FOIMan spots a very strict interpretation of s.14 of FOIA in a recent ICO decision notice.
Readers will be aware that amongst the tools available to practitioners concerned about the burden that FOI requests impose on public authorities is s.14(1) which enables public authorities to refuse requests that are vexatious. Since the Upper Tribunal (UT) decisions in the Dransfield and Craven cases, it has been well established that:
‘In principle…there is no reason why excessive compliance costs alone should not be a reason for invoking section 14…whether it is a “one-off” request or one made as part of a course of dealings.’ (Craven v Information Commissioner and DECC  UKUT 442 (ACC) para.31)
The Information Commissioner has always been uneasy with this position, concerned that s.14 should not be a way to bypass the restrictions on the use of the cost limit at s.12. In their guidance they stress that public authorities should use s.12 where possible, and only use s.14 if it isn’t.
However, in a recent decision (FS50846693) I think I’ve noted a hardening of the Commissioner’s line. The utilities regulator Ofgem had been asked for emails received by their chief executive and a director. They had refused the request using s.14(1). When the Information Commissioner investigated they provided an estimate of roughly 20 hours per inbox to retrieve and review the requested emails (or 40 hours in total). Ultimately the Commissioner ruled that s.14(1) did not apply as the amount of work involved was ‘at the lower end of the scale of what may be considered grossly oppressive’, which is probably a fair assessment.
The statement that I found surprising was at paragraph 36. The Commissioner was critical of Ofgem’s estimate of the time that it would take to retrieve the emails, adding:
‘In any case, this activity would be covered by section 12 and should not be included in any estimates when refusing a request under section 14(1)’
I’ve always understood that the ICO line was that before looking at s.14, an authority should consider whether s.12 applies. That makes sense and is in line with the rulings of the UT. This seems to be suggesting that if an authority has decided that it can’t rely on s.12 to refuse a request, it can’t then include any of the activities listed in the fees regulations (establishing whether information is held, searching, retrieval or extraction) in an estimate of the impact of a request being put together to justify refusal under s.14(1).
The ICO’s guidance on vexatious requests notes that review and redaction of information cannot be taken into account when estimating the cost for s.12 purposes, and that s.14(1) might therefore be used instead where the review and redaction of a request imposes a ‘grossly oppressive’ burden. However, the guidance doesn’t – as far as I can see – preclude the possibility of including other activities such as those listed in the fees regulations in any demonstration of this burden.
To illustrate the issue, imagine a request where it is estimated that the cost of search and retrieval is £425 (or 17 hours of staff time), and reviewing and redacting the material would take, say, 36 hours. It would not be possible to refuse the request on cost grounds since for most public authorities the limit is £450 (or 18 hours of staff time). Yet it would be unlikely that the ICO would accept an argument that 36 hours of work constituted enough of a burden to refuse the request under s.14(1). In practice though the public authority is estimating that it will take 53 hours (or one and a half weeks) of staff time to answer this request. For most authorities losing a member of staff for well over a week would have a huge impact on their ability to deliver services. There is a risk that the ICO’s new approach – if it is a new approach – would leave authorities stuck between two stools in some cases.
Is this a mistake? Or is the ICO seeking to push a harder line on use of s.14(1) for burdensome requests?
I’ve written an article for the Freedom of Information Journal looking at all the ICO’s decisions in relation to s.14 and burdensome requests in 2019 which will be published later this year. Watch this space!