The Herald

By Fiona Nicolson

13 November 2006

The promotion of openness and accountability were key driving forces for the introduction of Freedom of Information (FOI) legislation. However, requests for information made under the provisions of the Freedom of Information (Scotland) Act 2002, which could be construed as being political sensitive, could now be rejected more easily as a result of new proposals by the Lord Chancellor, Lord Falconer.

His suggested reforms would widen the scope for Scottish ministers to reject requests on the grounds of cost, preventing certain information - potentially of the type of most interest to citizens - from entering the public domain. The implications for how the act is used in practice could be significant.

The current law states that where the cost for dealing with a request for information to a Scottish Executive body exceeds £600, this can be rejected - even if the information is not exempt from being released.

At present, the practice among most public authorities is only to charge the applicant for minimal - if any - costs. While there may be a charge for photocopying, the cost of the time spent by staff on locating and processing the information is not factored into the process.

Under the latest proposals, ministerial time could be included in calculating the cost of providing information to an applicant. Requests for information which require a "public interest" consideration are more likely to be refused because of the ministerial time involved to carry out the balancing exercise. This would typically be the case for information which is of the greatest interest to the public, and it is clear this sort of situation was never envisaged when the act came into force.

The Department of Constitutional Affairs estimates the cost of a request involving a minister to be, on average, £495. It is not difficult to imagine that this figure could, in time, easily escalate to the £600 cut-off point, preventing the requested information being released into the public domain.

Lord Falconer has also proposed a form of aggregation for multiple requests made by the same applicant to the same public authority. Consequently, a series of requests from the same applicant, even on different topics, would be grouped together as one for the purpose of calculating the cost. By implication, the greater number of individual requests which are considered to form part of a "single" application, the easier it would be for a public authority to argue the cost of providing the information exceeds the £600 threshold.

This would have a significant impact on applicants who frequently make multiple requests for information, such as opposition parties, the media and campaign groups. It may be argued that removing these applicants' rights to request information would undermine the effectiveness of the legislation for the people whose job it is to scrutinise public authorities.

Conversely, the measure would save money by reducing the time which public authority workers spend dealing with such requests. Many public bodies simply do not have the resources to cope with what can often be a time-consuming and labour-intensive exercise.

Several issues remain unclear on how this particular proposal would be implemented, such as the timescale over which requests can be aggregated and the extent to which unrelated requests made to large public authorities, such as the Scottish Executive, can be treated in this way.

One other reform proposed by Lord Falconer would be to charge a flat fee for all FOI requests, no matter how routine or uncontroversial. This would most likely impact on private individuals and act as a deterrent to the more cost-conscious applicants.
The Scottish Information Commissioner has argued that the effect of an upfront fee can be considerable in dissuading requests for information. For example, when this measure was introduced in Ireland, requests for non-personal information reduced by 75%.

The implications of Lord Falconer's proposals could have a particularly marked impact in Scotland. The perceived result of these reforms is not only to expand the potential for public authorities to refuse requests on the grounds of costs, but will also mean applicants will have to carefully consider their position before submitting numerous requests to the same authority in a short period of time.

The hope is that the cumulative effect of the proposals will be to reduce the number of requests by almost 20%, save £5.7m of public money, and ease the burden on public authority workers.

There may, however, be an alternative option, which is more concurrent with the underlying purpose of the act. Instead of discouraging applicants from making requests for information, Scottish public authorities should make greater use of the publication schemes under the act. This would allow them to refuse a request - and save costs - on the grounds that the information is already available.

While controlling costs is a laudable objective, it should not be the only one. Careful consideration must also be given to ensure any new measures do not have a detrimental impact on the culture of openness and accountability which the Freedom of Information (Scotland) Act seeks to introduce.
 
Fiona Nicolson is a partner in the IP and technology department at Maclay Murray and Spens