In this post in the Exemption Index series, FOI Man looks at the absolute exemption at section 21 of the Freedom of Information Act 2000
“An Act to make provision for the disclosure of information held by public authorities…” Freedom of Information Act 2000, long title
So why not ask your local authority for a copy of any book they hold in one of their libraries? (Assuming they still have them, of course). And given that through the internet, all public authorities have access to all the world’s websites, why not use a public authority as your own personal research unit?
The answer is section 21. This exemption means that public authorities don’t have to provide requested information that the requesters could reasonably easily obtain for themselves.
It also acts as a carrot to encourage public authorities to publish more information. If requested information is in their publication scheme and/or on their website, they won’t have to supply it. Also, if an authority sets out how much it charges for its information in its publication scheme – in theory it can charge what it likes for access to that information.
The big question for both FOI Officers and requesters is…what is “reasonably accessible”?
Any information that is publicly available, even if it has to be paid for (though see discussion below). Information that public authorities are legally obliged to communicate. Information listed in a public authority’s publication scheme.
Things that FOI Officers need to know
- If refusing a request using this exemption, you must provide advice and assistance to the requester (FOI, s.16) on where they can obtain the information from
- If the information is to be found amongst lots of other information on a website, you must explain where on the website the specific information can be located (Ames v Information Commissioner and the Cabinet Office, para 19). In other words, if it is on a website, give them a link to the specific document that contains the relevant information, and if necessary explain what page of that document the information is on.
- If you’ve said in your publication scheme that you will charge for a particular publication, the exemption will apply even though the information is only available for that charge [if the charge is paid?] – recent case law suggests that there is no limit in these circumstances (Davis v Information Commissioner and the Health and Social Care Information Centre, para 26), though the Commissioner could arguably revoke approval for particular kinds of information if he was unhappy with the level of the charge
- Arguably the level of charge will be important in other situations where information is only available for a charge, but what case law there is supports the idea that generally speaking, authorities can refuse requests even where there is a significant cost to access the information.
- The Information Commissioner’s guidance suggests that, for example, if a piece of information is in a publication such as an annual report, but it is only a very small item of information, it would not consider the need to purchase the whole report as being “reasonably accessible”.
- Information that is only available through inspection on the authority’s premises is not “reasonably accessible” (FOI, s.21(2)(b)), unless it is listed in the publication scheme as only being available through that route (so it is a very good idea for publication schemes to include public registers and archives).
- The location of the requester may be significant in deciding whether something is reasonably accessible. If your office is in Kent, and the requester is in Newcastle, that might mean that a requirement to visit your office to see the documents is not making them reasonably accessible. However, the Information Commissioner does accept that there will be circumstances where copies can’t be made even for a requester a long way off (eg fragile documents held by a Record Office).
- If a requester has a disability, that may also affect whether or not information is reasonably accessible. Authorities need to consider their duties under the Equalities Act 2010 to make reasonable adjustments. A requester with particular disabilities may not be able to visit an office a distance from their home.
Things that requesters need to know
- If you think that your circumstances would affect whether or not information is reasonably accessible (eg you have a disability that would prevent you accessing information in the public domain, or you live a long way from an office where the information is made available) you should include this information in your request (you don’t have to, of course, but an authority can’t make adjustment for your circumstances if it doesn’t know about them).
- If an authority is claiming that the information is reasonably accessible because it is in a publication scheme even though it is very expensive, consider whether the information is environmental information. The Environmental Information Regulations (EIR) require charges to be reasonable, and it is possible that a challenge under EIR would be more successful than a challenge under FOI.
- If you think that the FOI Officer hasn’t given you enough advice to be able to find the specific information, point out to them that they are required to provide advice and assistance. Reference to the Ames decision may also help your cause.
- If the information is published by the authority, but is only available at a significant cost, check that it is listed in their publication scheme at that cost.
- If information is available from that or another public authority at a significant cost but it is not listed in their publication scheme, it may be worth challenging in some circumstances. The Tribunal in Davis suggested that it was sympathetic to the Health and Social Care Information Centre’s charge because it made available lots of other information and the charge reflected the work involved in producing it. But that may mean that a Tribunal would be less sympathetic in circumstances where the authority was charging a disproportionate amount for a publication and hadn’t made available as much as it could at no cost.
Essential case law
- Ames v Information Commissioner and the Cabinet Office, EA/2007/0110, 24 April 2008
- Davis v Information Commissioner and Health and Social Care Information Centre, EA/2012/0175, 24 January 2013
- Information Commissioner’s Awareness Guidance on information reasonably accessible to the applicant by other means
FOI Man says…
- Should I be working for private businesses? (14 December 2010)
- How to make an FOI request (25 October 2010)
I want to disagree with your last bullet in the FOI officers section on a point of law – section 11 applies to information to which he applicant is entitled, meaning that the exemptions have to be applied first in order to see whether the applicant is entitled to that info or not. If the information (regardless of format) is reasonably accessible to the applicant by other means then Section 21 applies, and there is therefore no need to consider the applicant’s stated section 11 preference. Further details on the application of this argument can be found in Decision Notice FS50384351…
Many thanks for your ever useful useful posts – this blog is a fantastic resource for all FOI practitioners!
Many thanks for commenting, and glad you enjoy the blog.
You’re not the only one to comment on that point about s.21/s.11 so I’ll amend it.