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.
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
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
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.
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'.
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.'
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'.
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
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.
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.'
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.
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'.
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.
RELATIONSHIP WITH THE ICO
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.
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 www.cfoi.org.uk/pdf/falconerltr.pdf Back
HL Deb, 14 November 2000, col 190 Back
Ev 49, para 5.15 Back
'What's wrong with the co-ordination' Open Government: A Journal
on Freedom of Information Vol 1, Issue 1 Back
Ev 83, para 13 Back
Ev 98, paras 3.3-3.6 Back
Ev 50, paras 5.18-5.20 Back
Qq209 and 213 Back
Ev 86, para 45 Back
Ev 50, para 6.3 Back