A little knowledge

October 19, 2010

Can a local authority refuse to deal with FOI requests made through the What do they know website? Ibrahim Hasan looks at this issue and other recent developments in freedom of information.

Many local authorities receive requests for information under the Freedom of Information Act (FOI) via the website www.whatdotheyknow.com (WDTK). It is fair to say that this website is viewed with some mistrust by many FOI practitioners who see it as encouraging vexatious requests or just as encouraging people to make FOI when they would not normally do so. Many object to having to respond via a website which ensures that all requests and responses are automatically published online for the whole world to read. Can a public authority refuse to deal with FOI requests made in this way?

In June the Information Commissioner ruled on an FOI complaint involving the House of Commons (07/06/2010 Ref: FS50276715). The complainant made a request for information to the House of Commons via his account on the WDTK website. He requested a copy of a document, to be provided in electronic form. The House said it was only willing to provide the information to the complainant by way of an alternative email address. It claimed that it would not be reasonably practicable for it to provide the information to the email address generated by WDTK website, as to do so would raise copyright implications as the information provided to that address would be automatically published on the website.

The Commissioner found that responding to a valid address, in compliance with FOI is not a breach of copyright. He noted Section 50(1) of the Copyright, Designs and Patents Act 1988 Acts which states: “Where the doing of a particular act is specifically authorised by an Act of Parliament, whenever passed, then, unless the Act provides otherwise, the doing of that act does not infringe copyright.”

The Commissioner stated that the subsequent publication of the information by the website automatically can still be addressed separately by the House as a copyright issue, outside of the FOI jurisdiction.

The House also relied on the exemption in section 43 (where disclosure would harm its commercial interests as the copyright owner) but only in the event that the information requested must be disclosed to the WDTK email address. The House did not consider that the information would be exempt if it were to be provided to the complainant by way of an alternative email address or in hard copy.

The Commissioner rejected this argument. He considered that an exemption to disclosure can only apply to the specific information in question and that the same conclusion must be reached regardless of the intended address for correspondence. As the House would not seek to apply the section 43 exemption to the information if disclosed to a different email address, it cannot apply to the information if this is to be communicated to the complainant via the WDTK email address.

This decision dispels any doubt about the legitimacy of making an FOI request through the WDTK website. Public authorities cannot simply refuse a request because of the means through which it is communicated. They must apply the FOI exemptions in a balanced way regardless. Of course it can still be argued that a request made through WDTK is vexatious under section 14. Factors such as the volume of requests made, frequency of requests or language used by the applicant would have to be taken into account (see the ICO guidance on section 14 (www.ico.gov.uk)).

There have been other interesting rulings by the Information Commissioner and the First Tier Tribunal (Information Rights) recently. One involves draft reports and the other on whether the time spent redacting information before disclosure can be part of the cost estimate.

There is no special FOI exemption for information contained in drafts or unfinished documents unlike under the Environmental Information Regulations 2004. However where a draft contains information, which is held by a public authority with a view to publication in the future, it can be withheld from disclosure pursuant to the exemption under Section 22. In order to demonstrate that the exemption is engaged, a public authority must have an intention to disclose the precise information requested (not general documents) at a future point and it must be able to demonstrate what information within the scope of the request it intends to publish.

In a Commissioner decision involving Neath Port Talbot County Borough Council (Case Ref: FS50275058 05/08/2010), the complainant requested a report prepared by counsel in relation to the “reorganisation / structure of the West Glamorgan Joint Child Care Legal Service”. The council stated that the report was not concluded and was in draft form. Following the Commissioner’s involvement in the case, it subsequently stated that the report was in draft and intended for later publication. As such section 22 of the Act was engaged and that the public interest did not favour disclosure.

The Commissioner found that the council did not provide sufficient evidence to support its view that section 22 of the Act was engaged and accordingly ordered disclosure. He felt that the intention was not to disclose the initial report in its entirety but to disclose certain “key parts” of any final report. If this were the case then section 22 would not be engaged because it demonstrated that the Council did not intend to publish all of the information within the scope of the request.

The Commissioner also emphasised the importance of raising relevant arguments and evidence to back up any exemptions claimed. He noted that he may only consider the provisions of the Act when reaching his decisions and he does not consider that, in general, his role is to assume arguments on behalf of a public authority or to introduce exemptions that might be more relevant to the disputed information.

Section 12 of the Freedom of Information Act 2002 (FOI) and the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (SI 2004 No 3244) (the “Regulations”) mean that when a public authority wishes to refuse an information request on grounds that to comply with it would be over the appropriate limit (of £450 or £600), it can only take account of the costs in doing four things calculated at a rate of £25 per hour:

(a) determining whether it holds the information,

(b) locating the information, or a document which may contain the information,

(d) extracting the information from a document containing it.

The Tribunal’s second decision in the case of Alasdair Roberts v IC and Department for Business, Innovation & Skills (EA/2009/0035) offers further guidance on applying the fees provisions. The case concerned a request for lists of records and comments together with the names of the creators of the same. The Tribunal accepted the established principle (see John Jenkins v Information Commissioner and Dept for Environment, Food and Rural Affairs (EA/2006/0067)) that costs of redacting information (in this case names) are to be excluded when working out whether the request would cost over the appropriate limit. At paragraph 37 though, it qualified this as follows:

“…And where the task is as complex as it would have been in this case, we do not think it appropriate for the whole process to be ignored for cost estimate purposes simply on the basis that it could be said to fall within the broad scope of ‘name redaction’. That may be appropriate where the task is simply to locate individuals’ names and redact them if they fall below a particular grade of seniority. But where, as here, the process requires a judgment to be made, document by document, balancing the various criteria we have identified, then we believe that much, if not all, of the process should be regarded as retrieving from each document the information which requires to be disclosed and therefore properly included in the cost estimate.”

This case shows that the matters of fees and costs estimates are by no means straightforward especially when it comes to considering the cost of redacting names from requested documents. What is extraction to one person may be simple redaction to another depending on his/her knowledge and capability. Expect more arguments to come on this point.

The Freedom of Information Act is here to stay. Lord McNally, the Ministry of Justice minister responsible for it, addressed a fringe meeting (organised by the Campaign for Freedom of Information (www.cfoi.org.uk)) at the Liberal Democrat conference recently. He said that the government is examining how the Act could be extended within its present powers and where it might be extended by primary legislation. Watch this space!

Ibrahim Hasan is a solicitor and director of Act Now Training (www.actnow.org.uk). He is the course director for Act Now’s ISEB Certificate in Freedom of Information course and runs the FOI helpline.