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.

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