Tag Archive for Charging

EIR charges curbed by ICO

FOIMan reports on a move by the Information Commissioner to clamp down on charges for environmental information.

Wind turbine in countrysideA new decision from the Information Commissioner moves the regulator’s position on charges under the Environmental Information Regulations (EIR) on from the policy announced in 2016. If the decision stands, it means that public authorities will not be able to charge for environmental information if they wouldn’t be able to charge for it under the Freedom of Information Act (FOIA).

In a decision issued to Folkestone and Hythe District Council the Commissioner  has ruled that a charge of £325 to access environmental information was not reasonable. In effect, the ICO’s decision sets out that it cannot be reasonable to charge for environmental information below the appropriate limit set out in the FOIA fees regulations. Although the fees regulations do not directly apply to EIR, the Commissioner’s view is that the appropriate limit (of £600 for central government and £450 for other public authorities) provides a useful starting point when considering charges under the regulations.

More generally, the ICO are keen to reduce inconsistencies in charging policies in relation to environmental information. In a blog post accompanying the decision, Gill Bull, the ICO’s Director of Freedom of Information states that authorities should avoid routinely charging for environmental information, and is unlikely to be sympathetic when charges are made for information falling beneath the appropriate limit. She links the decision to Parliament’s declaration of a ‘climate change emergency’, pointing out that it is more important than ever for people to be able to play a full and informed part in debate about the environment. This should not be hampered by financial barriers, she argues.

This decision emphasises the important relationship between access to information and the major issues that face society. The ICO will be updating their guidance later in the year to reflect this change in approach.

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.