Government rules out introduction of fee-charging for FOI requests

March 1, 2016

The Government has ruled out the introduction of up-front fees for freedom of information (FoI) requests over and above the existing circumstances in which a requestor can be charged for disbursement costs.

In a written ministerial statement Cabinet Office Minister Matt Hancock said the Government agreed with the view of the Independent Commission on Freedom of Information, whose final report has been published today (1 March).

Hancock said: “We appreciate that some public authorities are concerned by the burdens imposed on them by the Act and the associated costs.

“However, the introduction of new fees would lead to a reduction in the ability of requesters, especially the media, to make use of the Act. We believe that transparency can help save taxpayers’ money, by driving out waste and inefficiency.”

The Independent Commission’s report contains 21 recommendations, including a proposal to abolish the public interest test extension to the time limit. This would be replaced with a 20-day time limit extension for requests "where the public authority reasonably believes that it will be impracticable to respond to the request on time because of the complexity or volume of the requested information, or the need to consult third parties who may be affected by the release of the requested information".

The report also said the First-tier Tribunal appeal stage should be removed as it too closely duplicated the full-merits assessment carried out by the Information Commissioner. “This would strengthen the position of the IC as final arbiter of the substance of cases, but (similar to the Scottish system) an appeal to the Upper Tribunal on a point of law would remain.”

The Commission meanwhile proposed that the Information Commissioner should have greater powers when prosecuting offences relating to the destruction of information, and when ensuring that public authorities are meeting their obligations to proactively publish information.

The Independent Commission also gave its provisional view (but this did not amount to a recommendation) that FOIA should be extended to those who are providing public services under contract.

“We suggest this should be done by treating information about the performance of the contract as being held on behalf of the contracting public authority, although we think this should be limited to new contracts only, and only those contracts where the annual value is £5m or greater. We also express our opinion that there is no convincing evidence for the exclusion of universities and higher education institutions from the scope of the Act,” the report said.

The report's summary of the recommendations is as follows:

Recommendation 1: That the government legislates to amend section 10(3) to abolish the public interest test extension to the time limit, and replace it instead with a time limit extension for requests where the public authority reasonably believes that it will be impracticable to respond to the request on time because of the complexity or volume of the requested information, or the need to consult third parties who may be affected by the release of the requested information. This time limit extension will be limited to an additional 20 working days only.
Recommendation 2: That the government legislates to impose a statutory time limit for internal reviews of 20 working days.
Recommendation 3: That the government legislates to make the offence at section 77 of the Act triable either-way.
Recommendation 4: That the government legislates to impose a requirement on all public authorities who are subject to the Act and employ 100 or more full time equivalent employees to publish statistics on their compliance under the Act. The publication of these statistics should be co-ordinated by a central body, such as a department or the IC.
Recommendation 5: That the government legislates to impose a requirement on all public authorities who are subject to the Act and employ 100 or more full time equivalent employees to publish all requests and responses where they provide information to a requestor. This should be done as soon as the information is given out wherever practicable.
Recommendation 6: Public bodies should be required to publish in their annual statement of accounts a breakdown of the benefits in kind and expenses of senior employees by reference to clear categories.
Recommendation 7: The government should give the IC responsibility for monitoring and ensuring public authorities’ compliance with their proactive publication obligations.
Recommendation 8: The government should legislate to replace section 35(1)(a) with an exemption which will protect information which would disclose internal communications that relate to government policy.
Recommendation 9: The government should legislate to expand section 35(1)(b) so that, as well as protecting inter-ministerial communications, it protects any information that relates to collective Cabinet decision-making, and repeal section 36(2)(a).
Recommendation 10: The government should legislate to amend section 35 to make clear that, in making a public interest determination under section 35(1)(a), the public interest in maintaining the exemption is not lessened merely because a decision has been taken in the matter.
Recommendation 11: The government should legislate to amend section 35 to make clear that, in making a public interest determination under section 35, regard shall be had to the particular public interest in the maintenance of the convention of the collective responsibility of Ministers of the Crown, and the need for the free and frank exchange of views or advice for the purposes of deliberation.
Recommendation 12: The government should legislate to amend section 36 to remove the requirement for the reasonable opinion of a qualified person.
Recommendation 13: The government should legislate to put beyond doubt that it has the power to exercise a veto over the release of information under the Act.
Recommendation 14: The government should legislate to make clear that the power to veto is to be exercised where the accountable person takes a different view of the public interest in disclosure. This should include the ability of the accountable person to form their own opinions as to as to all the facts and circumstances of the case, including the nature and extent of any potential benefits, damage and risks arising out of the communication of the information, and of the requirements of the public interest.
Recommendation 15: The government should legislate so that the executive veto is available only to overturn a decision of the IC where the accountable person takes a different view of the public interest in disclosure. Where a veto is exercised, appeal rights would fall away and a challenge to the exercise of the veto would be by way of judicial review to the High Court. The government should consider whether the amended veto should make clear that the fact that the government could choose to appeal instead of issuing a veto will not be a relevant factor in determining the lawfulness of an exercise of the veto. Until legislation can be enacted, the government should only exercise the veto to overturn a decision of the IC.
Recommendation 16: The government should legislate to allow the veto to also be exercised even where the IC upholds a decision of a public authority. This would mean that the right of appeal would fall away and challenge would be instead by way of judicial review.
Recommendation 17: That the government legislates to remove the right of appeal to the First-tier Tribunal against decisions of the IC made in respect of the Act. Where someone remained dissatisfied with the IC’s decision, an appeal would still lie to the Upper Tribunal. The Upper Tribunal appeal is not intended to replicate the full-merits appeal that currently exists before the IC and First-tier Tribunal, but is limited to a point of law.
Recommendation 18: That the government legislates to clarify section 11(1)(a) and (c) of the Act so that it is clear that requestors can request information, or a digest or summary of information, be provided in a hard copy printed form, an electronic form, or orally. Where a requestor specifies a specific electronic document format, that request should be granted if the public authority already holds the information in that format, or if it can readily convert it into that format. Where the information requested is a dataset, the requirements at section 11(1A) will apply. The legislation should make clear that the obligations on public authorities to provide information in a particular format extend no further than this.
Recommendation 19: That the government reviews section 45 of the Act to ensure that the range of issues on which guidance can be offered to public authorities under the Code is adequate. The government should also review and update the Code to take account of the ten years of operation of the Act’s information access scheme.
Recommendation 20: That the government provides guidance, in a revised Code of Practice issued under section 45, encouraging public authorities to use section 14(1) in appropriate cases.
Recommendation 21: That the government reviews whether the amount of funding provided to the IC for delivering his functions under the Act is adequate, taking into account the recommendations in this report and the wider circumstances.

In his written ministerial statement the Cabinet Office Minister gave the Government’s views on some of the other recommendations in addition to fee-charging:

The Cabinet veto: The Government agreed with the Commission’s analysis that Parliament intended the executive to be able to have the final say as to whether information should be released under the Act. "In line with the Commission’s thinking, the government will in future only deploy the veto after an Information Commissioner decision. On the basis that this approach proves effective, we will not bring forward legislation at this stage.”
Updating practice guidance: The Government agreed with the Commission’s recommendations to review the operation of section 45 of the Act to ensure that the range of issues on which guidance can be offered to public authorities under the code of practice is sufficient and up to date. “Public authorities should have sufficient guidance and advice to properly manage information access requests and to continue the government’s mandate of being the most transparent government in the world.” This does not require legislation.
Publication of FoI statistics: It is important that other public authorities should be similarly transparent to the Cabinet Office, which publishes statistics on a quarterly and annual basis on the operation of FOIA within central government. “We know that many other organisations already publish such data, but this does not happen consistently. The publication of such data not only provides accountability to the public, but allows the Information Commissioner to identify and target poorly performing public authorities more effectively. We will therefore issue guidance in the revised section 45 code of practice to set a standard that public authorities with 100 full time equivalent employees or more should publish such information.”
Public interest and risk assessments: “Noting that the Commission did not provide a formal recommendation regarding risk assessments, the Government agrees with the Commission’s analysis that considering the public interest remains the best way to assess whether specific risk assessments should be released.” This would allow the important balance between providing robust protection for sensitive information and transparency to be maintained.
Handling vexatious requests: In its report the Commission recognised the difficulty that genuinely ‘vexatious’ requests could place on public authorities. “We agree with the recommendation of improved guidance, via a revised code of practice, to allow public authorities to use section 14(1) in the rare cases where it is necessary and appropriate. The exercise by citizens of legal rights also brings with it responsibilities – and access to information rights should not be abused to cause distress or a means of harassment. Equally, the ‘vexatious’ designation is not an excuse to save public officials embarrassment from poor decisions or inappropriate spending of taxpayers’ money.” This would not require legislation.
Greater transparency on pay and perks of senior staff: Further steps will be taken to ensure transparency about senior executives’ pay and benefits is delivered across the whole public sector. “The default position should be that such information from all public bodies is published; that the public should not have to resort to making Freedom of Information requests to obtain it, and data protection rules should not be used as an excuse to hide the taxpayer-funded payments to such senior public sector executives. We will now consider what additional steps should be taken to address any gaps in published information, and in particular in relation to expenses and benefits in kind as recommended, including more broadly than at present.”

Hancock said the Government would carefully consider the Commission’s other recommendations.

Responding to the Independent Commission’s report, Information Commissioner Christopher Graham said: “We welcome the Commission's conclusion 'that the Act is generally working well, and that it has been one of a number of measures that have helped to change the culture of the public sector'.

“While it appears that there is much to welcome in the 64-page report, we now need to study the 21 recommendations in detail.

“We welcome the fact that the Commission has adopted some of the ideas put forward by the Information Commissioner in evidence, particularly his call to also consider improvements to the Act - such as clarifying the extension to the time limit, and also the Commission's call for strengthened powers and better resourcing for the ICO.”