Tag Archive for Charging

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.

When can public authorities charge for FOI requests?

FOI Man looks at when a public authority is allowed to charge for FOI requests, and how such charges must be calculated.

Some further education institutions appear to be charging for FOI requests. In one case, the college is routinely charging £75 per request. In another, they are charging £25 per hour. Let’s be clear, this is NOT legitimate.

What can public authorities charge? Well, if they estimate that providing the information will cost more than ‘the acceptable limit’  (currently £600 in central government or £450 for all other authorities),  then they have a choice of either refusing to provide the information (in line with s.12 of the Act) or charging the full estimated cost. In estimating the cost, they can only consider the time and money it would take to:

  • determine if they hold the information;
  • locate the information;
  • retrieve the information; and/or
  • extract the information from a document containing it.

They can’t include redaction or time spent considering exemptions in their estimate of the cost. In estimating the cost, they have to calculate staff time on the basis of £25 an hour – the regulations stipulate this. This figure, of course, appears to be the basis of one of the colleges’ confusion. It’s also the basis of the rule of thumb that public authorities (outside of central government) operate of the ‘time limit’ for FOI being 18 hours (£450/£25=18). (It’s obviously 24 hours in central government – £600/£25=24).

They are allowed to charge  ‘disbursements’ for things like photocopying, paper, CD-ROMs etc. for any request. This right is very rarely exercised in my experience, but may be on the rise in the current climate.

The Environmental Information Regulations (EIR) are subtly different, but in effect, largely the same. Charges can be made, but case law has made clear that this is really only for disbursements again (photocopying, printing, etc). There is no direct  s.12 equivalent allowing refusal on grounds of cost, but often authorities will argue that the exception (the EIR term for an exemption) for requests which are ‘manifestly unreasonable’, can be used to refuse requests which will be expensive to comply with.  DEFRA’s guidance and case law appear to support this.

In summary, public authorities cannot charge a standard fee for FOI or EIR requests – they can only charge for disbursements or for requests which cost more than the ‘acceptable limit’ (£600 for central government; £450 for all other public authorities). At least, that’s the situation at present – it remains to be seen whether the outcome of the Government’s post-legislative review of FOI will be changes to the charging arrangements for requests.

Right Old Pickles – Charging for FOI

Like many with an interest in FOI, I’ve been following the story over the last week of Hampshire County Council and their decision to lobby for a charge to be brought in for FOI requests. Last month I blogged about a similar call from the Metropolitan Police and commented that it was a debate worth having.

HCC claimed that FOI cost them £346,000 during 2009/10, much of which was spent responding to requests from journalists. “Why should taxpayers pay for newspapers to benefit?” asked Councillor Colin Davidovitz.

Last week, the Communities and Local Government Secretary, Eric Pickles, made it quite clear that he disagreed with such proposals. He is quoted as saying “If councillors and council officers are to be held to account, the press and public need access to the information that will enable them to do it… Greater local accountability is essential to accompany the greater powers and freedoms that the new government is giving to local government.”

Despite my previous post on the subject, I remain sceptical about charging for FOI requests. Apart from anything else, the figures bandied around when discussing this subject are notoriously unreliable. Hampshire were quite open about their calculations in reaching the quoted figure (for which they deserve credit), but they don’t really stand up to scrutiny. It appears that it assumes that every request received during 2009/10 cost the maximum £450 to comply with, and then adds an extra sum on top of that. Of course, many requests are relatively easy to answer, and don’t cost anywhere near that.

Another reason for my scepticism is that cost is a very easy way to attack any public service, and in this case you can’t help but feel that inconvenience (political and otherwise) might be a major motivator. Especially as whenever these stories are brought up, it is always journalists who are given as the prime example. I’ve always tended to feel that it is a good thing if journalists use the Act – they are most likely to do something useful with what they are given, and get it out to a wider public.

(Mind you, I sympathise with one of my readers who suggests that journalists should have to publish a log of requests they’ve made that they never write about – it’s very frustrating when you’ve spent a long time preparing material and then it remains unused in a hack’s inbox.  This especially happens of course when the material shows the authority in a good light).

Another reason for being cautious about the figures quoted for the ‘cost’ of FOI is that they rarely take into account the savings that undoubtedly result from FOI. In my experience requests do from time-to-time highlight expenditure that is unnecessary. It’s impossible to know, but I’m sure that the fear of FOI (especially post MP’s expenses) prevents abuse of finances and focusses the minds of those in charge of spending in many situations. We can’t provide hard figures for all of these savings, but I suspect they are significant, and they’re usually completely ignored by those citing ‘the cost of FOI’.

So I find myself on the same side as Mr Pickles on this (not a position I gladly take up, I have to say). That said, I still think there’s a need for an open debate about the resource taken up by FOI and how it can best be balanced against the impending cuts that all public services are facing.

Mr Pickles suggests that councils can cut down on FOI requests by publishing more data. Like many FOI Officers and other public officials, I’m sceptical about this. Many requests are for very specific information that would be unlikely to appear in generic datasets. Experience shows that the more information you publish, the more requests you receive for information drilling down even further. There are even websites now that encourage and facilitate this. So, publishing more data is unlikely to reduce the cost of FOI significantly (though it’s undoubtedly a good thing to do). Followers of my Twitter account (@foimanuk) may also have noticed that I’m rather sceptical about the Government’s ‘Transparency’ agenda (in that it appears to consist of announcements about not-very-much-at-all).

Even the Campaign for FOI is not entirely against charging for FOI requests. Maurice Frankel of CFOI is quoted in Portsmouth’s The News as saying “We have no real objection to straightforward commercial requests carrying a charge.” Mind you, this goes completely against current government policy, which is to encourage the disclosure to and re-use of data by business, so there probably isn’t much scope there for reform.

A straightforward charge for FOI requests is probably too blunt an instrument to use to manage their flow, and is unlikely to be implemented in the current political climate. But there is still a need for everyone with an interest in FOI to debate the options on how we can better do this. Should we charge for certain types of request? Should the fees regulations be adjusted to cover more activities? Politicians developing FOI policy need to consider the impact on public authorities as well as the desire (which most of us share) to deliver greater openness.

Being Human – how FOI Officers find information

It might sound odd, but sometimes FOI Officers have to, let’s say, bend the Act in order to get information out there. I’ll explain that statement later…

People probably don’t give this much thought, but finding information requested under FOI is not as easy as it sounds. My suspicion is that many requesters assume that the FOI Officer just has to enter their question into something akin to Google, and up the information comes. Then we twiddle our thumbs for 19 days before disclosing or refusing, unless we’re feeling particularly difficult, in which case we might decide to extend the deadline.

It’s true that back before January 2005, the Labour Government did tie FOI implementation into plans for e-Government, and there was a lot of pressure initially for all public authorities to adopt electronic document and records management systems (EDRMS). But the association was then quietly forgotten as rumours circulated about the limited success and high cost of the few implementations that did progress.

I’m a sceptic when it comes to IT solutions and their ability to find information. Even if you have a system that allows all electronic data to be searched:

a) it won’t pick up paper records or the contents of people’s notebooks (either physical ones or off-line electronic ones)

b) it will only pick up information containing the terms you search for – which is fine if the request is very specific, but this is rarely the case

c) if it is searching every electronic system in the organisation (what is technically called an “enterprise search”), it may not be clear to the searcher what the context of the information is – is it a draft? is it sensitive information? who should I ask for clearance to disclose?

Of course, it’s possible to overcome all of those shortcomings, but in my experience, they rarely are. There are also all sorts of privacy concerns connected with enterprise searches. I’ve never been given the ability to search all emails for a request, the key reason being that it would allow me to see private emails sent and received by colleagues (which arguably would constitute a breach of several Data Protection principles). So FOI Officers rarely, if at all, are in a position to conduct searches of all the electronic information in their organisation. Let alone the physical records.

We therefore have to rely on our knowledge of the organisation, and on the cooperation of colleagues. When I receive an FOI request, I forward the request on to contacts in the relevant departments. I always remove the details of the requester (that’s a debate for another day) and ask the relevant department(s) to provide the information or let me know if they have any concerns with the information being disclosed. They are asked to let me know if I should be contacting someone else. I am entirely reliant on them in collating the relevant information and providing it to me. With slight variations, I suspect this is the process in every public authority in the land.

It is a very human process. It is therefore, of course, entirely feasible that we will fail to locate all of the information. It might be that the FOI Officer is new to the organisation and doesn’t know where the information is likely to be. It might also be that the departmental contact doesn’t know about the scrawled note in a colleague’s notebook. It might be that someone is on sick leave and unable to answer pleas for information on the issue they are responsible for. I’m sure that nobody in my organisation would ever deliberately deceive me, but I wouldn’t be entirely surprised if that happened in some organisations from time to time. But I suspect that the vast majority of the time, such omissions are entirely accidental.

Here’s an illustration (and this is condensed). On one occasion, I received a request for all emails from a particular senior official relating to a specific subject. I forwarded it to their PA. I was sent about half a dozen emails. I sent a response. The requester complained that they knew there were more. I went back to the PA. I was assured with some irritation that no, they had provided all of the emails. I responded to the requester in like terms (but more politely). The requester calmly pointed out that they had emailed the official and their email wasn’t amongst the emails we had disclosed. Oops. Back to the PA. Silence for a few days. Then “…erm, I’ve found about 70 other emails”.

The point is that much as FOI requires public authorities to disclose ALL of the requested information, there are all sorts of reasons why that might well not happen. Some might scream at their screen at this stage that this is further evidence of the incompetence and possibly corruption of the public sector. But I wonder how easy businesses or journalists would find it if they had to locate all information on a particular subject in their organisation? We make all reasonable efforts, but we’re not perfect.

To come back to the point at the start of this piece. Bearing all this in mind, what happens when we get one of those requests for “all correspondence held by the organisation on xxx”? Strictly, we should probably send out a global email to the whole authority asking every member of staff to search their email and paper files to locate correspondence on the subject. We should unleash an army of staff to read every file, every document, every inbox (and sent folder). But of course, we don’t. We work out who is most likely to hold such correspondence and we email them. If we didn’t, we would have to refuse every single request phrased in that way as it would breach the cost limit immediately.

Fees for FOI requests

Sir Paul Stephenson has proposed charging for FOI requests as part of 25% cuts at the Met. Charging for FOI is always controversial. Currently authorities can charge for ‘disbursements’ such as photocopying (though most tend to waive these charges), and for the cost of fulfilling requests costing more than £450 in most authorities or £600 in central government bodies. In practice, this means that charges are very rarely levied for FOI requests.

When charges were introduced in Ireland in 2005, this led to a huge drop in FOI requests. FOI has clearly become a highly charged political issue in the UK and the Government would have to be very careful about how it introduced such a change. It would fall to the Ministry of Justice, under Ken Clarke, to do this.

I have mixed feelings about charging for requests. The last time the Labour Government made such a proposal, I was firmly against it. My reasoning was that FOI had not at that time bedded in properly – it had only been in place for two years; and it felt like part of a general assault on the Act (David McLean’s FOI Amendment Bill was also going through Parliament at the time).

I’m not so sure this time. As indicated in earlier posts, I’m uneasy about an ever expanding FOI caseload at a time when resources are being cut. I’ve seen large volumes of requests being pushed at hospitals, police forces and universities, all of which have important work to do and are being told to prioritise. I do wonder if a nominal (and discretionary) £10 charge might be a good way to manage the impact of FOI, particularly on those bodies lower down the pecking order. It might put off some of the more trivial requests that critics of FOI are able to roll out to attack it – the notorious toilet roll requests, for instance.

Then again, I do see that this would be a move away from openness, or at least could be interpreted that way. It will be interesting to see whether the Government decides to pursue such a move as part of its proposed reforms of FOI. I’d be interested to hear your views on charging – is it necessary, do you think and why? What form should any new fees regulations take?

Update on FOI fees post, Saturday 16th October

Read an argument against a £10 fee the other day which I found quite persuasive. Maurice Frankel, of the Campaign for FOI, argued that this would stop people being able to make the same request to several authorities, so building up a picture of a particular issue. I can see this point. It’s never simple with FOI is it? Could there be a way to make the same request to several authorities but only charge once – say, through WhatDoTheyKnow or some other portal? Or is it better just not to charge, as now? Still not sure on this and happy to hear suggestions from others…