Reducing FOI cost limits will reduce government transparency

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Key points

  • Lowering the cost limit time would reduce the scope of the Freedom of Information Act, giving government departments greater leeway to deny requests.
  • This  will have a disproportionate effect on high-impact Freedom of Information requests made by journalists and researchers. 
  • It represents a new restriction on public scrutiny of government, counter to promises around improved government transparency, such as the promised roll-out of FOI to contractors providing government services. 
  • It is unlikely to significantly reduce the volume of work required to process requests – local governments also receive a comparable volume of requests at a lower cost limit, and there are administrative costs even if a request is rejected under a new, lower cost limit. 
  • Transparency is not a nice extra to have that can be cut when the budgets are tight. Governments that think they cannot afford transparency will be surprised at the corruption and inefficiency they will need to afford in its absence.
  • The actual solution to volume is improved government processes. Reducing the cost limit might increase admin burden on authorities (due to increased back and forth with requesters) whereas better proactive publication genuinely could reduce volume of requests by removing the need to request in the first place.

What’s being proposed?

A policy is being floated, around decreasing the FOI cost limit in order to address an increase in the volume of requests. 

Financial Times: UK considers FOI clampdown as requests soar:

British officials are considering a clampdown on the freedom of information system in a move that would spark backlash from transparency campaigners.

Government figures are discussing a reduction in the cost ceiling for processing a request as the number of annual submissions has spiralled, according to people familiar with the situation.

The soaring number of requests comes against a backdrop of heavily constrained Whitehall budgets, they added.

There are no further details beyond this briefing. Our assumption is that the proposal is for a reduction to the central government cost limit (see below), but with no details on the scale implied. 

As reflected in the FT story, because of central government statistics, we can see that this increase mostly relates to defence records being moved to the National Archives. It is also worth putting in the context of a separate attempt to justify restrictions based on national security. 

 

What is the cost limit?

The “appropriate limit” is the time allowed to deal with an FOI request. 

At the start of the FOI process, a cost is estimated for the likely time it will take to locate, retrieve and provide the requested information (but not time taken in doing public benefits tests or applying redactions). 

It has a value in cash, but this is pegged against a set cost per hour (£25 an hour in UK FOI, £15 in Scottish FOI).  So effectively this is a time allowed in hours:

  • £600 (40 hours) – Scottish FOI
  • £850 (34 hours) – Parliamentary questions
  • £600 (24 hours) – Central government FOI
  • £450 (18 hours) – Other public bodies FOI

A related part of the rules is that authorities can aggregate similar requests (for similar information by connected people and made within 60 working days) and apply the cost limit to them collectively. Authorities may interpret this quite broadly if the requests share an overarching theme or are handled by the same team. 

Another relevant system is parliamentary questions, where the search time is pegged to 140% the cost limit for central government. The resulting ceiling is £850 (34 hours). 

How are the cost limits changed?

The cost limits for UK FOI are set by The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. 

A new set of regulations could be made without a vote in Parliament.  The cost limits are changed via a statutory instrument passed by the negative procedure. This means the government lays the change before Parliament, and it automatically becomes law without a vote. 

MPs can sign a petition to call for a vote to annul it, but there is no automatic threshold where a certain number of signatures requires a vote. Generally it requires support of the official opposition to get a debate. 

What would be the effect of reducing the cost limit?

The likely effect of reducing the cost limit would be to prevent a class of currently useful and productive FOI requests, without significantly reducing volume or administrative costs. 

Who would this affect the most?

As the existing cost limit already rules out very broad requests, the change in any reduction would fall mostly on the most complex requests allowed by the current rules – and as such is likely to disproportionately affect journalistic and researcher use of FOI. Exploratory requests would need to be framed more narrowly, and a lower limit combined with the aggregation rule would make it easier for authorities to chain related requests together and deny them.

Any reduction in the central government cost limit would also have a knock-on effect on parliamentary questions, as the search time is linked. 

Would it reduce administrative costs?

This change would have a mixed effect on administrative costs: marking a bigger set of FOI requests as invalid has costs of its own. 

Reducing the cost limit would give more leeway to authorities to refuse requests when the documents requested are difficult to provide, but would be targeting a narrow band between what was previously acceptable and the new limit.  A lower threshold invites more dispute about the threshold, and requires justification for it falling in a narrow range, potentially causing more back and forth with requesters. What should happen in these cases is that authorities give advice and assistance on reducing the scope of the request to help fit inside the cost limit. Failing to do this has been noted in ICO decision notices about whether the exemption was applied correctly. As such, administrative savings are likely to be disappointing, as a lower cost limit creates work of its own. 

The natural experiment of the two different cost limits also does not suggest reducing would have a large effect on volume. The lack of comprehensive FOI stats means we do not have an up-to-date figure, but in 2017, local and central governments had comparable volumes of average FOI requests – despite the difference in the cost limit. 

What is a better approach to FOI volume?

Increased FOI volume raises the importance of efficient discovery and publication of information. Rather than reducing public transparency, public authorities should invest in their own processes and data to better meet internal and external needs. 

Public authorities need to be good at managing information — not just to answer FOI requests, but in order to work effectively. The effect of improved technology should be to make it easier for authorities to understand the information they hold, both for their own purposes and for public transparency.

More value can be realised by each FOI request released through improved disclosure logs. WhatDoTheyKnow.com removes the need for future FOI requests by making previous requests easier to find, with far more users of the site viewing information that has been published in previous FOI responses rather than making new requests. Public authorities can help reduce duplicate requests by publishing disclosure logs that make information released available to search engines (including AI agents), delivering more impact to releases and reducing repeated costs. This also helps address the social cost of atomised AI approaches: information is released for public benefit. 

Building on this, authorities can also learn from the subjects about  which  FOI requests are frequently made, and use that to inform their proactive publication of information. Increased volume of requests represents people making use of their information rights: this should be encouraged, while trying to make the process of finding and publishing information as efficient as possible. 

Transparency isn’t a cost: it’s a necessary investment for the rewards of reduced risk of corruption, and improved quality of work through the deterrent effect of future transparency. Efforts to cut costs could instead focus on the cost of secrecy— the high legal fees government departments have paid to try and keep secret information in the public interest. Government and parliamentarians should be invested in making this system work well, for the public benefit, rather than restricting access. 

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