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Home Positive Action Group Our Charter and Objectives Open and Accountable PAG Submission to Consultation on Freedom of Information Bill - Draft Bill: Clauses 34-42

PAG Submission to Consultation on Freedom of Information Bill - Draft Bill: Clauses 34-42

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Article Index
PAG Submission to Consultation on Freedom of Information Bill
Executive Summary
Draft Bill Clauses 5 to 10
Draft Bill: Clauses 11-14
Draft Bill: Clauses 18-22
Draft Bill: Clauses 27-31
Draft Bill: Clauses 34-42
Draft Bill:Clauses 43-47
Draft Bill: Clauses 48-50
Draft Bill: Clauses 53-67
All Pages

Clause 34 – Formulation of policy

(3)       In making a determination under section 26(3) (primary duty of public authority to supply information) in connection with information which relates to the formulation or development of government policy, regard must be had to the public interest in disclosing factual information used to provide an informed background to decision-taking. 

Comment

The equivalent UK provision is as follows:

(4)       In making any determination required by section 2(1)(b) or (2)(b) in re lation to information which is exempt information by virtue of subsection (1)(a), regard shall be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used to provide an informed background to decision-taking. 

It expressly steers disclosure in favour of disclosure of factual information which either has been used, or is intended in future to be used, in decision-taking. That is, it applies both to decisions which have been taken, and those still under consideration.

The IoM provision may be intended merely to simplify the drafting, but it weakens/removes the emphasis on disclosure of factual information about forthcoming decisions.

Clause 38 – Qualified exempt personal information

(2)       The first condition is that the data subject would be entitled under section 8 of the Data Protection Act 2002 to prevent its disclosure on the ground that it would cause, or be likely to cause, substantial damage or substantial distress to the data subject or another person.

Comment

There is a drafting ambiguity here. Section 8 of the IoM Data Protection Act allows a data subject, to object to disclosure, if

(a)       the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) that damage or distress is or would be unwarrented

Clause 38(2) repeats only part of the statutory definition in section 8 of the DPA, ie it omits the reference to the fact that the damage or distress must be “unwarranted”. This is the kind of drafting ambiguity that can cause problems. It would be better either to repeat the whole of the definition from section 8 DPA, or merely refer to s 8 and not repeat just part of the definition. That is, the problem would be avoided by saying;

 “(2)      The first condition is that the data subject would be entitled under section 8 of the Data Protection Act 2002 to prevent its disclosure.” 

Clause 42 – Excessive cost of compliance

 (1)       A public authority may refuse to comply with a request for information if it estimates that the cost of doing so would exceed the prescribed amount.

 Comment

 P A G suggests that this be amended to read:

“A public authority may refuse to comply with a request for information if it reasonably estimates that the cost of doing so would exceed the prescribed amount”.

 It would be helpful to be given an indication of what cost limit CoMin intends to set - and how the cost of complying with any request will be calculated.

Under the UK legislation, the cost limit is £600 for central government and £450 for all other bodies, calculated at a standard rate of £25/hour. This provides 24 hours staff time for central govt and 18 hours for other bodies. Crucially, only the time spent locating, retrieving and extracting the information can be taken into account.

The fees regime under the Scottish Act is different and perhaps more favourable. The cost limit is £600 for all authorities, not just central govt. The hourly standard charge is £15/hr. This means requests can only be refused if they require more than 40 hours work. However, requesters can be asked to pay 10% of the costs, once the first £100 have been exceeded. This obviously exposes much more information to the right of access.

 (3)       However, where the authority is not required to comply with the request by virtue of subsection (1), it may nevertheless do so on payment of a fee determined by the authority.

 Comment

This permits an authority to comply with a request where it is not required to do so, if the applicant pays what will presumably be an extra fee. Clarification is required as to when information is disclosed in this way, whether the Commissioner has any jurisdiction to investigate complaints.

Clause 48 allows the Commissioner to investigate a complaint that a request has not been complied with in accordance with the Act. However, if information is disclosed when disclosure is not required, this may be regarded as a discretionary disclosure, not one required under the Act. Is this then outside the Commissioner’s jurisdiction? It is possible that an applicant would not be able to challenge any withholding of information from the disclosed information - despite having paid what may turn out to be a high fee for it.



 

Comments   

 
0 #2 RE: PAG Submission to Consultation on Freedom of Information BillGuest 2011-11-01 20:34
I cannot accept that a Crown Dependency should have entirely separate legislation to the UK. The cost of modern governance is beyond that which our island could collect through fair taxation. Therefore, I propose that our Civil Service should be an extention of the UK operation, on some matters.
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0 #1 Peel Commissioners view of Draft FoI Billroy 2010-09-28 11:59
http://www.iomtoday.co.im/news/Peel-board-critical-of-Freedom.6503601.jp
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