The oldest written law currently in force in England is the Distress Act, part of the Statute of Marlborough, 1267 (sources: [1], [2][3]) – but a Law Commission document published in April 2012 reveals that after more seven hundred years on the statute book the Act came very close to being repealed.

“As indicated earlier in this Part we looked at the topics of distress and waste in the context of the Statute of Marlborough 1267 but, as explained, formed the view that it would be premature to pursue repeal of the distress chapters, pending enactment by parliament of amendments to the Tribunals, Courts and Enforcement Act 2007 following the UK government’s consultation on transforming bailiff action, and that it would be inappropriate to repeal the chapter on waste.”

Depending on the outcome of the Government’s consultation on bailiff action the Act could still get repealed. Worryingly nowhere in the Law Commission’s analysis to they really take into account the historical significance of this Act as the oldest law we have left.

The 13th century Act has the effect of stopping a person recovering damages from someone else except by order of a court which amounts to outlawing private feuds. The Act also protects tenant’s property in certain circumstances.

I am not proud of every aspect of British history but I think everyone in the UK can be proud of the positive contributions the British have made to the development of the rule of law and democracy (Magna Carta being among the most famous).We should try to save Britain’s oldest law from repeal if it all possible.

The Government’s plans to charge for FOI requests are really rather disappointing as the Government has previously had a relatively good record on FOI and in 2010, Eric Pickles even spoke out against Local Councils charging journalists for making FOI requests: “If town halls want to reduce the amount they spend on responding to freedom of information requests they should consider making the information freely available in the first place.” My aim in this blog post though is not to explain why charging for accountability is bad in principle but to explain the practical difficulties and additional bureaucracy that will result from introducing charges. Before I go any further, it is worth noting that although there can be charges for photocopying etc fees are very rarely charged in practice. The following extract from the WhatDoTheyKnow FAQ illustrates how even the present limited charging system is more bureaucratic than it needs to be. “Authorities often include unnecessary, scary, boilerplate in acknowledgement messages saying they “may” charge a fee. Ignore such notices. They hardly ever will actually charge a fee.” How much more red tape will there be if a routine charging system is implemented.

dealing with routine enquiries
One of the strengths of the present Freedom of Information Act 2000 is that you don’t need to use any magic form of words to invoke the Act. If someone ask a public body in writing for recorded information then they have made an FOI request even if they have never heard of the Act. This means that if someone emails their Local Council to ask what the opening times are for the library or for a copy of a particular form then they have made an FOI request. Public bodies often deal with these requests under “business as usual” but having front line staff even considering whether or not to charge the public for answering routine enquiries is a very unhelpful innovation.

dealing with requests for information about the handling of complaints etc
Often requests for information about how a complaint was handled are (or at least ought to be) dealt with partly under the Data Protection Act (the personal data part) and partly under FOI (everything else). The best approach is for the public body to consider the request under both sets of rules and release as much information as possible at no charge. The maximum charge for Data Protection Act requests is in most cases £10 – it would be unhelpful for public sector staff to have to apply two separate charging systems in respect of one request. Not to mention the poor member of the public already dissatisfied with the public body in question could end up paying twice to see information his/her taxes paid to create in the first place.

dealing with requests for environmental information
The UK has signed up to the Aarhus Convention which means we have to allow to access any public registers or lists of environmental information free of charge (Article 5) and in addition public authorities must make environmental information available for inspection at no charge (Article 6). The definition of ‘environmental information’ is a wide one and covers things people might not expect such as town planning, human health and safety, noise, radiation and biodiversity (see: ICO Guidance).
The upshot of all this is that a public sector employees when dealing with a request for information might have to consider providing all or part of the information under the Environmental Information Regulations even if the person requesting it refuses to pay the new FOI charge. The Government should really be trying to cut bureaucracy by making these two access to information laws as similar as possible and as simple as possible.

refunds
If you start charging for something and you don’t provide or you only provide all of it or you provide it late or there is a problem with it expect requests for refunds. Public bodies will have to have a procedure in place for deciding when to pay refunds and procedures for paying money back which could end up costing more than the modest fee the Government might be planning to introduce. Individual requesters may be more likely to request internal reviews and raise complaints with the ICO and other regulators if they feel they have not received what they have paid for. A no refunds policy might be an option but then you have to deal with the unhappy customer who finds out later that the information he/she had requested was on your website but much harder to find than it should have been.

people will ask for more information in one request
If people are charge say £15 per request they will be tempted to get as much information as they can in one go to get value for money rather than asking for what they think they need at that point in time. This will lead to longer and more complicated requests.

conclusion
A small charge for each request may seem superficially attractive as a way of covering the cost of FOI but it will cause a number of practical difficulties when we should be trying to make accessing information from public bodies as simple as possible.