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ICO deputy commissioner advises against FOIA costs

Requests submitted under the Freedom of Information Act should remain free of charge, advised Deputy Information Commissioner Graham Smith on Wednesday night at City University.

Mr Smith was addressing a Request Initiative seminar on the Justice Select Committee’s post-legislative scrutiny of the FOIA alongside a panel of information law experts. He said it was “concerning” that some members of the Justice Select Committee suggested commercial fees should be imposed on media organisations “on the rather crude basis that journalists are using FOI to get stories to sell to newspapers.”

While it was an area of concern to the Committee that commercial organisations appear to be gathering data for their own purposes, the “vast majority” of requests made by journalists are in the public interest, insisted Mr Smith.

The introduction of fees would be an attempt at cost recovery; implementing the Act is costing local government £31.6m per year, although it was suggested this figure may be overblown after a Bexley Council study found the average spend per request was just £19.  Request Initiative director Brendan Montague flipped the coin and said FOIA costs are the government’s problem and “councils are spending £31.6 million a year to keep information secret.”

There was lively debate between other information law experts on the night including Maurice Frankel, director of the UK Campaign for Freedom of Information, “FOI Man” Paul Gibbons and FOIA trainer Tim Turner, who chewed over some other key points of the select committee’s report published earlier this year. Mr Turner suggested the ICO is not enforcing the act strongly enough although he praised the office for working through a huge backlog of complaints.

Under Section 77 of the FOIA, it is a criminal offence to destroy information but no prosecutions have been launched to date, as proceedings must begin within six months of the alleged destruction. “The problem we’ve found,” explained Mr Smith, “is that very often evidence does not come to light until six months it occurred so there’s a clear problem with that time limit.”

An audience of more than 90 people attended and spoke of their increasing difficulties in obtaining specific types of information such as email correspondence and information relating to policy formulation.

Maurice Frankel said some MPs had sought an absolute exemption for information relating to government policy formulation and warned that alternatively we might see more frequent use of the ministerial veto. He added: “It is the sign of any healthy Freedom of Information Act that it is not entirely loved by government.”

A Government decision on the Committee’s findings is expected in later this year. At present there are no plans to introduce commercial fees, but Mr Smith said “it is important to recognise that just because the Committee haven’t recommended something, that doesn’t stop the government from making its own decisions.”

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