IS CHARGING FOR FOI REQUESTS JUSTIFIED?

The UK Freedom of Information Act is currently, more or less, free to use. This week it was claimed (via a leak) that the new independent FOI commission has re-floated the idea of a ‘flat’ application fee.  But what would paying for an FOI request mean in practice? And how would it work?

What is the fuss about?

The fee is likely to be of the kind that exists under the Data Protection Act, which has a standard £10 fee.

Most FOI regimes, from India to the US, have a standard application fee that is charged for most (but not all) requests. However, almost all these charges have been part of the system from the start. Although some regional or state level openness regimes have introduced a fee , only one country, Ireland, went from having no charge to charging five years into the Act (the fees were then abolished again in 2014). In Australia Federal level FOI charges were abolished in 2010 and then reintroduced.

The difficulty with fees for governments are both practical and symbolic. Their introduction or abolition not only effects how the system works but is seen as a ‘signal’ of their attitude towards openness. Introduce fees bad, abolish fees good, to put it crudely. This comes at a time when fees for FOI appeals are also being considered, so it looks like a clampdown.

Why would a government do this?

The answer depends on your point of view, or your level of cynicism. Governments often make the case that FOI costs money so the fee goes towards offsetting the resources used-some public bodies make it explicit on their website. Critics see the cost claims as a smokescreen, as fees have also been found to deter requesters (see below).

What effect will it have if they are introduced?

Using Ireland as an example, a fee for an FOI request may do and not do a number of things, though these lessons are not strictly comparable as Ireland does not have a Data Protection law (so FOI is used to get personal records).

One clear effect in Ireland, as Martin Rosenbaum pointed out, was to cut the number of requests almost in half and according to the information Commissioner the result was a ‘dramatic’ fall in [non-personal] requests of 75% in a single year. Certain groups such as MPs and journalists saw a particularly sharp decline. As of 2013, a year before fees were abolished, requests remained at only half of their pre-fee level and represented a ‘tangible barrier’ to ordinary requesters.

It’s less clear whether a government can claw back any costs. In Ireland, Nat O’Connor concluded that the fees recouped only 1.6 % of the estimated cost and, given the relatively small number of non-personal requests to most bodies, were likely to cost more to administer.

The actual economics of FOI are rather difficult and very political, as I’ve pointed out elsewhere. Measuring the ‘cost’ of FOI involves balancing administrative resources against democratic benefits and any figure, high or low, can be challenged.

The details of any fees system will be key. Public bodies could use the sytem to point blank refuse or simply work outside of the rules. Evidence from a number of Australian states, where the first two hours of answering was ‘free’, found that many public bodies simply didn’t bother to charge if a request was small, as it was cheaper simply to send it out. You could imagine that parts of local government, the focus of 70-80% of all FOI requests, would opt for this.

On the other side requesters could try to get round it by, for example, asking lots of requests in one ‘request’. There may also be ways of building up ‘funds’. In a number of countries there have been successful experiments in the crowdfuding of requestsincluding this FOI Machine in the US.

So will it happen?

The chances are unlikely. FOI systems come in for much criticism but actually changing them is difficult due to the symbolic potency of its name. In the UK fees have been suggested before in 2006 and some vague action against ‘industrial users’ was floated in 2013 but neither got off the ground. Many governments moot changes but few take place because they encounter stiff resistance, from press criticism to hunger strikes. The principle of Freedom of Information attracts cross-party and, more importantly, cross societal support-see the signatories on the letter about the FOI commission. Often governments see the hostility and resistance and conclude it’s simply not worth it politically. Often, but not always.    

Ben Worthy is Lecturer in Politics at Birkbeck, University of London. He tweets @BenWorthy1.

Image: Tristan Martin CC BY-ND