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Costs
3.1 It is not possible at this stage to provide precise estimates of the cost to public funds of implementing a statutory Freedom of Information regime. An estimate of the financial effects of the legislation will be made when the draft Scottish Freedom of Information Bill is published for consultation and pre-legislative scrutiny.
3.2 The consultation document published with the draft Westminster Freedom of Information Bill estimated that the cost to public funds of implementing the Bill's proposals across UK public bodies would be in the region of £90 million to £125 million each year. This estimate assumes that a much larger number of requests for information would be submitted under the statutory regime than is presently made under the UK Government's Code of Practice on Access to Government Information. The estimate includes the costs of processing requests for information (including the costs to public authorities of operating the review and appeals process); the costs of making information available under a scheme for the pro-active publication of information; and the costs of training programmes within public authorities. It also includes the costs to the Home Office of implementing the legislation and funding the Information Commissioner and a Tribunal. These costs are to be spread across the public sector as a whole and, on the basis that those authorities likely to receive a significant number of requests for information already deal with a large volume of correspondence with the public, absorbed within existing resources.
3.3 The UK Government has estimated that the cost of setting up and running the Office of the UK Information Commissioner could be up to £6.5 million each year, the actual figure depending on the level of business.
3.4 Based on 10% of the UK Government's estimates, the annual cost to Scottish public funds arising from Scottish Freedom of Information legislation would be in the region of £9 million to £12.5 million. Clearly much would depend upon whether there were a marked increase in the number of requests for information and, critically, whether these required significant resources to answer. Of over 200,000 items of correspondence received in 1998 by Scottish public bodies subject to the jurisdiction of the Parliamentary Commissioner for Administration, only 263 were considered formal requests for information under the UK Government's Code of Practice on Access to Government Information17.
3.5 There would also be costs involved in the setting up and running of an office of the Scottish Information Commissioner and, if introduced, of a Tribunal. These costs would be very much influenced by the volume of appeal activity, but there would also be an element of fixed costs. Appeal activity under the Code of Practice has to-date been low. The Parliamentary Commissioner for Administration received only 2 complaints relating to Scottish public bodies in the 1998-99 Parliamentary session. In relation to the UK Government total of 23,859 formal Code requests in 1998, just 39 complaints were received and, of these, the Commissioner agreed to investigate 17. It may therefore be not unreasonable to expect a similarly low volume of appeal activity involving the Scottish Information Commissioner. On the other hand, the volume of appeals may be higher under the statutory regime given our intention that its institutional coverage be wider than the Code of Practice.
Charging
3.6 There will be a cost to public authorities in meeting their obligations under the statutory Freedom of Information regime. The Scottish Executive proposes that these costs should not be met in full by those exercising their rights to obtain information. It is necessary however to ensure that the resources of Scottish public authorities are not unreasonably diverted from their many other responsibilities. The charging schemes already in place for access to the public records and registers managed by the National Archives of Scotland, the Registers of Scotland and the General Register Office for Scotland, will not be disturbed by any Freedom of Information charging scheme.
3.7 In the United Kingdom, people wishing to obtain access to information under the Data Protection Act 1984 have been subject to a maximum fee of £10 per request. Freedom of Information regimes commonly include charging, sometimes taking the form of a flat rate entry or 'gateway' fee. Under the Code of Practice on Access to Scottish Executive Information there is no flat rate entry fee. Those public authorities subject to the Code of Practice may however charge the full costs of supplying information once the costs exceed £100. There is no upper limit on the charge that a public authority can levy.
3.8 The draft Westminster Freedom of Information Bill proposes that fees regulations will specify that a discretionary charge of up to 10% of the reasonable marginal costs of locating and disclosing the information (plus any reasonable costs for disbursements) may be levied. The UK Government envisages that for most applications the charge will be at, or possibly below, £10. Where however an authority uses its discretionary powers to release information not ordinarily disclosable under the regime, it may set a fee not subject to the 10% ceiling. The draft Bill includes a regulation making power which will enable an authority to refuse to deal with a request on grounds of excessive cost. This limit on the cost of providing information, which will in certain circumstances be discretionary, may be set at £500.
3.9 We consider that any charging scheme should not deter the genuine applicant, but should discourage the submission of vexatious requests, and that it should be straightforward and simple for applicants and public authorities to operate.
Our proposals
3.10 There are three proposals on which comments would be welcome. We would also welcome any general comments on the issue of fees and charges.
3.11 The first proposal is based on the charging scheme contained in the draft Westminster Freedom of Information Bill. The main features would be:-
3.12 This proposal would benefit those applicants seeking large amounts of information or information which needed to be located from several sources. It could however have a financial impact on the large number of applicants who requested information costing under £100 to provide, unless, on the basis that it is generally uneconomic to collect and account for small charges, the public authority exercised its discretion not to charge in these circumstances.
3.13 The second proposal is based on the current charging structure under the non-statutory Code of Practice on Access to Scottish Executive Information, but with a cost ceiling. The main features would be:-
3.14 This proposal would, as under the Code of Practice on Access to Scottish Executive Information, mean that the majority of requests for information would be met without charge. Those applicants seeking large amounts of information would potentially be subject to higher charges than under the first proposal. This proposal would thus satisfy the Executive's intention not to deter the large number of applicants who request information costing less than £100 to provide. At the same time, it might act as a deterrent to voluminous or vexatious requests and it would provide authorities with a means to refuse requests on the grounds of disproportionate cost.
3.15 The third proposal would involve setting a mandatory flat rate fee for entry to the statutory regime. This could perhaps be set at £10.
3.16 This proposal would potentially provide more income to public authorities but it takes no account of the cost to the public authority of providing information and it might deter those applicants with simple requests which can be met in a straightforward manner by the public authority. This proposal might also be considered to be unreasonable on those occasions when a public authority decided not to disclose the information requested (unless the entry fee were returned).
3.17 All comments received on the issue of charging will be carefully considered.
17 The Code of Practice applies to, and informs departmental handling of, all requests for information, whether or not applicants specifically mention the Code. For monitoring purposes, formal requests are defined as those which specifically mention the Code of Practice or for which a charge is paid or for which information is refused under one or more Code exemptions. Until 1 July 1999, The Scottish Office and a number of other Scottish public bodies operated the UK Code of Practice.
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