Charges and exemptions under the spotlight as FoI commission seeks 'safe space'

A new charging regime for freedom of information (FoI) applications is top of the agenda as the Independent Commission on Freedom of Information considers its recommendations.

The commission is considering whether or not the Freedom of Information Act 2000 provides an appropriate public interest balance between transparency and accountability, a 'safe space' for policy development, and the need for sensitive information to have protection.

The commission will also focus on broadening the current scope of exemptions and tightening the enforcement and appeals process, according to law firm Bevan Brittan.

Firm associate Emma Godding said that, despite FoI being a sensitive and controversial area, change looked inevitable.

'The commission has a tricky balance to strike between maintaining public access to information, while trying to ease the burden on a wider public sector that receives around 87,000 FoI requests every year at an estimated cost of £11m,' she explained.

Godding added that the commission's recommendations will be eagerly awaited as they will be critical to government, tens of thousands of public sector bodies, and many private sector and voluntary organisations.

'Safe space'

Bevan Brittan suggested that for the FoI Act to provide a 'safe space' for policy development, changes to the charging system may be necessary.

The current cost limit for the time in complying with a request is £450 for all public authorities and £600 for central government. Where the estimated cost of compliance exceeds this amount a request can be rejected. This equates to a limit of 18 hours of an employee's time.

Deducing what activities can be taken into account when assessing whether the 18-hour limit will be sufficient is the main sticking point, given the time it takes to handle documents.

Making it easier for public authorities to refuse requests on cost grounds, in addition to introducing an amended charging system, is an option for the commission, said the firm.

Exemption and enforcement

The national firm also believes broadening the scope of exemptions from disclosure could be put forward by the commission.

In March, the Supreme Court ruled that a veto issued by the former attorney general, Dominic Grieve QC MP, preventing the disclosure of the so-called 'black spider' letters, was unlawful.

Bevan Brittan said the commission may recommend a lower threshold for authorities to substantiate their arguments, reducing the scope of the public interest test and allowing more information to be withheld.

It is also the firm's view there may be a recommendation to tighten up the enforcement and appeals process to reduce the cost of compliance and litigation.

Matthew Rogers is an editorial assistant at Solicitors Journal matthew.rogers@solicitorsjournal.co.uk