Thursday, 18 April 2013

The Cost of Knowing

Freedom of Information is not free - so how much can you ask for?

I've recently sent an FOI request to a large number of schools in Northern Ireland, and while many responded quickly - and correctly - some of them demanded money for responding. That's perhaps understandable, since they're clearly not familiar with the law and it probably seems like an unnecessary expense for them; but it's not what the law allows.

One thing that really confuses people is the cost exemption. Under UK law, public authorities are allowed to refuse a request if it would cost too much to answer. In UK central government, and for all Scottish authorities, it's £600; in other cases the limit is £450. Since the main cost of answering requests is staff time, there is a set charge for this. In Scotland, this is £15, which means a requester can get up to 40 hours of staff effort. In other parts of the UK, the amount is £25, so you can expect 24 hours of central government time or 18 hours elsewhere. (Strictly speaking, this is the most you can charge, and you could provide more if you use staff costing less than this; but I don't think anyone actually does this).

The charge you can't charge for

Here's where it gets confusing. This figure is just for estimation purposes: if a request would cost more than this to answer, an authority can legally refuse to provide any information at all. But you cannot actually charge for staff time. One school insisted that I had to pay £50 for the two hours of staff time they thought it would cost to respond, and insisted they had legal advice that said they could do this. I had to explain that under the FOI Act, they can only charge for copying and postage - as long as the staff time was under the cost limit, it's free.

(In Scotland, by the way, they can charge for staff time, but only if it costs over £100, and then only 10% of the amount. In Ireland, in addition to the €15 charge for asking in the first place, there are 'search and retrieval fees' of €20.95, although there is no cost limit, so if you can afford it, ask away. In theory a 'voluminous' request can be rejected, but as there are no guidelines as to what this means, nobody uses it.)

If you're looking for environmental information, of course, things are different yet again. There is no cost limit in either the UK or Ireland, and copying and postage can be charged for. It's not clear whether staff costs can be charged - the Scottish Information Commissioner seems to think so, but recent court cases in Dublin and London seem to contradict this.

Finally, if the materials you ask for are normally published, and charged for, by the authority, they can still do this. Although they shouldn't charge unreasonable fees for this.

Hitting the cost limit

If you've got an enquiry for several authorities, it's worth testing it out on one first - asking for the information, and asking how they collected it and how long this took them. That can be a useful piece of information when approaching other bodies (though they may have quite different filing systems).

What happens if a body decides your request will cost more than the limit? They can refuse your request, but it shouldn't stop there. Their decision ought to be based on a reasonable estimate. Let's take an example.

Broken premises

You work for a local authority. A requester wants to know how many premises have been broken into in the last 20 years. As an FOI officer, your first call will be to the head of security, if there is one, or the director of premises or estates. They may have a handy file called 'break-ins' in which case you can answer within the hour. But they probably don't. They may have files of correspondence with the police. But these may not go back 20 years, they won't include any break-ins that were not reported, and they will mostly be about other things. This is probably not going to be very productive, but it may be the best you can do. The files are probably not large, so it won't take more than a couple of hours to look through them.

On the other hand, a good FOI officer should have good contacts. If you know the person who actually goes round checking out premises security - I once worked with such a man with the splendid name of George Bernard Shaw - you might discover that all such incidents would be recorded on the relevant premises file.

A quick investigation, however, reveals that the authority owns 300 premises, from headquarters buildings to toolsheds, and the files go back 60 years or more. You pick up a file at random and flick through it. It takes you fifteen minutes to look through, and discover that there was a break in noted in 1994. Based on this estimate, and guessing there are at least 300 files to be considered, you decide it would take at least 75 hours to read through them all. Congratulations, you've hit the cost limit.

But you can't quite stop there. How are the files organised? By region? By type of premises? By decade? Or just alphabetically? If you want to do your job properly, you need to think about this.

Under the UK legislation, authorities are supposed to offer 'advice and assistance' and this includes helping them bring their request within the cost limit. You should offer to provide an answer from a subset of the files, if this would be possible. Of course, in this case, you need to give them an idea of what they could realistically ask for - files going back only 5 years, say, or only one part of the council area. This might be all they need. You should explain how you worked out the cost estimate.

Narrowing the estimate

If you send an authority a narrowed request following a cost refusal, they are allowed to treat this as a new request. (They cannot treat your request for details on how they arrived at their cost estimate as a new request, as happened to Lyra McKee of The Muckraker.)

This was the Police Service of Northern Ireland, verging on obstruction.

It can be frustrating to have to wait a further 20 days to get the information, so it's important for both sides to have clear details of the records involved. It's important as well to have a sound basis for your calculation. In 2010, the Information Commissioner reported on the attempts by Queen's University Belfast to withhold data on tree rings:
As part of its initial arguments for refusal of the request, QUB had stated that the requested data was held electronically on 150 disks and manually in paper files. QUB’s initial estimate for the time taken to comply with the request was 12 months of full-time work for one person.
When the Commissioner's staff investigated, however, they came to a different conclusion:
at the inspection of 26 February 2009 the Commissioner noted that there were in fact only 67 disks, which contained 150 folders of relevant data. The Commissioner examined a sample of the disks, and established that the raw data, approximately 11,000 tree measurement samples, was held electronically in an average of 20-60 folders per floppy disk. .. the Commissioner established during the inspection that on average it would take approximately 5 minutes to transfer the data folder to folder using Notepad. Accordingly, the Commissioner estimated that it would take approximately 12.5 hours to complete the transfer of all disks and make a copy.
It's important, therefore, to have a realistic estimate. It's also important, as a requester, to be flexible about what information can be provided. You could, in the council example, ask for information on the past 2  years instead of 20 years. But unless the files are organized chronologically, this may not be of much benefit; each file would still have to be examined, although not all pages would have to be considered if the papers are in date order.

There is one solution to this problem that's rarely attempted, although it is often almost as good: use a sample instead. If all you want to know is how often council premises get broken into, you can get almost as good information simply by extrapolating from a random selection of files. If you're familiar with Douglas Hubbard's book How to Measure Anything, you'll know that a small sample can often provide amazingly accurate information. From just 30 of the 300 files - which would take less than 8 hours to examine - you should get a pretty clear picture of how rare or common break-ins are.

Of course, this might not be the sort of information you want. And if it is, you're probably not going to make  yourself popular with FOI Officers. But if it gets you answers within the cost limit, it's worth going for.

Aggregating requests

Finally, you might have the bright idea of getting your request in by the simple process of splitting it into several requests - either from you, or from a group of friends. The framers of the FOI Act, however, are one step ahead of you: this way of getting round the cost limit won't work. Authorities are entitled to 'aggregate' together records which are obviously part of the same enquiry, or part of a campaign: they can add the costs of all the enquiries together in order to come to a total, and refuse all if the total exceeds what they're allowed.

No comments:

Post a Comment