In March a group of SCL members from the Privacy and Data Protection Group, led by David Berry and Andrew Sharpe of Charles Russell, compiled a considered response to a Consultation Paper from the Department of Constitutional Affairs on the draft Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2007. The major change proposed by the Government was:
- to include reading time, consideration time and consultation time in the calculation of the appropriate limit (£600) above which requests could be refused on cost grounds; and
- to aggregate requests made by a person or persons apparently acting in concert to each public authority for the purpose of calculating the appropriate limit.
Despite the fact that the Group’s members cover a broad spectrum (privacy rights advocates, advisers to citizens likely to make requests, advisers to public authorities receiving the requests and advisers to private sector contractors whose confidential information is often the subject of requests), the overwhelming view was that the case for reform had not been made:
‘a small percentage of requests for information, usually from persons such as journalists who have learned to make strategic use of the FoIA “right to know”, place a disproportionate burden on public authorities. However, we are disappointed that no analysis of the overall public interest in the application of the FoIA was made by either Frontier Economics or the DCA in its Consultation.
We are reminded of the Prime Minister’s preface to the White Paper, “Your Right to Know – the Government’s Proposals for a Freedom of Information Act” (Cm 3818), in which he said, “The traditional culture of secrecy will only be broken down by giving people in the United Kingdom the legal right to know.” If one of the aims of the FoIA was to break down any traditional culture of secrecy in the public sector in the UK in order to foster the openness which the Chancellor of the Duchy of Lancaster stated in the White Paper “is fundamental to the political health of a modern state”, then it can be argued that the high cost of administering a small number of requests is a necessary price to pay in the public interest to remove any vestiges of a culture of secrecy and lack of openness and accountability that remain within public authorities’.
The response goes on to suggest solutions to the alleged abuses of the system: using fee notices, altering the criteria for refusal to cover only requests that are ‘manifestly unreasonable’ and the use of flat-rate fees for online requests. Fee notices would reduce the possibility of public authorities using the cost exemption as a means of refusing information since the applicant would be offered the option of paying the costs. The response also lays considerable emphasis on the need to ensure that time spent determining whether the costs exemption applies should not be factored into the assessment of overall costs, for example the response states ‘Public authorities should not be incentivised to draw out the Exemptions Consideration Time and so weaken their obligations under FoIA by eating into the appropriate limit. Rather, any attempt to fight the disclosure obligations under FoIA should be entirely at the public authority’s cost and expense’.
Readers inclined to take the cynical line that all such responses are bound to be ignored may be surprised to discover that someone appears to have taken notice. The DCA issued a further paper which concluded:
‘Some of the responses received have commented on the principle of making these changes and other responses have stated they would have welcomed an opportunity to comment on the principle of the changes or have suggested that there may be better ways of tackling those cases which create a disproportionate burden on public authorities. The Government wishes to make clear that it is keen to hear all those views, and it has therefore decided to issue this supplementary paper extending the original consultation.’
Those who wish to comment further, perhaps in support of the SCL proposals, are asked to do so by
