The Exemption Index: Section 12 – refusing on grounds of cost

In this post, FOI Man looks at the provision within FOI to refuse requests which exceed “the appropriate limit”.

Summary

It’s the constant lament of some public authorities and critics of FOI. FOI costs money. It’s a drain on resources. Well, yes, but as you and I know well, it is also of considerable value and can help the taxpayer to hold those authorities to account.

Nonetheless, they’re right. FOI does cost money. And if there were no limits on what authorities had to provide, there is a risk that they would grind to a halt. Hospitals would cease caring for the sick so that they could answer FOI requests. Children would be sent home from school so that teachers could complete their FOI homework. The Prime Minister would be busily redacting his own correspondence when he wasn’t answering MPs’ questions.

Section 12 is therefore an essential tool – a tap to regulate the flow of FOI requests and their impact. But to requesters it is often seen as an easy way for public authorities to avoid difficult questions.

Information affected

Any information – it depends on how much is asked for, how difficult it is to locate, and how long it would take to extract.

Things that FOI Officers need to know

Things that requesters need to know

If you want to avoid a section 12 response:

  • don’t be greedy – keep your request tight and focussed
  • do research first – can you find out how the information is likely to be held?
  • read my handy guide to making FOI requests

It may well be worth challenging a response if:

  • the estimate and/or reasoning behind the estimate seem unreasonable
  • it doesn’t explain how to bring your request within the acceptable limit
  • it doesn’t tell you what the estimate is (the authority isn’t obliged to, but if its a reasonable estimate, they shouldn’t really have a problem with telling you)
  • you’ve asked several unrelated questions but the estimated cost of answering them has been aggregated
  • the authority has given you a subset of the information you requested but did not ask you first whether you would like that information, or would prefer to narrow your request in an alternative way (this is a breach of the section 16 duty to advise and assist).

Essential case law

Fitzsimmons v IC and DCMS (EA/2007/0124)

Quinn v IC and Home Office (EA/2006/0010)

Chief Constable of South Yorkshire Police v Information Commissioner, [2011] EWHC 44 (Admin)

Craven v IC and DECC, [2012] UKUT 442 (AAC)

Recommended reading

Requests where the cost of compliance with a request exceeds the appropriate limit, Information Commissioner’s Office, version 1.1, September 2012

Wadham, J et al (2011), Blackstone’s Guide to the Freedom of Information Act 2000, 4th ed.

FOI Man says…

What can public authorities charge for Freedom of Information requests?, 11 July 2011

MOJ costs study – third strand of post-legislative scrutiny research, 26 March 2012

2 comments

  1. Alistair Sloan says:

    Excellent post, as always! It is worthwile pointing out that requests that are tight and focussed can still fall outside of the appropriate limit. I’ve seen examples of requests that are so specific that the cost of locating, retrieving and extracting the information exceeds the appropriate limit. They are rare though, but worthy of note 🙂

    • Paul Gibbons (FOI Man) says:

      Thanks Alistair. You’re absolutely right – it’s a tricky one, as requesters are not to know how information is organised, so difficult to avoid the s.12 trap. But a bit of research can help there – can you first make a request for file plans or information about how the information is held? Martin Rosenbaum, the BBC FOI expert, suggests asking for a blank form relating to a particular process – because then you know what information is held and how it is likely to be organised. Won’t work in all cases, but that kind of prior research can help avoid hitting that s.12 limit.