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Ministers are poised to break a promise made to parliament that they would not curb freedom of information by changing arrangements for charges.
The government has admitted that it is “minded” to change the rules to make it easier for public bodies to refuse requests under the freedom of information act (FOIA) because they would be too costly.
Lord Falconer, constitutional affairs secretary, to-day released the government’s response to a report published last June by MPs who said that they “see no need to change the fees regulations.”
In the response, the department for constitutional affairs (DCA), which oversees the UK FOIA, says that the government is considering allowing public bodies to include towards the cost of responding to a FOIA request the time officials spend reading documents, as well as consulting on, and considering, their release.
Under current rules, a central government depart-ment can refuse a request if the cost to it for complying exceeds £600, or £450 for other public bodies, based on charging £25 per hour for an official’s time. In estimating the cost, public bodies can include staff hours spent locating and retrieving the relevant information, but not the time they spend reviewing it.
The government is also considering allowing each public body to “aggregate” non-similar requests from a single party, such as a newspaper, to decide whether together they exceed the maximum limit. They can currently only aggregate similar requests from, or thought to be from, a single party.
The response confirms predictions by the FOIA Centre of the changes to the charging structure favoured by ministers.
A leaked confidential cabinet paper by Falconer last July proposed that charges should be set to deter “the most difficult requests”.
In the DCA’s response today to last June’s report by MPs on the constitutional affairs committee, the government says that it is “minded” 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.”
It is also minded to “aggregate requests made by any legal person, or persons apparently acting in concert, to each public authority (eg government department) for the purposes of calculating the appropriate limit.”
However, the government is “not minded” to allow public bodies to charge a flat fee for all requests, “although this could not be ruled out permanently”, or to reduce the cost threshold for central government departments to £400 and for other public bodies to £300.
It added: “The government will take stock of the responses to this position before bringing forward secondary legislation.”
In March, the DCA promised the constitutional affairs committee that there was no plan to increase FOIA charges in order to curb freedom of information. Despite that promise, it is proposing changes to the charging structure that will have precisely this effect.
The DCA also today published an “independent review” examining the cost to government of FOIA and considering options for changing the public bodies’ charging structure. The review estimated that including the time spent reviewing documents in calculating costs to public bodies would eliminate just under 8,000 out of 121,000 FOIA requests a year and save £9.7 million or around one quarter of the annual FOIA bill to government.
And the change on aggregating non-similar re-quests on its own would cut an estimated 12,440 FOIA requests a year and save £2.1 million.
The two changes together would reduce annual FOIA requests by an estimated 14,000 and save around £10.8 million.
These estimates assume an increase to the hourly staff charge from £25 to £34 for central government departments and to £26 for other public bodies. The review suggests that public bodies should calculate reading costs at between £1 and £2 per page.
However, the estimates take no account of the inevitable resultant increase in requests for public bodies to review refusals, complaints to the information commissioner, who regulates FOIA in the UK, and, potentially, subsequent appeals. Each of these, the review notes, is far more expensive to government than responding to initial requests.
The review said: “The most expensive stage of work for the average central government request is the time spent consulting ministers or board-level officials.” It reveals that nearly one in five FOIA requests is considered by ministers or board officials.
It continues: “Journalists make up a significant proportion of the serial requestors identified. Requests from journalists tend to be more complex and consequently more expensive. They account for around 10% of initial FOIA requests made to central government and 20% of the costs of officials’ time in dealing with the requests.”
The review suggests that the media could be especially hard hit by the move to aggregate requests from one party. The BBC was said to have made the most requests, roughly estimated at between 750 and 2000 per year, costing the government up to £1m, with The Guardian making between 500 and 700 requests per year, costing up to £350,000.
Last July’s leaked cabinet paper said that Falconer was planning to commission a cost-benefit analysis to give a “solid evidence base” to make changes. He said in the paper: “We will be able to argue that our commitment to freedom of information remains unchanged… but public access rights must be balanced against other demands on public resources.”
FOIA Centre commentary
The government is focussing its energy on measures to weaken FOIA in the UK. This will come as no surprise to FOIA Centre clients.
While the DCA has indicated that the government favours restricting disclosures in response to FOIA requests, it has come up with no comparable proposals to make FOIA work more effectively.
The government claims that the measures it is “minded” to adopt will save it nearly £11 million. The public would be well advised to note past pronouncements by the government on freedom of information and appreciate that saving money is not the government’s motivation for its proposals. It wants to undermine the extent to which FOIA can hold it to account.
The claimed “solid evidence base” for the changes evaporates on close examination because it fails to evaluate the rise in cost to government that will result in an inevitably higher level of costly appeals.
We have been advising clients to have us file whatever FOIA requests they think they might want forthwith in anticipation that “freedom of information” will be weakened in the near future.
We would suggest to anyone thinking of filing FOIA requests, to do likewise.
However, nothing has changed yet. We must wait to see how FOIA will actually be changed. The DCA has not made definite proposals to introduce secondary legislation to change FOIA, although its response to the report by the constitutional affairs committee has confirmed our predictions of the direction ministers are heading on freedom of information.
Many critics of the government’s supposed supp-ort for freedom of information allowed themselves to become obsessed with the fear of public bodies charging flat fees for all FOIA requests. We warned clients that the government was likely to introduce other measures that would be more subtle but even more damaging to freedom of information in practice. In particular, we warned that the govern-ment was likely to curb requests for sensitive and potentially politically embarrassing information, and we have learnt that ministers are often consulted about how to respond to FOIA requests, which increases the cost of replying to them.
On this occasion, we take no pleasure in being proved right.
And while the DCA is keen on measures to curb freedom of information, it shows no enthusiasm in its response to boost it by addressing serious problems over delays, the biggest weakness in FOIA in practice.
The report last June by the constitutional affairs committee highlighted problems of delays at each stage of the processing of FOIA requests, from replying to them, through reviewing refusals to disclose, as well as the investigating by the information commissioner of complaints by requestors.
The failure by the information commissioner to regulate FOIA properly has proved to be one of the biggest problems with freedom of information in the UK. As the FOIA Centre has previously reported, an enormous backlog of complaints about refusals to disclose has built up at the information commissioner’s office.
The information commissioner, Richard Thomas, told the committee in March that he was waiting to hear from the DCA on whether he was successful in his bid for an extra £1.13 million to clear the backlog of complaints.
In April, the DCA agreed to £550,000 extra funding.
The constitutional affairs committee said that the information commissioner would publish a progress report in September 2006.
But, mid-way through October, even that is overdue. As with many complaints we have lodged on behalf of clients with the information commissioner, we are still waiting.
The sum effect threatens to make the Labour government’s much-vaunted freedom of information act less effective at holding public bodies to account than the non-statutory predecessor, the code of practice on access to government information, introduced by the previous Conservative administration.