Freedom of Information news, Issue 03

  1. Government sets FOI access fees
  2. Organisations warned over delays to access requests
  3. Friends of the Earth help the public with FOI requests
  4. Iraq war makes MoD top target for FOI requests
  5. Schools sluggish over FOI compliance
  6. National Archives publishes FOI guidance on deposited public records

1. Government sets FOI access fees

The government has warned public authorities that they are not allowed to charge more than £25 per hour when answering FOI requests. The £25 per hour limit applies from 1st January 2005, and relates to the calculation of staff costs involved in replying to requests. This hourly rate must not be exceeded regardless of what the actual costs might be.

Although most requests are likely to be dealt with free of charge, the government has taken these steps to ensure that a model exists to calculate costs. The first step is to calculate staff costs at £25 per hour. If costs exceed the appropriate limit, and the public authority decides to respond, it can charge £30 per hour for its work. The appropriate limits are £600 for central government and Parliament, and £450 for other public authorities. In certain situations, the costs of answering more than one request can be added together in order to estimate whether the appropriate limit would be exceeded.

The Department for Constitutional Affairs (DCA), which published its fees guidance in December last year, advises that organisations are only allowed to include costs incurred in:

  • Finding out whether the authority holds the information requested
  • Locating the information or documents containing the information
  • Retrieving such information or documents, and
  • Extracting the information from the document containing it.

According to the DCA, legal costs incurred in determining whether the public authority can rely on one of the exemptions may not be included. Also, public authorities may not take into account the expected costs of the time taken to calculate a fee.

Complying with requests that cost less than the appropriate limit should typically consist of photocopying and postage. There will be no charge for the staff time involved. No VAT should be added to the fees, unless an authority was asked for information that was available from another source.

The government has encouraged public authorities to waive any fees of less than £10. A DCA source said that local authorities have raised the issue of FOI being an extra burden, and the government is in discussion with them as to whether local authorities should receive financial assistance to cover compliance costs.

The DCA has advised public authorities to develop and publish fees policies in order to have a consistent approach. A spokesman for the DCA said: “The information should be as detailed as possible. People have a right to know what the fees structure is for a particular organisation. So far, it is impossible to say what percentage of the requests will be dealt with free of charge, but we will be monitoring the situation.”

Ministers will review the Fees Regulations in 8-12 months time.

Click here fee guidance on the Fees Regulations.

2. Organisations warned over delays to access requests

The Information Commissioner, Richard Thomas, has indicated that he expects most FOI requests to be dealt with within the twenty working day deadline. In a statement released earlier this month, Thomas welcomed the new public access rights, but warned organisations that he expects them to deliver. “I will not be able to be sympathetic to bodies that have not made good use of the four year lead-in time. Excuses, such as lack of time or poor record management systems, will not wash. I anticipate that more and more public bodies will – wherever possible – make official and environmental information routinely available rather than wait to be asked for it,” Thomas said.

Schools are exempt from the 20-day rule if a FOI request has been received during school holidays. Additionally, the time limit does not apply to requests for confidential information where public authorities may rely on “the public interest test” - eg. deciding whether the public interest in releasing the information would outweigh the benefits of withholding the information.

Despite the long run-up, public authorities have been criticised for not being fully prepared for the Act. A report, published by the Constitutional Affairs Select Committee in December 2004, revealed that while good progress appears to have been made in Whitehall departments, elsewhere the state of readiness is less encouraging. The failure of the Department for Constitutional Affairs (DCA) to provide strategic control, leadership or early enough guidance to public bodies on the technical aspects of implementation is partly to blame for the current situation, stated the report.

The Information Commissioner has published guidance to help public bodies comply with the new legislation. To date, 27 separate documents have been published.

3. Friends of the Earth help the public with FOI requests

Friends of the Earth launched in January an online facility to help individuals write FOI access requests. The request generator allows individuals to ask for information by e-mail, telephone or fax, and gives tips and guidance on the way. Hosted by a major campaigning organisation, the generator may become popular with people who want access to environmental information held by UK public authorities.

Friends of the Earth also published, in December 2004, a handbook called ‘Right to Know.’ It is aimed at individuals, and explains FOI legislation and individuals’ rights in detail.

Public bodies may soon see an increase in the number of requests as a result of the campaigning by different bodies. Although the Information Commissioners’ Office has kept a low profile in promoting FOI, organisations such as the Campaign for the Freedom of Information have actively been promoting access rights.

4. Iraq war makes MoD top target for FOI requests

The Ministry of Defence (MoD) has received 443 access requests since the Freedom of Information Act came into force on January 1st, more than any other government department, according to the Financial Times (FT). According to an FT survey, the new access rights have not been exercised to the full by the British public and requests have fallen below expected levels. The Cabinet Office has received 268 requests, and the Department for Education and Skills 92.The most wanted information from the Ministry of Defence has been the attorney general’s advice on the legality of the war in Iraq.

5. Schools sluggish over FOI compliance

Most schools are not prepared for FOI requests, fears the National Association of School Governors. In an interview published in the Guardian on January 14th, the organisation admitted that many schools have not taken the necessary steps to be fully compliant with the Freedom of Information Act. A spokesman for the organisation said that most schools do not have an adequate records management system, and will not know what to do when faced with a request for information. The organisation advises schools to publish as much information as possible on their websites in order to reduce the possible number of requests, and to keep well-ordered records.

6. National Archives publishes FOI guidance on deposited public records

The National Archives’ guidance on FOI and deposited public records, published in December 2004, sets out boundaries for the review, transfer and managing of deposited public records. It is not only relevant to places of deposit, but also to all public bodies as they need to be aware of the procedures for the transfer of records to places of deposit. According to the FOI ACt, public bodies other than the National Archives may store public records that need to be preserved permanently. Places of deposit include libraries, museums and galleries, universities, local authority record offices, NHS trust record offices and some business archives.

The guidance will be reviewed periodically, and further editions may be issued as a result.

For further details on the Privacy Laws & Business UK Newsletter, please click here.

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