SCL submitted a response to the Consultation Paper from the Department of Constitutional Affairs on fees for supplying data and the imposition of a limit on the expense of supply, beyond which an exemption applies but there is now an opportunity for further consultation.
The full submission is set out below but it should be noted that the DCA has now opened up the main issues for further consultation - see http://www.dca.gov.uk/consult/dpr2007/sp2806-condoc.pdf.
DRAFT FREEDOM OF INFORMATION AND DATA PROTECTION (APPROPRIATE LIMIT AND FEES) REGULATIONS 2007
SOCIETY FOR COMPUTERS AND LAW – PRIVACY AND DATA PROTECTION INTEREST GROUP
RESPONSE TO THE DEPARTMENT FOR CONSTITUTIONAL AFFAIRS’ CONSULTATION PAPER 28/06 DATED
The Society for Computers and Law (www.scl.org) welcomes this opportunity to respond to the Department for Constitutional Affairs’ (“DCA”) consultation (the “Consultation”) on the draft Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2007 (the “Draft 2007 Regulations”), which will revoke the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (the “2004 Regulations”), and to contribute to the important debate concerning the balance between citizens’ ‘rights to know’ and the burdens placed upon public authorities in meeting those rights. We are grateful to the DCA for its acceptance of our response after the consultation deadline set out in the Consultation.
1.1 The Society for Computers and Law is the major
2 PUBLIC INTEREST IN REFORM
2.1 Our members include traditional privacy rights’ advocates and private practice ‘high street’ lawyers who advise citizens on their rights, including rights to information under the Freedom of Information Act 2000 (“FoIA”) as well as private corporate practice lawyers who advise both public authorities on their obligations under the FoIA and private sector contractors whose commercially sensitive and confidential information is often the subject of freedom of information requests. However, all of our members involved in our own internal consultation on the DCA Consultation felt that the DCA Consultation and the Frontier Economics’’ ‘Independent Review of the impact of the Freedom of Information Act’ had not made a clear case that reform of the 2004 Regulations is required.
2.2 We acknowledge that one of the conclusions of the Frontier Economics’ report, as repeated in the DCA Consultation, is that 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.
2.3 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.
3 CONSULTATION LIST OF QUESTIONS FOR RESPONSE
Our responses to the seven questions set out in the Consultation are set out in the Annex to this response.
4 solutions to disproportionate or unreasonable burdens on public AUTHORITIES of complying with section 1(1)
As set out in our response to the questions in the consultation, our view is that the time spent by a public authority considering the application of an exemption, and any associated public interest test, should not be included in the appropriate limit.
However, we do understand that the Government wishes to avoid the FoIA imposing an undue burden on public authorities and therefore have set out an alternative suggestion below whereby requesters might be subject to additional cost burdens.
4.1 Fee Notices
We consider that if one of the aims of the Draft 2007 Regulations is to address the issue of a small number of requests which are costing public authorities a disproportionate burden, without an evaluation of the merits or public interest in the disclosure of the information requested, then one answer is to deny public authorities the exemption under section 12(1) for costs exceeding the appropriate limit where those costs are subject to a fee notice, which fee notice should be unlimited.
In other words, if public authorities were required to offer the applicant the fulfilment of the request for information for a charge of all the costs which a public authority may take into account under regulation 6 of the Draft 2007 Regulations (excluding time spent considering the exemptions or associated public interest test), where these costs of complying with section 1(1) are in excess of the appropriate limit, then the effect of the Draft 2007 Regulations of denying more citizens’ of their rights by, in effect, increasing the scope of the exemption under section 12(1) of the FoIA, would be ameliorated.
This suggested amendment can easily be achieved without primary legislation by regulations made under sections 9(3), 12(5) and 13(1) and (2) of the FoIA, by amending regulations 8 and 9 of the Draft 2007 Regulations.
4.2 Manifestly Unreasonable Requests
It may be considered that even if all costs above the appropriate limit were recoverable by the public authority that was the subject of a complex and difficult request, the diversion in terms of time spent by key individuals in answering the request, together with the fact that the amount charged may not be a full recovery of the public authority’s costs of complying with section 1(1), may not be in the public interest. If this were the case, we consider that the application of wording similar to that at regulations 12(4)(b) of the Environmental Information Regulations 2004 (manifestly unreasonable) could be used to ensure that a public authority would only be required to give a fee notice where the request was not manifestly unreasonable.
4.3 Flat Rate Fees
We believe that citizens are becoming used to using online information society services (as defined in the Electronic Commerce (EC Directive) Regulations 2002), which typically require the prepayment by debit or credit card of service fees before the provision of the relevant information society service. Although we have no statistics to prove our case, our anecdotal evidence is that applicants are increasingly submitting freedom of information requests electronically. We therefore consider that the cost objections to the introduction of a flat rate fee, being the costs of collection of the fee, may not prove warranted if the supply of information under the FoIA becomes for the large majority of citizens merely another information society service.
Whilst we consider that regulations made under section 9 and 13 of the FoIA should permit public authorities to charge (or, under our proposals, require to offer to charge) fees based upon the public authorities’ estimated costs, we consider that public authorities should account to applicants for their actual costs. Where the public authorities’ actual costs of meeting a request for information are below the estimated costs charged to the applicant, then the applicant should receive with the requested information a refund of the difference between the estimated and actual costs.
5 section 17(5) notices
We note that a public authority can, under the Draft 2007 Regulations, include in the calculation of its costs matters that are not permitted to be included under the 2004 Regulations. The effect of the amendment, therefore, is to increase the scope of the exemption under section 12(1) of the FoIA.
We consider that in every case where an authority wished to exempt itself from an obligation to comply with section 1(1) of the FoIA by application of section 12(1), then regulations made under section 12(5) must state that, in order to benefit from any determination that its costs exceed the appropriate limit, an authority must include in the notice it is required to make pursuant to section 17(5) of the FoIA details of its estimate of costs in relation to each of the matters set out in regulation 6(2) and (4) of the Draft 2007 Regulations, and show how these aggregate costs, after application of the additional costs threshold or additional cost ceiling, exceed the appropriate limit, together with all reasonable assumptions and other information it has used to make the estimates of costs. This is essential if any application of the section 12(1) exemption by a public authority is to be sensibly reviewed by its internal review process and then be subject of an appeal to the Information Commissioner.
In conclusion, our recommendations are that:
6.1 the public interest in permitting difficult and onerous requests for information should be considered and taken into account in any draft regulations amending the 2004 Regulations;
6.2 public authorities should not be permitted to benefit from the exemption under section 12(1) of the FoIA until applicants have been given an opportunity to accept paying the appropriate and reasonable costs of the authorities’ compliance with section 1(1) of the FoIA in respect of their requests, where the costs are above the appropriate limit;
6.3 public authorities should not be permitted to take into account the costs of their consideration of the Part II exemptions or their consultation with third parties. To do so could encourage misuse of these provisions and would cut across the spirit of FoIA;
6.4 the introduction of flat rate fees for (online) freedom of information requests should be held under review;
6.5 public authorities should only be permitted to charge the lower of their actual costs or their estimates costs; and
6.6 public authorities should be required to explain their costs estimates in detail in their section 17(5) notices where the section 12(1) exemption is applied.
Society For Computers and Law (Privacy and Data Protection Interest Group)
For further information about Society’s views on the Freedom of Information Act 2000, the draft Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2007 or other related issues, please contact:
David Berry, Partner, Charles Russell LLP, SCL Privacy and Data Protection Interest Group, Chairman (email: email@example.com; tel: 020 7203 5170), or in his absence, Andrew Sharpe, Associate, Charles Russell LLP (email: firstname.lastname@example.org; tel: 020 7203 5194).
For further information about the Society, please contact:
Ruth Baker, General Manager, Society for Computers and Law,
Annex to SCL Response
Question 1. Are the Regulations prescriptive enough to ensure consistent calculation of the appropriate limit across public authorities or should they contain more detail? For example, taking into account the differing formats and quantity of information requested, should a standard reference (i.e. a ‘ready reckoner’) for how long a page should take to read be included in the Regulations or guidance?
Comments: Whilst we agree that the inclusion of a head of cost for the examining of information under regulation 6(2)(d) is reasonable in policy terms, we are concerned that there should be no double accounting for time spent examining information to determine whether it is relevant for the purposes of regulation 6(2)(a) or regulations 6(2)(e) to (g) – regulations 6(3) should be amended accordingly.
We recognise that a ‘ready reckoner’ for reading time is not practical, given the range of information held by public authorities. However, reading time should only be for readers who could reasonably be expected to be familiar with the type of content being reviewed. In addition, the public authority should state in its section 17(5) notice the basis upon which any reading time is calculated – see paragraph 4.4 of our response.
Question 2. Does the inclusion of thresholds in the regulations provide sufficient flexibility, taking into account the differing complexity of requests received?
Comments: Before considering the thresholds we would like to raise our concerns about including time spent considering the application of an exemption, and any associated public interest test, (“Exemption Consideration Time”) in the appropriate limit.
There are three key reasons for this:
(a) unlike some of the other factors included within the appropriate limit calculation, the Exemption Consideration Time is inherently subjective. Depending on the nature of the public authority in question these issues might be subject to review by a number of people, including external advisers, and the time taken by this process could accumulate rapidly. Moreover, because Exemption Consideration Time is so subjective it would be very difficult for the Information Commissioner to challenge an estimate. We believe that there is a risk that this could result in public authorities misusing the appropriate limit as a means to avoid their obligations under FoIA;
(b) the spirit of the FoIA is to encourage freedom of information. 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;
(c) the cap on the costs of consulting with third parties and other costs at £400 (Central Government) and £300 (other public authorities) does not provide an adequate safeguard. In particular, it appears to us from the Draft 2007 Regulations that there are two elements of costs (i.e. 6(4)(a) and 6(4)(b) are to be considered separately), each is subject to a separate £400/£300 cap and they can be aggregated. Therefore if a difficult request was made it would be possible to estimate that the cost of consulting with third parties would be £400 or more and the other costs would be £400 or more. This would give a total estimated cost from these elements alone of £800 or more which would exceed the appropriate limit and thus allow the public authority to disregard the request.
This aspect of the Draft 2007 Regulations appears to cut across the nature, object and scheme of FoIA. They could act to neuter FoIA to a large extent and therefore frustrate many requests for information that may be of substantial public interest. For example, the requests to Defra for farming subsidies or details of MP’s travel expenses could easily have been turned down on the basis of an estimate that the Exemption Consideration Time would exceed the appropriate limit. This is clearly an area of concern and indicates that, if these changes are to made, it may be more appropriate to use primary legislation to ensure they are fully debated and understood.
Question 3. Are the thresholds the right ones to make sure the balance is struck between allowing public authorities to count these activities but not refuse requests on one of these grounds alone?
Comments: Following on from our answer to Question 2, we do not see any application for the additional costs threshold or the additional cost ceiling.
Question 4. Are the regulations as drafted the best way of extending the aggregation provision?
Comments: The question does not address whether there is any need for aggregation provisions or any amendment from regulation 5 of the 2004 Regulations.
We consider that there are sufficient safeguards under sections 14 or 21 of the FoIA and regulation 5 of the 2004 Regulations to deal with circumstances where aggregation would be appropriate. Guidance may be required to reassure public authorities that requests from more than one applicant, which would if made by just one applicant fall within section 14(2) of the FoIA, can be deemed to be vexatious for the purposes of section 14(1). Current decisions of the Information Commissioner on vexatious requests would suggest that the Information Commissioner would be sympathetic to such guidance.
Even if the aggregation provision were included in the Draft 2007 Regulations, it appears to give public authorities too much discretion in determining whether requests can be aggregated, without an evaluation of where the public interest lies. We would prefer to see aggregation only being permitted where the public interest in aggregation outweighed the public interest in having the un-aggregated requests for information dealt with on their merits. As a minimum, a full explanation of aggregation would have to be included in any section 17(5) notice.
Question 5. Do the factors that need to be taken into account when assessing if it is reasonable need to be explicitly stated in the regulations or can this be dealt with in the guidance?
Comments: We believe that the Draft 2007 Regulations should contain more detail on the factors to be considered. We consider that without regulatory guidance, public authorities will have difficulty assessing where their duty lies in balancing their obligations to comply with the spirit of the FoIA and grant citizens their FoIA rights against their duty to allocate resources appropriately.
Question 6. Are these the right factors?
Comments: No – we consider that aggregating requests from different persons will in most circumstances be impractical or unworkable. If the factors are to be retained, we suggest that as a minimum a public interest test should determine whether the aggregation is appropriate, which test should replace the reasonableness test set out at regulation 7(2)(b)(ii) of the Draft 2007 Regulations. Alternatively, we believe there may be merit in importing into the Draft 2007 Regulations’ factors the ‘manifestly unreasonable’ test set out at 12(4)(b) of the Environmental Information Regulations 2004.
Question 7. What guidance would best help public authorities and the general public apply both the EIRs and the Act effectively under the new proposals?
Comments: Under our proposals set out above, the “manifestly unreasonable” test included in the EIRs could be imported into regulations under the FoIA. However, if this is not the case, then we consider that the principles of current guidance should be maintained, i.e. that where a request for information would fall within an exemption under section 12(1) of the FoIA if it were for information other than environmental information as defined in the EIRs, then a public authority can consider that the exemption at regulation 12(4)(b) of the EIRs applies. Any guidance must state that this use of the appropriate limit defined under the FoIA to an exemption under EIRs must be applied intelligently and emphasise that neither the Information Tribunal nor any court has considered whether applying the appropriate limit test as set out in the 2004 Regulations/Draft 2007 Regulations would be appropriate in judging manifest unreasonableness for the purposes of regulation 12(4)(b) of the EIRs.