On Monday 13 February 2012 the Justice Select Committee published the written responses it received to its call for evidence as part of the post-legislative scrutiny of the Freedom of Information Act 2000. Predictably the public authorities that responded were on the whole looking for a tightening up of the rules, particularly around costs and vexatious requests.
The Association of Chief Police Officers (ACPO) provided a response to the Select Committee that I personally disagreed with fundamentally. If ACPO’s suggestions were adopted there would be a significant curtailment of information access rights under the FOIA. The ACPO response can be read at the link above and is numbered FOI 12 in the document and starts on page 39.
The first recommendation of ACPO that I fundamentally disagreed with was their recommendation 3. ACPO are suggesting a flat fee that applies to all FOI applicants. They mention the £10 fee that applies in the case of Subject Access Requests under the Data Protection Act 1998. It is unclear whether they are suggesting a fee of £10 or simply pointing to a situation where access to information costs a small fee. In arguing for the introduction for a fee ACPO points towards the “continued demand on resources” that “has led to excessive and disproportionate effort in responding to FOI requests”. ACPO states that there is “an overwhelming response from forces in seeking support for the introduction of charges in respect of FOI requests”.
There is a financial burden placed upon public authorities in answering FOI requests and it is understandable that in a time of cuts where public authorities are being expected to make huge savings in their budgets that public authorities will look at everything they can to see where costs could be cut. It seems though that FOI is an easy target. Most public authorities still fail to see it as part of their essential frontline duties. Indeed, while all public authorities say that they support the need to be more accountable and transparent, the actions of many public authorities tell a very different story. Pro-active disclosure is, in my view, one of the best indicators as to whether FOI is working. Most organisations publish more information than they did before the FOIA came into force. However, many are not publishing anywhere near as much information as they might to on a pro-active basis. Pro-active publication is one thing that could potentially reduce the cost of FOI to the public authority.
Are public authorities reviewing their FOI requests to identify the kinds of information people are requesting on a regular basis? If so, are public authorities then creating publication schedules to publish that information regularly and on a pro-active basis? If not, why not? If the public authority is aware that information of X, Y and Z nature is requested on a frequent basis then why not pre-empt the requests and publish it on a more frequent basis? This saves both time and money. It saves time in that the information doesn’t need to be sourced, retrieved and then considered for disclosure in response to an FOI request. If information requires to be redacted then authorities do not need to spend time redacting it and then justifying why it has to be redacted in a refusal notice. I would have thought that it would have been much easier to produce a refusal notice citing Section 22 (information intended for future publication) than to carry out the entire FOI process in response to an information request, especially if it is information that is requested on a frequent basis.
I am not persuaded by the argument that because of government cuts that FOI is an expensive luxury. As public authorities make cuts to public services I believe that FOI is essential in making those decisions open and the decision-makers accountable for how they are cutting costs. Local campaign groups have had a lot of success in exposing unfair, disproportionate, illogical and potentially illegal decisions through FOI. If FOI didn’t exist, or it was made much easier for public authorities to refuse requests, or harder for applicants to make requests then this essential scrutiny on public authorities would be severely diminished if not lost altogether.
The Office of the Scottish Information Commissioner conducted research recently which looked at a number of things. One issue that it looked at was the introduction of fees for making requests. It found that 64% of people generally would be put off making a request if they had to pay for the information. This figure rose to 70% for those described as “not working” (a group upon which cuts could have a disproportionate impact) and among the 18-24 group (another group vulnerable in the face of government cuts) this figure rose to 80%. The potential effect on such a move, to borrow a phrase used by senior civil servants, could be “chilling”. There would be a severe curtailment of FOI rights simply by adding in a charge for the information requested. Why should access to officially recorded information only be for the rich or companies who can afford to pay a fee for the information?
The reduction in FOI requests might suit the public authorities. A decrease of more than half in the number of requests would represent a significant saving across the public sector as a whole and certainly within each public authority it would represent a welcome saving. However, I do not believe that reducing the number of requests is in the public interest. Certainly, there is an argument to remove some types of requests from the system. However, there are provisions within the Act to do just that. A public authority can deem a request as “vexatious” and by doing so (providing they are right to do so) they are discharged from their duty to respond substantively. Although, it is the request and not the applicant who is deemed vexatious and some authorities would like to see this changed so that an applicant can be deemed vexatious.
Under the cost headings ACPO also argued in its written response for a decrease in the number of hours used to calculate the costs of a request. Currently the limit is set by the Regulations at 18 hours. In essence if the public authority reasonably estimates it to take more than 18 hours to do certain things then the request can be refused on the grounds of cost. ACPO argues that this should be reduced to 10 hours. This would result in more requests being refused on cost grounds, which public authorities might see as a good thing. However, that doesn’t stop a determined person from getting the information. They could make more narrowed and focused requests every 3 months or so, thus avoiding the cost grounds but not really reducing the cost burden on the public authority. Obviously if the reduction in hours from 18 to 10 was brought in alongside a provision for a flat fee or charge for the information then that might have the public authority’s desired effect.
The truth is that nobody really knows how much FOI costs. It’s hard to establish any exact figures and refusal on the grounds of cost is always based on an reasonable estimate. The problem with establishing cost (and indeed the number of hours spent answering a request) is that no single person in an organisation is wholly responsible for FOI (except perhaps in your small parish councils and such like). Public authorities may have FOI officers, but generally people from around the organisation will be engaged in FOI activities. The Finance department would be engaged in requests relating to financial information, legal services in requests about legal matters and so on. Unless every member of staff were to keep a detailed record of exactly how much time they spent each day doing each of their tasks, including research FOI requests, then it’s not possible to get accurate figures. The best figures that we have are estimates and they could very well be over-estimated or under-estimated.
Some activities are not included in the cost calculations. What can be included in those calculations is listed within the Act. Some activities which could potentially be time-consuming and expensive are not included. The time spent reading and redacting information from documents is not included within the cost calculations. In most requests this does not pose any real problem. I would imagine that most requests involve very few documents to be read and considered in terms of whether information needs to be redacted or not. ACPO does give a single example though (and generally I am very wary of single examples). ACPO brings a request made to the City of London Police to the attention of the Committee. It claims that in one request there were “over 1,830 records, totalling some 250,000 pages” to be read through. The information had been easy to locate and extract and so could not be refused on cost grounds, but had the applicant insisted on keep their request as they had originally drafted it then City of London Police would have had no choice but to comply with the request in full. ACPO states the force estimated it would take some 2,976 days worth of time to consider all the information for disclosure. The fact that City of London Police managed to reach a compromise with the applicant suggests that the applicant’s initial request was probably far too wide in the first place. Anything that brings up that volume of recorded information probably is far too wide and rather than looking at cots and fees for information requests perhaps we should be looking at educating the public on how to make an effective request for information.
There is a lot more that I would wish to write on the post-legislative scrutiny of the FOIA, but I feel that this post long enough as it is so future posts will come. Although, I will end by stating that I am not singling out the ACPO response to the Select Committee and in future posts I will be drawing out evidence from other people or authorities which I disagree with.
Finally, I did submit my own response to the Committee and that can be read in the document linked to at the start of the post. My response is FOI 14 and begins on page 46.