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FOI restrictions unnecessary, Info Commissioner says

Existing rules can do the job if used properly

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The government would not need to limit the scope of the Freedom of Information (FOI) Act if public authorities used existing rules properly, the Information Commissioner's Office (ICO) has said (pdf). The ICO is opposing the government's changes.

The gvernment 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 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 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 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 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 openness 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.

Copyright © 2007, OUT-LAW.com

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

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