Campaigners attack plan to include 'thinking time' in FOI cost calculations

The Campaign for Freedom of Information has sharply criticised a Government proposal to allow public authorities to include their ‘thinking time’ in the cost calculations for dealing with FOI requests.

The Campaign said the change, if implemented, would make it harder for requesters to obtain answers to new, complex or contentious requests.

In its response to a Justice Committee report on the operation of FOIA, the Ministry of Justice said it wanted to allow authorities to include the cost of considering the request and deleting exempt information.

Authorities are allowed to refuse requests if they estimate that the cost of finding and extracting the information exceeds certain limits.

Maurice Frankel, Director of the Campaign for Freedom of Information, said: "The longer an authority needs to think about a request, the greater the chance of it being able to refuse to answer on cost grounds.

“Requests involving unfamiliar, complex or contentious issues all of which require substantial 'thinking time' would be likely to be refused under these proposals. This would prevent the Act from dealing with difficult issues or breaking new ground."

The Campaign argued that many kinds of requests were only time consuming because they raised new issues. Once these have been worked through, and particularly once case law is available, decisions may be easy, it claimed.

Frankel also suggested that estimates based on thinking time were likely to be subjective.

He added: "They may depend on the novelty of the issues to the authority, the FOI officer's experience and judgment. They may also be easily manipulated. Authorities may deliberately estimate that they would have to consult more officials than is strictly necessary in order to boost the consideration time and increase the chances of being able to refuse the request on cost grounds.”

The Campaign also criticised a Government proposal that would allow authorities to aggregate the cost of unrelated requests made by the same individual or organisation. This would mean that all those requests could be refused if the total cost exceeded set limits. These are currently £600 for government departments or £450 for other authorities.

Local newspapers would be the first casualties of this proposal, The Campaign said.

Frankel argued: "A single request about school exam results might be enough to reach the cost limit. Thereafter the whole newspaper - not just the individual journalist - might be barred from making any further FOI requests to the authority for the next quarter, even on different issues such as child abuse, road safety or library closures.”

The Campaign urged ministers to target perceived problems such as the ‘industrial’ use of FOIA specifically, “not change the rules across the board in ways that will block even modest use of the Act”.

The organisation also expressed concern at a suggestion in the Government’s response that charges might be made for appealing to the Information Rights Tribunal. It warned that such a proposal would deter requesters with well-founded cases from appealing against decisions that they would be likely to win.

The Campaign welcomed the Ministry of Justice’s decision not to introduce charges for FOI requests or to introduce additional exemptions to protect cabinet papers or sensitive policy discussions.

But it described as “disappointing” the Government’s rejection of proposals to tighten up the time limits for responding to FOI requests and to require authorities to publish their statistics on compliance with those time limits.

See also: Subject to close scrutiny – Ibrahim Hasan’s analysis of the Government’s response to the Justice Committee report