 27, leave out ("subsection (2)") and insert ("subsections (2) and (2A)").
Lord McNally moved Amendment No. 77:
- Page 5, line 28, leave out ("section 1(1)") and insert ("sections 1(1) and 13").
We believe that whether or not to disclose should be a single decision and that that decision should not be allowed to trickle out over a prolonged period with no clear end-point. Applicants will be told that information is exempt. That will be followed by a further open-ended wait to discover whether the authority is prepared to release the information on public interest grounds. The provision could be exploited by obstructive authorities and encourage others to relax their standards, resulting in almost unlimited delays and undermining confidence in the legislation.
There is no reason to believe that consideration of the public interest should be a cause for long, time-consuming delay. If difficulties are encountered in complying with the 20-day period, authorities or Ministers can be open about that. It is possible that a formal request, perhaps from the commissioner, for a further time limit could be drafted into the legislation. I believe that this is where the common-sense provisions should come in.
However, no overseas freedom of information Act provides extra time for public interest decisions; nor does the UK code, which also contains a public interest test. Home Office figures indicate that currently 92 per cent of code requests are dealt with within the code's 20-day limit, or the tighter limits which departments themselves set. Therefore, we do not believe that this rather loose, open-ended clause should be left in the Bill. It would be a reassuring declaration of intent if Ministers could accept a 20 working day limit.
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