Thursday, December 19, 2013

How to tell if the FOI response you have received is bullshit. Part 2: cost limits, section 12

"We can't tell you because it would cost too much".

It sounds counterintuitive. But it is often not.

The basics: s12 says that if it costs more than the 'appropriate limit' to answer a request, it can be refused. There are regulations that set out the appropriate limit: £450 for most public authorities and £600 for central government.

Although the cost limits are, naturally, given in terms of money, public authorities (PA) mostly refuse the request in terms of time. This is because the formula is to calculate the value of the time spent on a request at £25 an hour. So, for most public authorities, this is £450/25 = 18 hours and for central government £600/£25 = 24 hours.

BUT, the sorts of things and activities that contribute to the cost limits are narrowly defined. At the moment (although there is a danger to FOI that this will change), thinking time is not included.

The activities that are included are: searching, locating, identifying and retrieving the data.

The other costs (but which most public authorities ingnore, unless something exceptional happens) include photocopier costs, etc. But, unless the PA holds the data in some weird way, the other costs are rarely mentioned.

It revolves around time. You will note that the FOI officer's time to log and reply to the case, the time to redact materials, time to get consent from third parties, time to get legal advice, all that sort of internal process does NOT count towards the cost limits.

When you get a reply citing section 12, a good PA will provide:
  • A confirmation of whether the information is held or not (sometimes this is not possible, but they should say something about it).
  • A calculation of how they calculated the time it took to search, locate, identify and retrieve the information.
  • A description of the form in which the information is held, which might be so say they have ten huge boxes of documents that might have the data. 
  • Advice on how to narrow the request.
If you get all of this, you can often put your bullshit klaxon away, although the devil will be in the detail.

Suppose that your local council is thinking of closing your local swimming pool. You bung in a request that asks for all of the records relating to this.

The FOI officer looks at it and thinks "I know, the leisure services dept will have this". But then s/he realises that, because this was raised at council meetings, that councillors will hold stuff. Then s/he remembers that the site is being prepared for selling to a supermarket chain - so estates will have something. Then s/he remembers that a zillion people wrote in to complain, so the customer services team will hold lots of correspondence. The communications team chucked out press releases and the public health team (which is embedded in the council) had concerns about the health impact on the community. Suddenly, the only person who might NOT have something on this is Felicity in food hygiene (but even she might have something, an email from her manager telling her not to bother inspecting the swimming pool cafe in 6 months as it won't be there). And then s/he remembers the social workers who might take their clients to the pool, the teachers and school and the numbers of people that might have something rockets up to about 10,000 (remember, a typical council employs 10k-30k people)...

Whose fault is this? You, dear requestor - you just didn't think it through. But how can you have been expected to work all of this out? Well, if you have never worked for a local council (I haven't, so I made all of this up, but I think it might be a good guess), what can you do? Phone the FOI officer and chat about it. ASK.

Otherwise, the FOI officer will end up having to say:

I can confirm that we hold some information relevant to your request. 

However, your request is very broad. I would need to contact staff in the following departments:

Council secretariat
Customer Services
Public Health

These, as well as other departments that may hold information relevant to your request mean that up to 10,000 staff would have to be asked to search, locate, identify and retrieve information. Regulations for s12 of the FOIA allow a public authority to refuse a request if compliance would cost more than £450, or on a notional value of £25 per hour, take more than 18 hours. 

If I contacted 10,000 people, each person would have 18 hours/10,000 = 6.48 seconds to undertake this search. It is plain that the search could not take place within this time limit and the 18 hour limit would be exceeded. I am therefore refusing your request. 

However, you may wish to narrow your request. You may wish to only ask for the records of the Leisure department to be searched. Within that, you may wish to ask for minutes of specific meetings or project plans, and within a narrow timescale, so as not to risk exceeding the appropriate limit with any future request. 

I should also advise that further exemptions may apply to information retrieved in reponse to a narrowed request. 

Or, take a simpler scenario. A request comes in for all of the email discussions held by the planning department about a new bill from DCLG, the Infinite Housing Bill during the first quarter of 2013. Looks nice and narrow, huh?


The FOI officer replies:

I can confirm that we hold information relevant to your request. 

Regulations for s12 of the FOIA allow a public authority to refuse a request if compliance would cost more than £450, or on a notional value of £25 per hour, take more than 18 hours. 

There are 12 members of staff in the planning department. We initiated searches using the following terms:
  • Infinite Housing Bill
  • Housing Bill
  • Housing
However, these yielded 7450 results. While we do not believe these search terms to be exhaustive, they would indicate that housing was being discussed. We took a dip sample and asked two planning staff to read 10 emails each and count how long it took to identify and copy into a MS Word document any relevant discussions. As some of the emails contained significant attachments, it took the first member of staff 34 minutes to read and search 10 emails and it took the second member of staff  22 minutes to read and search email. We therefore think that a reasonable estimate for searching the average email is 2.8 minutes.  

Searching all 7450 emails would take 7450 emails x 2.8 minutes = 347 hours 40 minutes. 

This far exceeds the 18 hour limit and we are therefore refusing your request. 

However, I do note that there were three meetings relating to the new bill. You may wish to request the minutes for these. 

The PA has to tell a good story - a detailed story that shows that they really did try to help. The reply must show the size of the task and give enough information that you can understand how to narrow the request down.

Don't take a reply that just cites the limits without a good narrative. And demand advice and assistance (see s16 of the FOIA) on how to narrow your request.

1 comment:

Rodney said...

Don't forget, in Scotland you get 40 hours. Plus all the haggis you can get.