HL Deb 17 October 2000 vol 617 cc1012-6

(" .—(1) A public authority may charge for the communication of any information whose communication—

  1. (a) is not required by section 1(1) because the cost of complying with the request for information exceeds the amount which is the appropriate limit for the purposes of section 11(1) and (2), and
  2. (b) is not otherwise required by law,
such fee as may be determined by the public authority in accordance with regulations made by the Secretary of State.

(2) Regulations under this section may, in particular, provide—

  1. (a) that any fee is not to exceed such maximum as may be specified in, or determined in accordance with, the regulations, and
  2. (b) that any fee is to be calculated in such manner as may be prescribed by the regulations.

(3) Subsection (1) does not apply where provision is made by or under any enactment as to the fee that may be charged by the public authority for the disclosure of the information.").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

[Amendment No. 91, as an amendment to Amendment No. 90, not moved.]

On Question, Amendment No 90 agreed to.

Clause 12 [Vexatious or repeated requests]:

Lord Falconer of Thoroton moved Amendment No. 92: Page 7, line 8, leave out from beginning to ("to") and insert ("Section 1(1) does not oblige a public authority").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Cope of Berkeley moved Amendment No. 93: Page 7, line 9, at end insert— ("( ) It shall he lawful for a public authority to apply to the Information Tribunal for an order that an applicant who habitually and persistently requests information without any reasonable grounds for such a request is a vexatious applicant.").

The noble Lord said: We come to the question of vexatious applicants. Those of us who have served in another place know exactly the sort of people we have in mind, who can become very difficult. I do not think that any of us would want to take out a provision of this character. But the question is how a vexatious applicant should be defined and identified. The proposal in the Bill is that it is someone who makes a repeated request. There are some people who deliberately and quite legitimately make repeated requests. Journalists following up a story will sometimes come back with another question a month or two later and may pursue it for some months if a situation is developing. The same is true of other people.

Therefore, we have suggested in Amendment No. 94 that the current test should be deleted and in Amendment No. 93 that a public authority should be able to apply to the information tribunal to seek that a particular individual should be regarded as vexatious for this purpose. This matter is worthy of consideration. I beg to move.

11.15 p.m.

Lord Bach

I do not know whether the noble Lord wishes to speak also to Amendment No. 94.

Noble Lords

He mentioned it.

Lord Bach

In that case I shall reply to it briefly.

Lord Cope of Berkeley

Amendment No. 94 seeks to delete the current test. Amendment No. 93 seeks to insert a new test.

Lord Bach

Amendment No. 94 would delete Clause 12(2) which allows authorities to refuse a request if the same applicant had recently been supplied with the same or substantially similar information. The removal of this subsection could allow unreasonable burdens to be placed on authorities by requiring them to respond to repeated requests from the same applicant for the same information in all circumstances.

Such a provision runs the danger of hampering the carrying out of the functions of the authority concerned, particularly in the case of a small authority. This is not the aim of the Freedom of Information Bill, and would be damaging to the cultural change which we aim to encourage in the public sector. The clause is drafted so that whether an authority has to comply with a repeated request will depend upon what is reasonable in the circumstances.

By way of illustration, if the authority is small or if the cost of providing the information is large, then it may be very burdensome indeed to require an authority to provide the same information to the same applicant once it has already done so. However, in other circumstances, say for relatively simple information provided by a large organisation, the information ought to be provided. Furthermore—the noble Lord, Lord Cope, may consider that this is important—if the information is of a sort which could be expected to change rapidly, a "reasonable interval" could be a matter of weeks, or even days. This would cover the situation, for example, of a journalist making requests say, to a local authority. Therefore, the provision provides a safeguard for authorities, but also takes account of the rights of applicants by turning on what is reasonable in the circumstances. It should be noted that the commissioner will, of course, be able to arbitrate on what is reasonable and what is not, and I am positive that she will ensure this provision is not abused. I therefore ask the noble Lord to withdraw his amendment.

As the noble Lord said, Amendment No. 93 seeks to insert a new test. The effect of this amendment would be to allow authorities to apply to the Information Tribunal for an order stating that an applicant who habitually and persistently requests information without any reasonable grounds for such a request is a vexatious applicant. This would be an additional basis on which an application need not be complied with, over and above that contained in subsection (1) of this clause.

This amendment raises two issues. In the first place it removes the obligation from authorities to comply not only with vexatious requests, but vexatious applicants. This is a significant shift. The notion of a "vexatious request" in subsection (1) of Clause 12 is intended to capture such things as supplementary requests from the same individual for further and further clarification of an original request beyond the point where any further information could reasonably be provided. In this case, the request can be said to be vexatious because no further information can be supplied.

The notion of a vexatious applicant—which the amendment seeks to add—on the other hand requires the authority to come to a conclusion as to the motives of the applicant: in the words of the amendment, whether the applicant has "reasonable grounds" for making the request. But what would constitute reasonable grounds—that the applicant had an interest, or needed to know the information?

This Bill will give to people for the first time a statutory right to information. The idea that people have to establish an interest or need to know the information before they have the right to request the information undermines the reasoning behind a general right of access. The Bill is intended to end the "need to know" culture. The amendment would introduce it again by the back door. The Government's proposals will create a right of access which we hope will be "applicant blind". The Bill does not empower authorities to scrutinise an applicant's reasons for making a request. We believe that the amendment would fatally undermine this important principle.

Lord Lester of Herne Hill

I am grateful to the Minister for giving way. I think that it follows from what he said but I want to draw attention to the report of the Select Committee on the European Union on public access to EU documents, published on 25th July. In paragraph 139 it dealt with this very problem. I served as a member of that committee. I want to clarify whether there is agreement between the committee and what the Government now say. We were there dealing with the same problem of vexatiousness and so on. The report states that a distinction can be drawn between repeat requests and requests for large documents for genuine and legitimate reasons and applications which are vexatious. If the applicant is prepared to pay the costs, repetitive costs should not be automatically rejected.

Am I right that that is the position the Government take on this Bill?, Provided that the applicant is prepared to pay, the mere fact that there are repeated requests should not be regarded as vexatious in itself. Perhaps it is a matter that needs to be considered.

Lord Bach

The answer is, "not of itself". We are not precisely on all fours with the views of the Select Committee. I am grateful to the noble Lord for reminding me of them. It is some time since I read that paragraph; I do not recall it well at this hour of night. The Government's position is slightly different. It would be worth comparing what I have said and the view of the Select Committee.

It may be that an applicant will make requests to authorities which could be inconvenient or embarrassing. However, as long as the requests are properly formulated the authority should be obliged to comply with them, subject to the conditions and exemptions carefully set out in the Bill. These already pay sufficient regard to the practical and commonsense needs of authorities in relation to the form of the application, the fees they may charge—the noble Lord, Lord Lester, spoke about that—the means by which the information is to be communicated, the time limits for communicating information, and providing appropriate exemptions for sensitive information. We do not believe that there is any need for this further provision.

The amendment raises two issues. The second concerns the effect of any tribunal's order. What effect would such an order have? Would it mean that the authority could disregard all requests the individual made? The amendment does not make that clear. However, in any case an individual could conceivably make numerous requests which might properly be regarded as vexatious, but the authority should not be released from its duty to respond to requests of substance. That is an important principle. By branding an applicant "vexatious" the amendment would allow an authority to disqualify all requests an applicant made regardless of their individual formulation. That is why we believe that it is important that the "vexatious" applies to the requests and not to the person.

It may be that this power to apply to the tribunal is intended to prevent authorities abusing the provision. However, if that is so it is unnecessary. The Bill already allows applicants who have made requests that an authority regards as vexatious to complain to the information commissioner and, if still dissatisfied, appeal to the same tribunal. This will ensure that authorities do not wrongly apply the provision in Clause 12. I believe that in this instance we have got it right. I invite the noble Lord to withdraw the amendment.

Lord Cope of Berkeley

This is an issue we must consider further with, in this case, the Law Society of Scotland which suggested the precise wording of Amendment No. 93. However, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 94 not moved.]

Clause 12, as amended, agreed to.

Lord Falconer of Thoroton moved Amendment No. 95: After Clause 12, insert the following new clause—