Archive for Charging

Practically Speaking Part IV – take it to the (appropriate) limit

The fourth in FOIMan’s series for PDP’s Freedom of Information Journal covers the appropriate limit – when is it acceptable to refuse requests on cost grounds?

This time my article for PDP looked at section 12 of the UK FOI Act and the associated regulations that set out the circumstances in which public bodies can refuse requests because they will cost too much to answer.

 

Is the Tribunal getting touchy?

FOI Man suggests that a new decision from the Information Tribunal seems to reflect an awareness of wider developments in FOI.

Despite all the conflicting messages coming out of the evidence to the Justice Select Committee’s post-legislative scrutiny of FOI, there was one issue that appeared to attract a relative degree of consensus. The MoJ, the Information Commissioner, public authorities, and some bloke called Paul Gibbons, all agreed that the provision for dealing with vexatious requests at section 14 of the Act needed attention. And it seems like the members of the Information Tribunal First-Tier (or at least some of them) have been following events at the post-legislative scrutiny closely.

The problem with section 14 (or more specifically section 14(1)), is that “vexatious” isn’t defined in the Act. Generally the Commissioner and Tribunals in the past have said that it should be understood to have its normal English meaning. But in practice, at different times, they appear to have had different understandings of what that is. Which is helpful, clearly.

We know that some individuals use the Act to make requests that have no serious purpose. Whether it be requests for zombie invasion plans or for expenditure on red pens, they don’t do FOI any favours – especially when the Act itself is under review.

And it seems that the Information Tribunal First-Tier (or at least those members who considered this case) takes this view. In a decision published last week, they ruled that the Independent Police Complaints Commission did not have to provide information requested by an individual and upheld the authority’s use of section 14(1). In doing so, they over-ruled the Commissioner, and argued that his approach to section 14(1) was too restrictive. They were also unequivocally critical of the requester himself.

The decision itself is interesting, in that it will give some encouragement to FOI Officers who have often felt discouraged by the Commissioner’s decisions and guidance from using this provision even when it might reasonably be seen as justified (despite the fact that the Commissioner has regularly and publicly encouraged them to use it more). But what is most interesting to me is that the decision appears to make reference to developments in and around the post-legislative scrutiny, when it says at paragraph 19 that:

“Abuse of the right to information under s.1 of FOIA is the most dangerous enemy of the continuing exercise of that right for legitimate purposes. It damages FOIA and the vital rights that it enacted in the public perception.”

The Tribunal also looked at refusal on the grounds of cost in this case (even though it arguably didn’t have to, given that it upheld the use of s.14(1)). The decision supports a fairly broad interpretation of the regulation 5(2) provision in the FOI fees regulations allowing public authorities to aggregate costs of requests for “similar” information received within a 60 working day period.

Again, arguably this could be interpreted by some as an attempt by the Tribunal to demonstrate that they support a pragmatic approach by public authorities. Could it be that the Tribunal has been stung by recent criticism from those such as Lord O’Donnell giving evidence at the Justice Committee’s hearings?

Arresting figures on the cost of FOI

FOI Man explains why he feels uncomfortable with one police force’s (sort of) transparent approach to FOI.

Avon and Somerset Constabulary, like many other public authorities, have a page on their website for FOI. And it’s full of really useful features like a searchable disclosure log. Fantastic. What ruins it slightly is that the top of the page is taken up by a huge box advertising how much they say answering FOI requests has cost them over the last three years.

The subtext is clear. You naughty little taxpayers should stop bothering us with FOI requests. You’re stopping us from catching murderers and burglars and taking lunch with the Press.

Now some will argue that this is a good idea. People should be made aware of how much FOI costs so that they use it responsibly. There is something in that. But here’s why I think that what Avon & Somerset are doing, and what it represents in terms of the attitude of public bodies, is wrong.

Firstly, as with all these figures that are put out during debates on FOI, the figures themselves are questionable. To be fair to Avon & Somerset, they are open about the methodology they use. They say that they use the formula requests x £30 x 18 hours. What they don’t say is how they arrived at this formula. It’s true that £30 is consistent with the cost calculated by the Ministry of Justice’s research which was published this week. But Avon & Somerset have displayed these figures for months at least judging from FOI requests about the figures. And when someone asked them recently to provide any correspondence relating to how they decided this formula, they responded that they held no information. So it isn’t possible to judge whether their methodology in calculating these figures is sound.

What is clear is that the cost of employing FOI Officers makes up a fairly small proportion of the cost quoted on the main FOI page. FOI requests have elicited a total cost of £69,587 for the 2010/11 financial year for the three FOI Officers employed.

And perhaps the idea of advertising up front the cost of compliance with FOI requests wouldn’t be so bad if the constabulary advertised the cost of other services in similarly large unfriendly numerals. Will people ringing 999 be told how much emergency calls cost to deal with before reaching an operator? I wonder if staff ordering refreshments for meetings are instructed how much the constabulary spent on tea and biscuits the previous year? I’ve got a hunch they’re not. We do know through an FOI request that the Constabulary spent £677,200 in 2010/11 on employing staff on marketing, PR and communications activities (including internet content), because they provided this in answer to an FOI request. But I’m pretty sure it isn’t prominently displayed anywhere on their website (I wonder why?).

The post-legislative scrutiny appears to have unleashed a no-holds barred full-frontal offensive on the right of general access to information. Avon & Somerset are joining the ranks of those whose evidence to the Justice Select Committee paints FOI in the darkest light possible. It’s also in the same tradition as the news stories about “wasteful” and “trivial” FOI requests that turned up in the Press suspiciously close to the announcement of the start of the post-legislative scrutiny in December.

Even I’ve been surprised by the intensity of this. Surely there are other things which offend public authorities or add to their administrative burden? So why does FOI in particular attract such venom from right across the public sector? And shouldn’t we question the fact that public resources are to some extent being used to campaign against a legal requirement?

I’ve always been sceptical about conspiracy theories. I still am. I believe that most, if not all, of the annoyance with FOI is about resources and being able to provide an effective service. Most public officials, and indeed politicians, are not consciously being secretive for the sake of it. Their righteous indignation comes from a sincere belief that FOI is an expensive addition and an obstacle to their core purpose. But their inability to see the bigger picture and understand that there are good reasons for FOI that justify some inconvenience means that less flattering perceptions of them will remain.

Incidentally, another study has been published, this time looking at the cost of FOI in the higher education sector. As with the MoJ report last week, from an academic point of view, all of this data on FOI is very welcome. But it still raises the question in my mind, why are public authorities expending quite so much effort on establishing the costs of FOI in particular? Why not other areas of their work? It leaves me feeling rather uncomfortable.

MoJ Costs Study – third strand of post-legislative scrutiny research

FOI Man reports on the latest research on the cost of answering FOI requests.

The Ministry of Justice says that the average cost of answering FOI requests to central government in staff time is £30 an hour, and that on average each FOI request to central government costs £184 to answer. These are the headline findings of newly published research from Ipsos Mori for the Department. The research took requests made to a range of central government departments in a one week period in late November/early December and tracked their progress by asking staff in those departments to complete sheets saying how much time they had spent on each category of work. The grades of the staff involved were also noted so that figures could be calculated based on the seniority of the staff involved as well as the time spent.

The 8 categories of work used were:

  • administration, including allocation and logging
  • searching for information
  • reading time
  • consideration
  • discussions with other depts in central govt
  • discussions with other bodies outside govt
  • drafting submissions and consultation with Ministers/board members
  • drafting of response (including redaction) and internal sign-off.

Some might raise eyebrows at the decision to double the figures recorded by staff in the study for discussions and consultation “because the majority of time recorded in this column did not appear to account for the time spent on the request by officials in other departments”, ie apparently because the figures weren’t as high as they thought they should be. However, by and large, the time spent on these activities does not form a huge percentage of the time spent on requests according to the report.

The study also looked at the cost of handling requests in 19 non-central government bodies and the cost findings are broadly similar. Rather curiously, they looked at the cost of handling EIR requests separately and concluded that they cost twice as much to answer as FOI requests. Many FOI Officers not involved in the research might feel that finding is questionable.

The report highlights two “expensive” requests. One it claims cost £2,500 and was not yet answered. The description of this request adds that “the majority of the discussion time can be attributed to two officials earning £100,000+ per annum”. It does not say why it was necessary for such well-paid officials to consider the request.

The report claims that 11% of the requests covered by the study were refused on grounds of cost, but that if reading, consultation and drafting time could have been included, a further 4% would have been excluded. Outside central government, this figure would be nearer 10%.

Overall the research appears a useful contribution to the debate about the cost of FOI, but as always it suffers from flaws in its methodology. This is my initial reaction to a very quick flick through the report on the research, and I’m sure that others will have more considered things to say in due course.

 

To give and not to count the cost

The following is a piece I wrote recently for a print publication but in the event it wasn’t used. I’m publishing it here for your interest, and in case it is of use to you in preparing submissions to the Post-Legislative Scrutiny.

This year FOI is going to be subject to more scrutiny than it has for a long time. Whilst the Coalition Government has pushed for more proactive publication of information, there have been hints that there are some voices at least within the Government that are keen to clip the wings of the general right of access.

In summer last year the Liberal Democrat Minister responsible for FOI in the Ministry of Justice gave an interview in which he highlighted the pro-openness initiatives of the Government. These included the changes in the Protection of Freedoms Bill, the moves made to force local authorities to publish details of expenditure over £500, and the consultations on widening the coverage of FOI to more authorities. He also announced a post-legislative review of the Act. One of the areas that he suggested should be looked at by the review was the cost of compliance with FOI.

Well, here we are 6 months later and the House of Commons Justice Select Committee is calling for evidence for the post-legislative review. The Ministry of Justice has already submitted a memorandum to the Committee setting out its key concerns with the Act, as well as the areas that it is broadly satisfied with. Unsurprisingly, the headline feature of the memorandum is a call for the committee to look at the fees regulations for FOI.

Section 12 of the FOI Act allows a public authority to refuse requests above an “appropriate limit”. The “appropriate limit” is set out in The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (2004 No. 3244). These allow authorities to refuse requests where the cost of carrying out certain activities is estimated to exceed £600 in central government departments or £450 in other public bodies. The activities referred to are:

  • determining whether information is held;
  • locating information;
  • retrieving information; and
  • extracting information from a document containing it.

The Ministry’s memorandum cites the views of a number of FOI practitioners. The view apparently prevailing amongst those surveyed is that the existing fees arrangements are inadequate to control a growing flood of FOI requests to their public bodies. They propose that the limits of £450 and £600 be lowered. Alternatively, or in addition, the suggestion is that reading, redaction and consideration of requests (perhaps including consultation with third parties and deciding whether exemptions should apply) should be included in the cost estimate. Both would mean that public authorities would be expected to spend considerably less time on answering FOI requests, and would be able to refuse many more of the requests that they are currently obliged to answer.

This isn’t the first time that the fees regulations have been looked at with a view to reducing the burden on public authorities. In 2006 – 7, the Labour Government consulted on a very similar proposal. It was eventually dropped (following the parallel furore over MPs attempting to remove themselves from the Act) by the incoming Prime Minister, Gordon Brown.

Many FOI Officers would welcome such a change. Even more of their colleagues would. It has been interesting to see a series of articles appearing in the media over the last month or so listing the “wasteful” and “trivial’ FOI requests which are a “drain on resources”. In the last year, local authorities have called for requests to be charged for, and in some cases, public bodies frustrated with the Act have taken it upon themselves to charge even though they don’t have the power to.

The Ministry has commissioned research to estimate the cost of answering FOI requests. For the previous government, Frontier Economics concluded that the cost to the public sector of answering FOI requests was £35 million in 2005. This time, in addition to the MoJ’s research, individual sectors are consulting on cost. JISC, the higher education central information service, is carrying out a survey of universities’ handling of FOI requests to support the HE sector’s arguments to the committee. There seems to be a determination to demonstrate how costly the general right of access can be.

The concern over cost is understandable in the current economic uncertainty. As one FOI Officer told the MoJ:

“It’s counterintuitive to impose a greater burden on a public body at the same time as you reduce its ability to deal with it”.

But we should be cautious before we rush to join the calls for changes to the fees regulations. Firstly, any change along the lines that have been proposed will substantially reduce the access to information currently available to anyone. If we believe in a right to information, surely we should be nervous of making such a change. Some individuals are disturbingly enthusiastic about curbing people’s rights in this area.

Secondly, there is very little agreement on how reliable figures on the cost of FOI can be arrived at. Last year one council concluded that answering requests had cost it £346,000 in 2009-10. But this was based on all received requests costing the maximum £450. Other estimates, including Frontier Economics’, have been similarly questionable. There are still no reliable or agreed measures for calculating the true cost of FOI.

Thirdly, it is worrying that the focus is purely on how much FOI costs. There has been very little attempt to establish how much FOI saves the public sector each year. Those savings are very hard to quantify. There are the savings that come from public employees and politicians taking more care over spending public money. There are the errors picked up as a result of FOI requests that shine a light on sections of the accounts that might otherwise have slipped by unnoticed. There are the efficiencies suggested by outside observers who might not otherwise be in a position to do so.

But beyond all the focus on cost, perhaps we’re missing the bigger picture. FOI is being used in all sorts of ways, by all sorts of people. It is part of a whole new way of engaging with government. We should consider carefully before encouraging those in power to curtail it, even in seemingly minor ways.