What is FOI not intended to do?
2.19 We are clear that an FOI Act is not appropriate for certain purposes and that the legislation should exclude certain limited categories of information held by public authorities.
2.20 First, it is not intended as an aspect of public sector employment law. It is not therefore intended that the Act should cover access to the personnel records of public authorities by their employees. This will also apply to records held for recruitment and appointments. The important distinction here is between the rights of individuals as members of the public to official information, and the different relationship between public sector employees and their employers. Allowing civil servants and other public sector employees a right of access to their personnel files under the FOI Act (as opposed to the Data Protection Act - see Chapter 4) would, among other things, result in public and private sector employees having different statutory rights. We are already acting positively on behalf of employees where disclosure issues are concerned. We are supporting a Private Member's Bill currently before Parliament (the Public Interest Disclosure Bill). This is concerned with protecting the rights of employees in certain specific situations where an unauthorised disclosure is seen by the employee as the only means of bringing to external attention an abuse or problem within an organisation (commonly known as "whistle-blowing").
2.21 Second, FOI should not undermine the investigation, prosecution or prevention of crime, or the bringing of civil or criminal proceedings by public bodies. The investigation and prosecution of crime involve a number of essential requirements. These include the need to avoid prejudicing effective law enforcement, the need to protect witnesses and informers, the need to maintain the independence of the judicial and prosecution processes, and the need to preserve the role of the criminal court as the sole forum for determining guilt. Because of this, the Act will exclude information relating to the investigation and prosecution functions of the police, prosecutors, and other bodies carrying out law enforcement work such as the Department of Social Security or the Immigration Service. The Act will also exclude information relating to the commencement or conduct of civil proceedings.
2.22 Lastly, FOI should not disadvantage the government in litigation. For that reason, the Act will not cover legal advice obtained by the government from any source or any other advice within government which would normally be protected by legal professional privilege.
Gateways to the Act
2.23 We are determined that the Act should be open, fair, straightforward and simple to operate both from the point of view of the applicant and of those who hold the information. The bodies covered by the Act will be expected to act reasonably and helpfully when applying the qualifying "harm tests" described in Chapter 3. Drawing upon overseas experience (see Annex B), time limits for response will be set out in the Act to ensure that applicants do not have to wait an excessive or unreasonable time for responses. Equally, applicants will be encouraged to act reasonably and not abuse or misuse the access rights that the Act provides.
2.24 For Freedom of Information legislation to operate effectively, it is necessary to include at the outset some basic tests of reasonableness for applications for information. We have termed these "Gateway" provisions in our Act. They are intended to give an applicant rapid entry into the FOI process by - on the one hand - encouraging applications which are reasonable and practicable for public authorities to deal with and - on the other hand - encouraging the authority and the applicant to co-operate in this process. This will therefore be the first step in the process of considering an FOI application (see the diagram at Annex C which sets out the whole process, step by step).
2.25 In most cases the "Gateway" process will simply be a matter of ensuring that the request is well-formed and clear; but the tests of reasonableness will also serve as the FOI equivalent of the procedures preventing the law being misused by vexatious litigants. Overseas FOI experience includes examples of individuals making hundreds or even thousands of requests to public authorities. This has persuaded us that some such provisions are necessary but we will ensure that they are carefully drawn so that they do not obstruct genuine requests for information. We have in mind the following considerations but would welcome views on these, and any others thought necessary.
2.26 Applications for information covered by the Act should normally progress to the point where they are assessed against the harm and public interest tests (see Chapter 3 and the diagram at Annex C). Circumstances where public authorities could deal differently with applications would include the following:
- applications for information which has already been published and is still reasonably available. Disclosure could be refused, but information to help identify the existing publication should be given to the applicant;
- applications for information which will be, or is intended to be, published at a future date. The public authority would need to give an indication of the plans for publication;
- applications which are not specific enough to provide the relevant authority with a reasonable indication of what is being sought. The authority would, in the first instance, need to indicate the nature of the problem and invite the applicant to be more specific;
- large-scale "fishing expeditions" or other applications which would result in a disproportionate cost or diversion of the public authority's resources in order to identify collect, or review the required records. The authority would need to give an indication of why the application caused this problem or - if it intended to meet the application but at a significant charge - the likely cost to the applicant of doing so;
- multiple applications from the same source for related material in order to avoid the previous restriction. Public authorities would have flexibility in such cases over how they treated such applications for charging and cost threshold purposes;
- large multiple applications for similar information from different sources which are clearly designed to obstruct or interfere with the public authority's business. Here, authorities would clearly have the option of publishing the information at an early stage in the process, thus avoiding the need for repeated disclosure to individuals.
2.27 In general, the object should be for the public authority to be helpful in dealing with problematic requests so that, if possible, the applicant can obtain the information he or she seeks by one means or another. Where this is not possible, an applicant should normally be able to appeal to the Information Commissioner (see Chapter 5). There may also be scope for the Commissioner to mediate - whether formally under the Act or more informally - where an authority and an applicant have failed to reach agreement on what constitutes a valid application.
Who Pays?
2.28 Freedom of Information carries costs, essentially because it puts public authorities and the information they hold at the service of the people. That is particularly so with an Act that will cover all past as well as current records. This is not a reason for refusing to have FOI. But it is a reason for examining the cost carefully.
2.29 Every major FOI regime in the world contains provisions for charging - requesting payment from the applicant in certain circumstances, depending on the type and amount of information supplied. Some also have provision for flat-rate "entry fees" to use the different services provided under the Act (eg $X to make a request, $Y to take the case to appeal). In the UK, "Data users" - bodies holding information covered by the Data Protection Act - are able to levy a maximum fee of £10 per request, but cannot impose a charge relating to the work done to respond to the request. Under the Code of Practice this position is reversed: fees are not permitted, but charges can be made for work done to deal with requests.
2.30 In considering what fees and charges structure would be most appropriate for FOI, we have the following aims:
- a system which is as fair as possible to applicants based on the assumption that the bulk of the costs of FOI will be borne by public authorities;
- a mechanism which reinforces the "Gateway" tests set out above by deterring frivolous requests and encouraging responsible use of the Act;
- a means of applying some control over flows of 'subject access' requests for personal information between FOI and the new Data Protection Act (this is explained in Chapter 4).
2.31 On this basis, we propose that:
- public authorities covered by the Act should be able to charge a limited access fee per request;
- this should be no more than £10, to keep it in line with the fee for subject access under Data Protection;
- where the request is for an individual's own personal information, the authority holding the information can charge a flat fee up to a maximum of £10;
- no fees will be charged for access to review and appeals procedures. This would too easily encourage an irresponsible attitude from those dealing with the request in the first instance;
- complaints about misuse of fees may be made to the Information Commissioner.
2.32 Public authorities will be able to set charging schemes within parameters laid down either in the Act itself or (more probably) an Order made under it. These parameters would require that charging schemes:
- exclude any power to make a profit, ensuring that charges reflect only "reasonable" costs;
- should not apply to information which a public authority is required, under the FOI Act itself, to make publicly available;
- should be structured to fall primarily on the limited number of applications which involve significant additional work and considerable costs, rather than straight forward applications which, for public authorities, should be part and parcel of normal interaction with the public;
- must provide early notification of any prospective charge to applicants, to enable them to choose whether to proceed with their applications (this may be particularly important where work involving reviewing of documents for sensitive content is likely to reduce the ultimate benefit to the enquirer).
2.33 A common concern with uniform fee and charging systems is that they tend to penalise the individual applicant in search of a limited range of information, as opposed to a private company which may be systematically using FOI to augment its commercial data-base. The Government would therefore welcome views on (a) the desirability and (b) the viability of a two-tier charging approach designed to impose higher charges on commercial and other corporate users of the Act.
2.34 As with fees, complaints about charges will be appealable to the Information Commissioner. The Commissioner would also be able to determine whether an authority's general fee and charging structure conformed with the provisions of the Act.
Services for which the government charges
2.35 The government has for many years off-set the costs of some of its operations through charging commercial rates for certain tradeable information-based services (for example land registration data supplied by HM Land Registry). The total income from charging for these information services (including direct sales income, licensing revenue and income from data supply) amounted to some £180 million in 1996-97.
2.36 This charging regime is underpinned by Crown copyright which has been the subject of a review launched by the previous Government. The results of that review are being published shortly as a Green Paper which will invite comments on proposals to simplify the application of Crown copyright (eg more standardised and fast-track licences) and to liberalise it (eg non-enforcement for declared classes of material, such as unpublished public records, Acts of Parliament and Statutory Instruments).
2.37 We want to protect the integrity and status of government material and to secure the revenue which Departments obtain for providing high-quality services for which the customer is willing to pay a price. At the same time, we want to provide the public and the information industry with easier and quicker access to the general run of material produced and held by government. We shall consult on options for striking this balance in the Green Paper on Crown copyright.
2.38 We will take account of comments on the Green Paper in drafting the FOI Bill, the charging provisions of which will be drafted to exclude tradeable government information.
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