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The Department of Constitutional Affairs (DCA) has refused a request to make public the data behind a controversial recent report. The DCA is in charge of policy for the Freedom of Information Act (FoI).

The DCA commissioned a report by Frontier Economics which analysed data it had gathered on the cost of processing FOI requests. It is that data which Maurice Frankel of the Campaign for Freedom of Information has requested, and has been refused access to.

The Frontier Economics report found that the processing of FOI requests costs public bodies £35m a year. This partly formed the basis of the government's decision to limit the numbers of requests and change the charging structure relating to requests.

"We asked the DCA for the results of the one week survey they carried out at the beginning of the year to look at the actual time spent by officials in dealing with requests," Frankel told OUT-LAW. "This is the data that was given to Frontier Economics and forms a major part of the data they based their assessments on and we've been refused that data on the basis that it relates to the formulation of government policy and disclosure would not be in the public interest.

"We've now challenged that because there's a very strong steer in the Act itself that factual information should normally be disclosed and what we've asked for is primarily factual information," he said.

The Campaign for Freedom of Information has published the letter from the DCA refusing the request. "I can confirm that the department holds information falling within the scope of all three elements of your request," it says. "However, the information is exempt from disclosure under section 35(1)(a) of the FOI Act, which exempts information that relates to the formulation and development of government policy."

A spokeswoman for the DCA told OUT-LAW that the decision was under internal review. "Factual and statistical information should not be released while the policy decision has not been made, and this decision has not been made yet," said the spokeswoman, referring to the changes to the charging structure relating to the FOI Act.

"The whole debate becomes very difficult if the government is not prepared to release the factual survey which forms the basis of the Frontier Economics report," said Frankel. "We think the DCA has disregarded its own advice to Whitehall on the application of this exemption. It says that there have to be very clear grounds for refusing factual information."

It has also emerged that the costings used to calculate the £35m total included an hourly charge of £300 for ministers' time in its assessments of the true cost of FOI request processing.

"The problem is that we don't know what the basis of that £300 an hour charge is and we don't know how it's been calculated. There is no explanation of how exactly it's been derived or why involving a minister should cost as much as that, it's a vast sum to be attributed to a minister," said Frankel.

Though Frontier did not respond to a request for comment, one of the company's directors, Michael Ridge, told The Guardian that "it is difficult to identify an appropriate benchmark for the cost of ministerial time. However, the opportunity costs of ministerial time could be considered similar to that of senior executives or partners in a city law firm".

"By using figures that appear to be very high and whose basis is not clear one has to question the whole basis for deciding that the whole cost of the FOI Act is £35m," said Frankel.

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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