Select Committee on Constitutional Affairs Seventh Report

6  The role of the DCA

77. The DCA was responsible for the implementation of FOI across the public sector and has retained responsibility for providing leadership and guidance to central government. It publishes FOI guidance for central government which it states 'may be of use for other public authorities and of interest to the public' and collates statistics and publishes quarterly reports relating to central government compliance with FOI. Under the Act, the Secretary of State is required to issue codes of practice providing good practice guidance to public authorities on handling requests and on records management. The codes themselves do not have statutory force but enforcement action can be taken by the Information Commissioner.

Guidance and Compliance


78. It is clear from the evidence we have received from requesters and authorities and from the Commissioner's decision notices that there are many cases where public authorities are not meeting the 20 day response deadline. We accept that many of those cases may have occurred in the early stages of implementation but it is essential that the reasons for these delays are identified and that appropriate support is provided to enable authorities to improve. The high number of procedural non-compliance cases is increasing the pressure on the Commissioner's already limited resources and he cannot deal effectively with the problem only by addressing individual cases of non-compliance.

79. The 20 day response deadline is a statutory requirement and not merely a target. The DCA, together with the Information Commissioner, must work to improve compliance with the deadline and raise standards so that authorities consistently provide a more timely response to requesters.


80. We found that authorities are frequently taking extra time to consider the public interest test. Whilst this is permitted within the existing code of practice, it is not consistent with the original commitments made by the Government. The first edition of the code, published in November 2002, included a statement that public authorities should aim to make all decisions within 20 days, including requests where the public interest applied:

This statement was withdrawn (without consultation) from the final version of the code which was submitted to Parliament in November 2004, just prior to the implementation of the Act. Maurice Frankel pointed out at that time, in a letter to the Lord Chancellor, that this issue had been debated in Parliament during the passage of the FOI Act.[67] Concern about unnecessary delays had prompted the Home Office minister Lord Bassam of Brighton to give the following commitment:

    The Government remain of the view that wherever possible all information should be disclosed within a 20-day time period. That too - I give a commitment - will be reflected in the Secretary of State's code.[68]

81. The current version of the code offers no suggestion that authorities should attempt to deal with public interest considerations within 20 days nor does it offer guidance as to how much extra time might be reasonable. In practice, this means that there is no statutory response time limit whenever an authority is considering one of the 17 exemptions which requires consideration of the public interest. This contrasts with other regimes such as the EIR and the FOI (Scotland) Act, under which there is no option to make such indefinite extensions.

82. Routine time extensions of up to several months undermine the spirit of the 20 day response deadline in the Act and reduce the benefits for requesters. We recommend that the DCA guidance be updated to reflect the Information Commissioner's guideline that two months should normally be sufficient to reach a decision about the public interest and the Minister's undertaking that wherever possible all information should be disclosed within 20 days. We recommend that the DCA publish data to show how often and by how much this guideline is exceeded by government departments.


83. Best practice guidance for internal reviews (also called internal complaints procedures) is provided in the section 45 code of practice, which states that 'Authorities should set their own target times for dealing with complaints; these should be reasonable, and subject to regular review. Each public authority should publish its target times for determining complaints and information as to how successful it is with meeting those targets.'[69]

84. We note, however that the DCA does not include any of this information in its quarterly FOI statistics reports. The DCA report for October to December 2005 states that:

    it can quite properly take several months from the initial receipt of an information request to the completion of any resulting review or appeal work in some cases. It would therefore not be practical to collect data on internal reviews and appeals for discrete quarterly time periods.[70]

Although the DCA states that internal reviews can sometimes take several months, it is not clear why this should be necessary, given that other regimes such as the EIR and the FOI (Scotland) Act set a fixed limit for the duration of such reviews. The DCA report provided a count of the total number of internal reviews carried out by Departments of State and other monitored bodies, and subtotals showing the outcomes of those reviews, but no information about the length of time taken to complete them.

85. We recommend that the target times and actual time taken for internal reviews by government departments be included in the DCA quarterly published statistics.

Clearing house

86. In 2004, the DCA established a central clearing house as an 'expert advice centre to which cases can be referred by central government departments for further assistance when assessing the duty to release or withhold information'. The DCA told us that the clearing house had provided advice on over 3,100 cases in 2005, which represents about 10% of the requests made to central government.[71]

87. The experience in Canada has been that whilst co-ordination can improve the quality and consistency of responses, it can also contribute to delays. Professor Alasdair Roberts commented:

    In the case of FOI, co-ordination runs a risk of aggravating two serious problems. The first is delay…there is a real danger that co-ordination procedures will consume large amounts of time, resulting in a failure to respond to requests within statutory time limits…This has proved to be the case in Canada, which adopted its FOI law .. in 1982. The second problem may be the abuse of co-ordination procedures for political purposes. Routines that are set up for perfectly legitimate reasons - to advise on FOI policy in difficult cases - could soon be bent to serve illegitimate purposes… an excessive preoccupation with damage control and 'spin' can…lead once again to unjustified delay in processing FOI requests.[72]

88. Given that there are already problems with delays, we are concerned that this should not be exacerbated by further delays caused by central co-ordination. There are indications that sometimes it is. The BBC stated that:

    On occasions FOI officers in government departments have complained informally to BBC journalists that referring requests to the DCA's central clearing house has caused substantial delays (for which the department itself is then blamed), and in some cases the clearing house has stopped them from releasing information which they themselves would be happy to disclose.[73]

Maurice Frankel agreed:

    I made a request last year for the internal reviews carried out by government departments, for a sample of them, and the correspondence that they had had with the applicants. Nothing private; simply the material that was in the applicants' hands, and I said that I would have that anonymously, without the names. I spoke to the clearing house informally and told them what I was doing, and asked them if it caused them any problem. They said no. Three or four weeks later I started getting my requests refused and discovered that the clearing house had advised departments to refuse to release their internal reviews to me, on the grounds that the information was not held in the form requested. So they were not even using a particular exemption.[74]

89. There is no evidence either to support the allegations that the clearing house causes delays and blocks information requests, or to refute those allegations. This is primarily because the clearing house has not provided information about its activities, even in response to specific FOI requests. Professor Alasdair Roberts told us that he had made an FOI request to the clearing house for information about cases referred to it, but that his request had been refused on the grounds that disclosure of any such information could prejudice the effective conduct of public affairs. He pointed out that Canadian and American practice is to fulfil statutory obligations by releasing data in response to requests under the legislation and queried how the clearing house could properly consider that such statistical data was exempt from disclosure:

    The claim that the release of such data would prejudice public affairs is also ridiculous on its face. How for example would the release of data showing the length of time required for handling of requests by the DCA clearing house prejudice pubic affairs? It would be more accurate to say that withholding of such information allows DCA and the Cabinet Office to escape accountability regarding the operation of their central clearance procedures…DCA's practice is also inconsistent with the practice of other countries.[75]

90. The DCA anticipated these points, and countered them in its written evidence:

    There have been reports in the media that the Clearing House blocks information requests. The Clearing House does not do so: its function is to ensure that there is proper and consistent application of the Act across central government…The Clearing House is unable to release lists of requests that have been referred as this may in itself disclose exempt information. For example, it might be obvious that a particular case could only have been referred because it has security implications on the basis that it clearly does not meet any of the other triggers.[76]

Baroness Ashton told us that FOI requests for information had been refused by the clearing house in order to provide it with 'space to talk to departments' and because the statistics alone would be meaningless without contextual information. She said that some information about the clearing house would appear in due course on the DCA's website and in the annual report, but information about the clearing house published in the 2006 FOI annual report merely showed the number of requests referred by each government department.[77] We do not consider that these explanations are consistent with the exemptions defined in the Act. This is an unacceptable position for the government department in charge of promoting FOI compliance.

91. The clearing house must comply fully with the letter and the spirit of the FOI Act, be openly accountable for its work and respond to any individual requests for information which it receives in full accordance with the Act.

92. We recommend that the clearing house publish quarterly statistics about its case handling so as to provide clear information about its role.


93. Section 12 of the FOI Act allows public authorities to refuse to answer requests for information if the cost of complying would exceed the 'appropriate limit' prescribed in the fees regulations. The regulations set out which costs may be taken into account when public authorities are estimating whether the appropriate limit has been exceeded. Under the current regulations, the costs are limited to those reasonably incurred in determining whether it holds the information requested and in locating, retrieving and extracting the information.

94. An authority may not take into account any costs other than those set out in the regulations. Specifically, it may not include the time taken to consider whether the information requested should be withheld under an exemption and any time taken to provide advice and assistance.

95. The Lord Chancellor told the Committee that the DCA was conducting an internal review of the FOI fees regime in order to establish whether there was a fair balance between providing information as freely as possible and the time taken by public authorities to find the information.[78] He said that one option being considered was to include within the chargeable limits the time taken to read files to assess which exemptions might apply.

96. When we asked Baroness Ashton to elaborate on why this review was considered necessary, she told us that staff were 'spending huge amounts of time simply finding files before we even get to the point of reading them' and that staff spent 'weeks and months trying to find all of the information that is relevant'.[79]

97. We would be concerned if there were cases where public authorities were spending weeks finding information. Since authorities may already include this time within their calculations of chargeable limits, we do not consider that it would justify a review of the fees regulations, but it would demonstrate a serious shortcoming in some public authorities' records management systems.

98. We note that the current fees regulations encourage public authorities to discuss wide-ranging requests with applicants in order to narrow them down to more manageable amounts of information. The regulations also state that if, after providing advice and assistance, the request is still over the appropriate limit the authority can decide not to provide the information, to answer and charge any permitted fee or to answer without charging. There are already therefore, measures available to help authorities narrow down the information actually required.

99. Baroness Ashton suggested that public authorities had encountered difficulties dealing with 'vexatious' or 'frivolous' requests and that public money was being wasted on providing trivial information.[80] However, the Commissioner told us that he was 'very surprised' that government departments were not making more extensive use of the existing provisions in the Act for vexatious or repeated requests.[81]

100. We recommend that problems with 'frivolous' requests should be dealt with through the existing provisions in the Act. We do not consider that this is an appropriate reason for reviewing the fees regulations.

101. The Information Commissioner told us that he believed that the existing fees regime was working well and that it had 'all the advantages of being simple, clear and straightforward and not being a deterrent'.[82] Both requesters and public authorities agreed that changes were not desirable at this stage. Maurice Frankel said that 'coming at this early stage in the life of the legislation, it would be a very regrettable step to take…I think you will probably find that half of all the requests that are now being answered will be refused on cost grounds.'[83] The BBC stated that 'we believe that it it is too early to amend the legislation in such a fundamental way without first encouraging the use of the other tools that are available to public authorities'.[84]

102. Steve Wood suggested that it would be helpful to see more detailed evidence and analysis of the types of requests which the DCA considers are causing problems and that there should be an open consultation process before making any amendments to the regulations.[85] We note that the DCA states that the information from its internal review will 'provide a firm evidence base' to inform any changes to the charging regime.[86] We are pleased that Baroness Ashton agreed that an open consultation was necessary: 'If we decide that we want to do something quite different around the fees regime, I think we have to do a public consultation in any event.'[87]

103. It would be highly regrettable if the effect of any new fees regulations was to reduce the benefits of FOI, particularly since we have the opportunity to learn from overseas experience. The Irish FOI Act came into effect in 1998. Amendments made in 2003 included the introduction of a range of fees. In her Annual Report 2004, the Irish Information Commissioner reported that following the introduction of fees, requests for non-personal information declined by 75%. She said that the decline in use of the Act had gone far beyond what the Government had intended when it decided to introduce fees, and called for a review of the scale and structure of the charges.[88] The Information Commissioner told us that he was 'concerned about the Irish experience, where the fees were increased, and that had (had) a very obvious chilling effect on the uses to which the Act was being put'.[89]

104. We see no need to change the fees regulations. There appears to be a lack of clarity and some under-use of the existing provisions. We recommend that the DCA publish the results of its internal fees review when it is concluded and that it conducts a public consultation before deciding on any change.


105. The DCA determines the level of funding available to the Information Commissioner's Office. We were told by both the Commissioner and the DCA that the 2006/07 ICO funding was not agreed until after the beginning of the financial year, in the middle of April 2006. This has restricted the ability of the Commissioner to plan effectively for the year ahead, and reduces the time during which he can make use of those resources. The amount of funding was less than that requested, and the Commissioner had earlier expressed doubts about his capacity to maintain quality and keep guidance up-to-date as well as clearing the backlog of cases within these resources.

106. The Commissioner told us that he was concerned about the salary levels he was able to pay to ICO staff.[90] He said that he had recently commissioned a full review of all staff salaries, and indicated that the salary levels of equivalent staff of the Scottish Commissioner were higher than he was able to pay since his ability to adjust salaries was restricted by Treasury policy. The UK model, where funding of the ICO is provided by the government department responsible for FOI promotion and compliance, is unusual. Since the level of funding for the ICO can have a direct impact on its capability to enforce compliance, there is a potential for conflicts of interest. We note that in other comparable jurisdictions such as Canada, New Zealand and Scotland, the ICO is funded directly by Parliament.

107. We are not convinced that the relationship between the DCA and the ICO is working as effectively as it might. We are concerned that resource restrictions and staff salary constraints could limit the Commissioner's performance as an independent regulator and recommend that other reporting arrangements be considered if the recovery plan does not achieve its stated objectives.

108. We see considerable merit in the Information Commissioner becoming directly responsible to, and funded by, Parliament, and recommend that such a change be considered when an opportunity arises to amend the legislation.

67 Back

68   HL Deb, 14 November 2000, col 190 Back

69 Back

70  Back

71   Ev 49, para 5.15 Back

72   'What's wrong with the co-ordination' Open Government: A Journal on Freedom of Information Vol 1, Issue 1  Back

73   Ev 83, para 13 Back

74   Q118 Back

75   Ev 98, paras 3.3-3.6 Back

76   Ev 50, paras 5.18-5.20 Back

77   Q182 Back

78   Qq191-194 Back

79   Qq209 and 213 Back

80   Q217  Back

81   Q99 Back

82   Qq99-102 Back

83   Q119 Back

84   Ev 86, para 45 Back

85   Q119 Back

86   Ev 50, para 6.3 Back

87   Q210 Back

88  Back

89   Q99 Back

90   Q17 Back

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