As my last blog on vexatiousness got a positive response, I thought I'd take the easy option and repeat the exercise. This time I’m looking at another part of the Act which raises the hackles of requesters everywhere, Section 12 and 'Appropriate Limits'.
Like Section 14, Section 12 'Exemption where cost of compliance exceeds appropriate limit' is not an exemption as such, just a grounds for refusal. If you haven't seen this already, FOI Man gives a very good overview of Section 12 and how it is used. Basically, if pulling the information together for a request will take more than 24 hours (in the case of central government) and 18 hours (pretty much everyone else) to complete then it can be refused.
Section 12 is often where the FOI officer gets caught between the requester and the organisation. The requester can't believe that pulling the information they have requested will exceed 18/24 hours; departments within the organisation can't believe that it won't.
The methodology is the same as before, using the Information Commissioner's Decision Notice (DN) pages to count:
1) the number of times S12 had been included in a DN by year
2) the breakdown of whether it was upheld (the authority was wrong in applying s12), not upheld (the authority was right) and partially upheld (neither here nor there)
3) the type of public authority involved in the DN. I used very broad categories of central gov, local gov, police, NHS, education and 'other' (which included the BBC, ICO and TFL)
Like all data sets, this does not produce a 'clean' answer. Not every complainant decides to go all the way to the ICO. They may be satisfied by a compromise or simply give up. Not every complaint that reaches the ICO results in a DN.
The results suggested the following conclusions:
1) Whilst I used the number of Section 14 DNs (165 over 7 years) to postulate that the exemption wasn't engaged very often, I believe it's different for Section 12. I counted 185 in total, upheld and not upheld over 7 years (including 2011) of FOI. I think that this reflects the way Section 12 is used by public authorities. Whilst using s14 vexatious is often an outright refusal and the end of the conversation, applying s12 can often be the beginning of a dialogue, narrowing down the request to what is achievable to the authority and useful to the requester.
2) The increase is quite modest, stable in 2007 (20) and 2008 (22), then a rise to 2009 (48) and 2010 (50). 2011 (34) looks like it may eventually exceed the 2009 and 2010 totals but not by much. In the context of the overall increase in requests, does this mean requesters and authorities are clarifying between themselves more? Are requesters getting more reluctant to challenge Section 12 or learning to 'target' their requests better? Are authorities not relying on it as much?
3) The ICO is in most cases supportive of public authorities when it comes to a Decision Notice. Around 82% of DNs dealing with S12 come down on the side of the authority. Like Section 14, Local Government is the most contested with the ICO siding with LAs only 66.7% of the time. Are LAs not as 'good' at applying Section 12? Is the ICO just harder on local authorities?
4) Central Government - interestingly, as it has the higher appropriate limit threshold - was involved in most (over a third) of the Section 12 DNs. In 84% of these the ICO sided with the authority and in only 6 of 68 cases the requester's complaint was upheld. Do requesters make more wide ranging requests ('all documents, correspondence, and memos since 1998...') to central gov? Is central gov simply 'better' at applying s12 correctly? Or is s12 a reflection on the way central gov holds its data? Even if an authority applies s12 'correctly', it may reflect that the data is not held in a way that makes it easier to answer requests. This is a theme running through the recent 'Open Data' consultation, and while I think it's too simplistic an argument (most public sector IT systems were procured to deliver an internal business need as cheaply as possible, and the functionality to produce re-usable anonymised open data for public development was often not considered), the 'way we hold our data' is often behind many applications of s12.
5) Local Gov (19.5%) and Police (15.1%) follow up, though there is a rogue 16.8% in my 'other' category (BBC, TfL etc) which I think reflects the hurried nature of my categorisation rather than anything else.
1) I've not had time to go into detail on the DNs themselves, though it was worth noting that a lot of other exemptions were often involved in these requests. Often s12 may only be relevant to one question in a multiple question request.
2) Beyond a broad presumption, these quantitative stats can't show some of the good 'qualitative' clarification work that goes on between FOI officers and requesters to understand what is asked for and what can be provided. I think a lot of this goes on, I'm not sure how much on WDTK as opposed to individual email-to-email requests.
3) The Open Data consultation has mentioned extending the threshold for appropriate limits. This should, in theory, reduce the number of s12 DNs in the future. But as we have seen, central government, with its higher threshold, has the highest proportion of s12 DNs - and almost all of them endorsed by the ICO! I'm not sure raising the threshold would be much more than symbolic at best and at worst not in the best interests of either authorities or requesters. I think I'd rather see more focus and guidance on 'clarification'.
Well, like a 60s novelty act, I've recycled my one hit blog post into a sound-alike follow-up. Back into obscurity now...