ICO relief as Government steers clear of application fees for FOI requests

The Information Commissioner’s Office has welcomed the Government’s decision to steer away from introducing application fees for freedom of information requests.

The ICO’s comments came after the Government last week published its response to a Justice Committee report on the operations of the Freedom of Information Act.

Writing on the ICO’s blog, Deputy Commissioner and Director of Freedom of Information Graham Smith said the watchdog was glad to hear that there would be no such application fees “as any such charging would fundamentally change the nature of the regime”.

Smith added: “That’s not to say we don’t recognise the undue administrative burden that a small minority of FOI requests can place on public authorities, but it’s difficult to see what can be done about that without running the risk of blocking other requests which have real merit and secure the disclosure of important information in the public interest.”

The Deputy Commissioner said the ICO was concerned at suggestions in the Government’s response that reducing the cost limit or increasing the activities which count towards its calculation could be considered.

“We’d seriously question whether that can be achieved without a significant erosion of transparency,” he argued. “Certainly it would be a serious double-whammy if the cost limit were reduced and activities such as applying the exemptions could be included in the cost estimate.”

Smith said the ICO would welcome an extension to the time for bringing a prosecution under s. 77 of the Act (in cases of the deletion, destruction, concealment or alteration of information).

“If, as now proposed, the six months were to run from the date the ICO becomes aware of the issue, as opposed to from the date of the alleged offence, this provision will become a much more useful piece of regulatory equipment,” he predicted.

However, the Deputy Commissioner said the ICO did not expect a flood of cases. “But if the evidence is there, one or two successful prosecutions would send out a powerful message that FOI obligations cannot be avoided by illegal action.”

Smith admitted that the response did not include everything the ICO had hoped for.

“It is disappointing that calls for statutory time limits on internal reviews and public interest test extensions, although supported by the Justice Committee, have been rejected by the Government,” he said.

The Deputy Commissioner continued: “Beefing up the Code of Practice would be better than nothing, but it’s unlikely to have the same impact on reducing delays that legislative change would bring.”

He added that the ICO remained to be convinced that the Code of Practice was an appropriate place for giving guidance on the validity of requests (section 8) and vexatious requests (section 14).

“In any event ICO guidance on these matters is in the course of being revised,” Smith said. “Our guidance will address the issues from both the public authority’s and the requester’s perspective.”

The Deputy Commissioner meanwhile welcomed as “good news for transparency and accountability” the fact that the public interest test remained in place for all qualified exemptions.

Calls from some quarters to make certain exemptions absolute have not been acted upon, he pointed out. “The importance of this should not be under-estimated.”

See also: Subject to close scrutiny – Ibrahim Hasan on the Government’s response.