How long is a piece of string? The appropriateness of search time as a measure of 'burden' in Access to Information regimes

摘要

Access to Information regimes are under unremitting challenge from state actors. This article is the first to directly explore the 'cost limit' often included in Access to Information regimes, where requests can be refused by a Public Authority on the basis of an estimate that it would take too long to locate and extract the requested information. The validity of such estimates is particularly important in light of electronic information systems where search times are dependant upon technological expertise. This article presents a qualitative study of decisions made by the United Kingdom's Information Commissioner, where decision notices concerning the 'cost limit' are examined to identify technological errors. These technological errors were found to arise from specific practices of the Commissioner in 40% of cases where an estimate of the Public Authority was accepted. The author demonstrates that the concept of estimating the time taken to find information from an electronic information system is an objectively inappropriate means for estimating the burden placed on a Public Authority. Through the use of mathematics, it is demonstrated an estimation regime based on the volume of information requested is more appropriate as an alternative. From a wider regulatory perspective, this article also demonstrates that it would be highly desirable for Access to Information regimes to be regulated alongside data protection concerns, given the strong overlap in respect of the relevant technological issues.