Information watchdog pushes back against FoI charges call

Information Commissioner's Office tells the Burns review of Freedom of Information that charges – backed by officials in a recent CSW survey – would have a "deterrent effect" and could create more work for departments

By matt.foster

18 Nov 2015

Introducing flat rate fees for Freedom of Information requests would be a "disproportionate" move that could place more burdens on government departments, the UK's information watchdog has warned, as an independent commission looks again at the transparency law.

Ministers have ordered a review of existing FoI act, with a panel led by former Treasury permanent secretary Lord Burns asked to look at whether the act allows "safe space" for policy discussion and whether it places too much of a burden on public bodies. Campaigners and media organisations have, however, expressed concern about the make-up of the panel and fear that the commission will be used to curb government transparency.

A CSW survey of more than 4,000 civil servants, published earlier this month, found that the majority (50.12%) of officials would back the introduction of charges, with 37% opposed.

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But in his submission to the Burns review of FoI, information commissioner Christopher Graham – who oversees compliance with the act – warned about the extra administrative pressure that charges could put authorities under.

"The commissioner notes that complex or potentially subjective charging and cost mechanisms, for example differentiating between types of request or requester, are more likely to increase the number of internal reviews for public authorities and complaints to the commissioner," Graham's office told the review.

It added: "The commissioner is concerned that a flat fee would be a disproportionate measure because of its deterrent effect on a wide range of requests and requesters. 

"It is worth noting that a flat fee of £10 (the same as for a subject access request under the Data Protection Act) would not enable public authorities to recover costs. 

"It should also be recognised that charging a fee in itself creates an administrative burden, which is one reason why public authorities do not usually do it; the [UCL] Constitution Unit found in 2010 that 62% of authorities they surveyed never quoted a fee for answering a request."

The Information Commissioner's Office also warned against charging requesters for the time it takes staff to deal with requests, arguing that such a move could "create a perverse incentive" and undermine efforts to improve understanding of FoI obligations among public bodies.

"The burden of dealing with FoI requests (ie the time spent on this) is greater if a public authority has poor document and records management systems, FoI procedures that are inefficient or not properly followed, ad hoc FoI decision-making processes, a low staff awareness of FoI obligations and a reluctance to make information available proactively," the submission said.

"To introduce a time-based charge for handling requests reduces the incentive to improve bad practices; it makes the requester pay for the public authority’s shortcomings. Any system that charged for time would need to ensure that good records management was incentivised and bad practices penalised."

Elsewhere in his evidence, Graham acknowledges the "considerable debate" about the pros and cons of FoI since it came into force in 2005, and accepts that FoI compliance costs "can appear to be significant when considered in isolation".

But he says departments should view investment in FoI within a "broader context", adding: "investment in request handling systems should go hand in hand with investment in customer services. 

"Records management underpinning FoIA will assist with other legislative compliance e.g. data protection, [and] equalities legislation."

The Burns review’s call for evidence asked whether “controls" including fees were needed "to reduce the burden of FOI on public authorities". The review will continue taking evidence until November 20, with its final report expected by the end of the year.

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