More freedom of information (FOI) requests are likely to be refused as vexatious, following official guidance issued last week. But the change removes the government’s case for introducing more fundamental and damaging restrictions to the FOI Act, says the Campaign for Freedom of Information. The Campaign is calling on the government to drop the proposals.
In November 2012 the government proposed a series of changes to the Act to make it easier for public authorities to refuse ‘disproportionately burdensome’ requests, particularly from requesters said to be making ‘industrial’ use of the Act.
But the Campaign says the proposed changes are not in fact targeted at people who make excessive use of the Act. They would increase the chance of all requests being blocked, including those of modest scope and of substantial public interest.
Currently, authorities can refuse a request if the cost of finding and extracting information exceeds certain limits. The government wants to also allow the cost of considering whether to release the information to be counted. The Campaign’s director Maurice Frankel said: “any request raising new, complex or contentious issues would be at risk of being refused, simply because of the time needed to consider unfamiliar issues. If FOI staff are inexperienced they will need still more time to deal with complex requests, increasing the chances of a cost refusal. Some authorities might deliberately claim they have to consult more widely than is strictly necessary to ensure that the cost exceeds the limit. Critically, cost refusals take no account of the public interest in disclosure – so many important requests could be refused.”
For example, a request about plans to hold a referendum on leaving the EU might be refused simply because it would take too much time to work out whether disclosure would be in the public interest or not, the Campaign says.
The government is also considering lowering the cost limits themselves, currently £600 for government departments and £450 for other bodies. And it wants to allow unrelated requests to an authority by the same person or group to be refused if their total cost would be too great. The Campaign says this could allow requests from bodies which deal with an authority over a range of issues to be refused, including local newspapers, community organisations and even MPs.
The government also wants to introduce charges for appealing to the tribunal which deals with FOI appeals, which the Campaign says may deter some requesters pursuing well-founded requests and could slow the development of case law.
Since the government’s proposals were published the Upper Tribunal, the top level FOI appeals body, has ruled that requests which are a “disproportionate burden” or “manifestly unjustified” can be refused as vexatious.
Mr Frankel said: “This ruling demolishes the government’s case for its proposals, which it says are necessary to prevent “disproportionately burdensome” requests. The Upper Tribunal has made it clear that such requests can be refused under the Act as it stands.”
The Upper Tribunal ruling is binding on the Information Commissioner (IC) who last week issued new guidance to reflect it. This says indicators of potentially vexatious requests include those which make ‘grossly oppressive’ demands on an authority’s resources but cannot be refused under the cost limit, frequent or overlapping requests from the same individual, requests for relatively trivial information which involve disproportionate effort, requests used to harass the authority, those made solely for the purpose of amusement and persistent ‘fishing expeditions’ – random requests not pursuing a specific issue, but hoping to turn up something of interest by ‘pot luck’.
The guidance says authorities should consider using this provision ‘in any case where they believe the request is disproportionate or unjustified’. The Campaign says this will lead to large numbers of additional requests being refused and will need to be very carefully monitored to prevent its abuse.
Crucially, a request cannot be vexatious if the public interest in the information justifies the expense of providing it – an essential safeguard. Under the government’s proposals the public interest in answering the request would be irrelevant. Requests could be refused even if the case for disclosure was overwhelming.
The Campaign has written to the Justice minister Lord McNally urging the government to drop its proposals. It is also encouraging people to ask their MPs to sign Early Day Motion 80, a form of Parliamentary petition, opposing the proposals. The EDM is sponsored by Conservative MP Sir Richard Shepherd supported by MPs Mark Durkan (SDLP), John Healey (Lab), Julian Huppert (LD), Caroline Lucas (Green) and David Winnick (Lab).
(1) The Information Commissioner’s new guidance on vexatious requests is available at: http://tinyurl.com/vexatiousrequests
(2) The government’s proposals to make it easier for authorities to refuse requests on cost grounds are at: http://tinyurl.com/GovtPLSResponse
(3) The Campaign’s letter to Lord McNally is available here.
(4) EDM 80 can be found at: www.parliament.uk/edm/2013-14/80
Maurice Frankel or Katherine Gundersen 020 7490 3958