Alistair Sloan, Advocate

On Wednesday I published the first in a series of blog posts defending FOI.  This comes in light of the Justice Select Committee’s post-legislative scrutiny of the Freedom of Information Act 2000 (FOIA).  In particular what spurred me on to write these blog posts was the obvious attacks towards FOI advanced by some of the public authorities that responded to the Justice Select Committee’s call for written evidence.  The link to the written evidence submitted can be found in Yesterday’s post.

In this post I intend to look at the issue of vexatious requests and what some of the arguments on the subject are and why I disagree with them.

ACPO argues that the provisions relating to vexatious requests should apply to both the request and the requester.  ACPO states in its evidence that it can demonstrate examples of where three people have engaged entire FOI teams in a force and that this is to the “detriment of other requesters and the proactive publication of information”.  I am of the view that the current provisions are more than adequate to cover such situations and that they are probably not being used as effectively as they could.  While an authority cannot consider a requestor vexatious they could, in effect, consider their requests vexatious.

 Section 14 covers vexatious or repeated requests.  In the Commissioner’s guidance there is a list of things that a public authority should be considering when deciding if a request is vexatious.   The commissioner states that to consider a request vexatious the public authority should be able to make strong arguments under more than one.  There are four headings which could easily be applicable to requestors who are making a high number of requests to a public authority.

However, I do not think that the issue with regards to “vexatious” requests necessarily turns on those who abuse FOI to harass a public authority over a particular grievance that they hold or those who make a larger number of requests on a wide number of topics.  I suspect the requests that most people have an issue with are ones like this, this and this.  They do on the face of it appear to be rather a waste of time.

I do not take the view that these requests should be classed as “vexatious” or “a waste of time”.  Whether you are of the opinion that Zombies or Aliens are real is rather irrelevant.  There are people in this country who do believe in ghosts, zombies and alien life forms and no doubt some of them have a genuine fear of attacks.  Every person has ha right to feel safe and secure and if contacting their local public authority or Central Government to obtain information that reassures them then there cannot be anything wrong with it.  Granted, some of them really were just nonsense and were made off the back of one being featured in the news.  However, I do find it much more difficult to defend the third example above.

The Local Government Association recently compiled a list of unusual FOI requests that had been received by Local Authorities over the preceding year.  It appeared to be as part of an attack against FOI (or certainly an argument for tighter restrictions on the ability of the public to use FOI rights).  However, when I saw some of the requests on the list I had to disagree with the way in which the LGA appeared to be spinning them.  For example, Cornwall Council was asked about holes in the privacy walls between toilet cubicles in public toilets and those on council premises.  There is, I would submit, a public interest in such matters.  These holes could potentially be used for committing indecent acts and thus a criminal offence.  Another example pointed out by the LGA was made to Scarborough Borough Council asking about the number of cheques issued and received by the Council.  Given that the Banks have been suggesting getting rid of the cheque as a form of payment I do not see it as unreasonable to be gathering evidence as to how cheques are still being used and how frequently.

So, not every request that appears to be “stupid” or “a waste of time” actually is.  Of course, there are some who will abuse their FOI access rights and make hundreds of requests which gather no real information at all or who will make requests instead of looking to see if the information is already available or who will use it as a method to continue a personal vendetta against a public authority.  However, the vast majority of decent users of FOI who are after serious information or who want to know more about what a public authority actually does for them should not be punished.

ACPO, for example, suggested in its evidence to the Justice Select Committee that public authorities should be able to take into consideration requests made to other public authorities when deciding if a request is vexatious.  This, I suggest, would be a dangerous move.  Take the Police as an example.  In England, Wales and Northern Ireland (where ACPO draws its members from) there are more than 40 geographical and non-geographical police forces.  If an individual is after a national picture of some particular matter that is not routinely published either nationally or by each force individually, then there is no option other than to make a separate request to each and every single police force for the information.  That is because each police force can only disclose information that it holds.  One cannot, for example, write to the Metropolitan Police and ask for all the information on a particular subject for each police force in the UK.  The Met would only hold the information that relates to the geographical area that it polices!

Unless information is going to start to be held centrally for all organisations who provide the same functions then when it is necessary to obtain a national picture the only option is to write to every public authority concerned for the information.

I could write a lot more on the question of vexatious requests, but I will leave this topic here for now.  I will write further posts on the subject of FOI generally in the coming days and weeks.  It is vitally important that the current FOI rights are maintained and not restricted.  It is not an expensive luxury, but rather a necessity in an open and democratic nation and it should be easy and (on the whole) free to obtain information from public authorities

On Monday 13 February 2012 the Justice Select Committee published the written responses it received to its call for evidence as part of the post-legislative scrutiny of the Freedom of Information Act 2000.  Predictably the public authorities that responded were on the whole looking for a tightening up of the rules, particularly around costs and vexatious requests.

The Association of Chief Police Officers (ACPO) provided a response to the Select Committee that I personally disagreed with fundamentally.  If ACPO’s suggestions were adopted there would be a significant curtailment of information access rights under the FOIA.  The ACPO response can be read at the link above and is numbered FOI 12 in the document and starts on page 39.

The first recommendation of ACPO that I fundamentally disagreed with was their recommendation 3.  ACPO are suggesting a flat fee that applies to all FOI applicants.  They mention the £10 fee that applies in the case of Subject Access Requests under the Data Protection Act 1998.  It is unclear whether they are suggesting a fee of £10 or simply pointing to a situation where access to information costs a small fee.  In arguing for the introduction for a fee ACPO points towards the “continued demand on resources” that “has led to excessive and disproportionate effort in responding to FOI requests”.  ACPO states that there is “an overwhelming response from forces in seeking support for the introduction of charges in respect of FOI requests”.

There is a financial burden placed upon public authorities in answering FOI requests and it is understandable that in a time of cuts where public authorities are being expected to make huge savings in their budgets that public authorities will look at everything they can to see where costs could be cut.  It seems though that FOI is an easy target.  Most public authorities still fail to see it as part of their essential frontline duties.  Indeed, while all public authorities say that they support the need to be more accountable and transparent, the actions of many public authorities tell a very different story.  Pro-active disclosure is, in my view, one of the best indicators as to whether FOI is working.  Most organisations publish more information than they did before the FOIA came into force.  However, many are not publishing anywhere near as much information as they might to on a pro-active basis.  Pro-active publication is one thing that could potentially reduce the cost of FOI to the public authority.

Are public authorities reviewing their FOI requests to identify the kinds of information people are requesting on a regular basis?  If so, are public authorities then creating publication schedules to publish that information regularly and on a pro-active basis? If not, why not?  If the public authority is aware that information of X, Y and Z nature is requested on a frequent basis then why not pre-empt the requests and publish it on a more frequent basis?  This saves both time and money.  It saves time in that the information doesn’t need to be sourced, retrieved and then considered for disclosure in response to an FOI request.  If information requires to be redacted then authorities do not need to spend time redacting it and then justifying why it has to be redacted in a refusal notice.  I would have thought that it would have been much easier to produce a refusal notice citing Section 22 (information intended for future publication) than to carry out the entire FOI process in response to an information request, especially if it is information that is requested on a frequent basis.

I am not persuaded by the argument that because of government cuts that FOI is an expensive luxury.  As public authorities make cuts to public services I believe that FOI is essential in making those decisions open and the decision-makers accountable for how they are cutting costs.  Local campaign groups have had a lot of success in exposing unfair, disproportionate, illogical and potentially illegal decisions through FOI.  If FOI didn’t exist, or it was made much easier for public authorities to refuse requests, or harder for applicants to make requests then this essential scrutiny on public authorities would be severely diminished if not lost altogether.

The Office of the Scottish Information Commissioner conducted research recently which looked at a number of things.  One issue that it looked at was the introduction of fees for making requests.  It found that 64% of people generally would be put off making a request if they had to pay for the information.  This figure rose to 70% for those described as “not working” (a group upon which cuts could have a disproportionate impact) and among the 18-24 group (another group vulnerable in the face of government cuts) this figure rose to 80%.  The potential effect on such a move, to borrow a phrase used by senior civil servants, could be “chilling”.  There would be a severe curtailment of FOI rights simply by adding in a charge for the information requested. Why should access to officially recorded information only be for the rich or companies who can afford to pay a fee for the information?

The reduction in FOI requests might suit the public authorities.  A decrease of more than half in the number of requests would represent a significant saving across the public sector as a whole and certainly within each public authority it would represent a welcome saving.  However, I do not believe that reducing the number of requests is in the public interest.  Certainly, there is an argument to remove some types of requests from the system.  However, there are provisions within the Act to do just that.  A public authority can deem a request as “vexatious” and by doing so (providing they are right to do so) they are discharged from their duty to respond substantively.  Although, it is the request and not the applicant who is deemed vexatious and some authorities would like to see this changed so that an applicant can be deemed vexatious.

Under the cost headings ACPO also argued in its written response for a decrease in the number of hours used to calculate the costs of a request.  Currently the limit is set by the Regulations at 18 hours.  In essence if the public authority reasonably estimates it to take more than 18 hours to do certain things then the request can be refused on the grounds of cost.  ACPO argues that this should be reduced to 10 hours.  This would result in more requests being refused on cost grounds, which public authorities might see as a good thing.  However, that doesn’t stop a determined person from getting the information.  They could make more narrowed and focused requests every 3 months or so, thus avoiding the cost grounds but not really reducing the cost burden on the public authority.  Obviously if the reduction in hours from 18 to 10 was brought in alongside a provision for a flat fee or charge for the information then that might have the public authority’s desired effect.

The truth is that nobody really knows how much FOI costs.  It’s hard to establish any exact figures and refusal on the grounds of cost is always based on an reasonable estimate.  The problem with establishing cost (and indeed the number of hours spent answering a request) is that no single person in an organisation is wholly responsible for FOI (except perhaps in your small parish councils and such like).  Public authorities may have FOI officers, but generally people from around the organisation will be engaged in FOI activities.  The Finance department would be engaged in requests relating to financial information, legal services in requests about legal matters and so on.  Unless every member of staff were to keep a detailed record of exactly how much time they spent each day doing each of their tasks, including research FOI requests, then it’s not possible to get accurate figures.  The best figures that we have are estimates and they could very well be over-estimated or under-estimated.

Some activities are not included in the cost calculations.  What can be included in those calculations is listed within the Act.  Some activities which could potentially be time-consuming and expensive are not included.  The time spent reading and redacting information from documents is not included within the cost calculations.  In most requests this does not pose any real problem.  I would imagine that most requests involve very few documents to be read and considered in terms of whether information needs to be redacted or not.  ACPO does give a single example though (and generally I am very wary of single examples).  ACPO brings a request made to the City of London Police to the attention of the Committee.  It claims that in one request there were “over 1,830 records, totalling some 250,000 pages” to be read through.  The information had been easy to locate and extract and so could not be refused on cost grounds, but had the applicant insisted on keep their request as they had originally drafted it then City of London Police would have had no choice but to comply with the request in full.  ACPO states the force estimated it would take some 2,976 days worth of time to consider all the information for disclosure.  The fact that City of London Police managed to reach a compromise with the applicant suggests that the applicant’s initial request was probably far too wide in the first place.  Anything that brings up that volume of recorded information probably is far too wide and rather than looking at cots and fees for information requests perhaps we should be looking at educating the public on how to make an effective request for information.

There is a lot more that I would wish to write on the post-legislative scrutiny of the FOIA, but I feel that this post long enough as it is so future posts will come.  Although, I will end by stating that I am not singling out the ACPO response to the Select Committee and in future posts I will be drawing out evidence from other people or authorities which I disagree with.

Finally, I did submit my own response to the Committee and that can be read in the document linked to at the start of the post.  My response is FOI 14 and begins on page 46.