The Government wants to limit the scope and number of FOI
enquiries by changing the cost structure currently in place. In
response to a consultation process the ICO said that the
Government's stated aims could be achieved under existing rules and
that the proposed changes would make the operation of the Act more
difficult.
The response was lodged in February but has only just been
published. Since that time the Government has issued a further
consultation in a move widely seen as backtracking on some of its
more controversial proposals.
The cost of FOI requests is monitored and any that exceed a
limit of £600 for Whitehall and £450 for other public bodies can be
denied. Public servants' time is charged at £25 per hour, but only
for certain activities related to the request.
The Government has proposed counting more activities towards the
charging threshold and lowering the threshold itself, which would
lead to the refusal of many requests. The moves have been opposed
by campaigners and media groups who do not want to see a greater
number of requests refused.
The Government says that its plans are designed to cut down on
the excessive costs built up by a small number of requesters,
thought to include a high proportion of journalists. They do not
include, though, a proposal to allow media organisations to pay for
costs above the threshold. Such requests can be refused
outright.
The ICO said in its submission that problem requesters can be
blocked without any change in the rules. "A more robust application
of section 14 – exclusion of vexatious requests – would, to a very
significant extent, address the mischief at which the new cost
proposals purport to be directed," it said.
Another controversial measure proposed by the Government is a
plan to draw together all the requests from one organisation every
three months so that an entire organisation such as the BBC would
have to operate under a single £450 or £600 threshold.
The ICO opposed this suggestion both on the practical grounds
that it would be difficult to implement and on the principled
grounds that it did not take account of the FOI Act's primary
purpose, which was the release of information.
"The ICO has grave doubts about the extent to which the
aggregation of nonsimilar requests would be workable in practice,
particularly if determined applicants took steps to circumvent the
new provisions," it said. "The aggregation proposals are not
tempered by any duty to consider the public interest in disclosing
the information requested."
The ICO also said that it would likely be inundated with appeals
and actions against public authorities should the rules change and
even more ambiguous calculations, such as reading time or
consideration time, be made factors in the refusal of a
request.
"The process of estimating the time which might be spent on the
various activities which can be included when calculating whether
the cost limit has been reached is thus uncertain, subjective and
open to exaggeration, if not abuse," said the ICO's submission.
"This makes it all the more likely that there will be further
challenge when the Regulations are invoked to resist a
request."
The Government recently launched a supplementary consultation on
how it could better balance open-ness and cost effectiveness. That
consultation, seen by some as showing a willingness to back down on
the action on the FOI Act, will close in June.
