Government plans to amend the Freedom of Information Act would make it harder for requesters to obtain answers to new, complex or contentious FOI requests, according to the Campaign for Freedom of Information.
The government is proposing to make it easier for public authorities to refuse time-consuming requests. At the moment, authorities can refuse requests if they estimate that the cost of finding and extracting the information exceeds certain limits. The government wants to allow them to also include the cost of considering the request and deleting exempt information.
The Campaign is particularly concerned at the proposal to allow an authority to include its ‘thinking time’ in the cost calculations. The Campaign’s director Maurice Frankel said: “The longer an authority needs to think about a request, the greater the chance of it being able to refuse to answer on cost grounds. Requests involving unfamiliar, complex or contentious issues all of which require substantial ‘thinking time’ would be likely to be refused under these proposals. This would prevent the Act from dealing with difficult issues or breaking new ground.”
Many kinds of requests are only time consuming because they raise new issues. Once these have been worked through, and particularly once case law is available, decisions may be easy, the Campaign says. The government’s proposals might prevent this happening by permitting such requests to be refused on cost grounds without ever addressing the issues they raise.
The Campaign also says estimates based on thinking time are likely to be subjective. “They may depend on the novelty of the issues to the authority, the FOI officer’s experience and judgment. They may also be easily manipulated. Authorities may deliberately estimate that they would have to consult more officials than is strictly necessary in order to boost the consideration time and increase the chances of being able to refuse the request on cost grounds” said Mr Frankel.
The government is also proposing to allow the cost of unrelated requests made by the same individual or organisation to be aggregated so that all of them can be refused if the total cost exceeds set limits, currently £600 for government departments or £450 for other authorities.
The Campaign says local newspapers, which cover a range of different issues involving the same authority, would be the first casualties of this proposal. “A single request about school exam results might be enough to reach the cost limit. Thereafter the whole newspaper – not just the individual journalist – might be barred from making any further FOI requests to the authority for the next quarter, even on different issues such as child abuse, road safety or library closures” said Mr Frankel.
The government says it wants to address the problem of requests that are time-consuming to deal with but which authorities cannot refuse because the records are easily found. It also wants to address the ‘industrial’ use of the Act by some requesters who make disproportionate use of the Act. The Campaign says if these are the concerns, it should specifically target these situations – not change the rules across the board in ways that will block even modest use of the Act.
The Campaign is also concerned at the government’s suggestion that charges might be made for appealing to the Information Rights Tribunal. It says these would deter requesters with well-founded cases from appealing against decisions that they would be likely to win.
The Campaign welcomed the government’s decision not to introduce charges for FOI requests or to introduce additional exemptions to protect cabinet papers or sensitive policy discussions.
However, the government has rejected proposals to tighten up the time limits for responding to FOI requests which it says would add to the burdens on authorities. It has also refused to require authorities to publish their statistics on compliance with FOI time limits. The Campaign says it is disappointing that even this modest proposal has been rejected.
The government’s proposals, published at the end of November are contained in its response to the Justice select committee’s report into the operation of the Freedom of Information Act.
The Justice committee’s report is available at:
The government’s response to the committee’s report is available at:
The Campaign’s commentary on the government proposals can be found at: https://www.cfoi.org.uk/pdf/foipostlegscrutiny_cfoicommentgovtresp.pdf
Maurice Frankel or Katherine Gundersen 020 7490 3958