Tag Archive for acceptable limit

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

When it comes to making FOI requests, it should be quality over quantity

FOI Man observes that while the volume of FOI requests continues to rise, their quality is not.

If you follow me on Twitter, you may have seen my Tweet on Thursday saying that my organisation had received more FOI requests in 2011 so far than in the whole of 2010. This prompted a flurry of “Me Too”s from fellow FOI Officers. The general consensus seemed to suggest roughly a 25% rise in requests this year. As unscientific as this survey is, it does suggest that use of FOI is still on the rise.

One observer sensibly commented that more requests doesn’t mean more openness. We should consider quality over quantity.

This is absolutely right. Although we’ve had more requests this year, I’ve also refused far more than ever before. Not, in most cases, due to any of the ‘Part II’ exemptions (or EIR exceptions). But my use of the s.12 provision that allows us to refuse requests that exceed the ‘appropriate limit’ has rocketed. Similarly, many requests have been refused simply because they are just too vague or don’t make sense.

Now, contrary to popular belief, I don’t sit around trying to construct new and devious ways to keep my organisation’s ‘secrets’. It’s my job to try, where possible, to answer requests. But it’s also my job to manage requests so that they don’t become an unreasonable burden on the organisation. The Act has those provisions in place to allow us to do that, and the Information Commissioner has in recent years made clear that he is supportive of public bodies who do that legitimately. After all, all public bodies are there to do a particular job, and FOI shouldn’t be preventing them from doing that job.

I always offer advice and assistance to help those who make requests that are likely to cost more than the ‘acceptable limit’ to bring their request within the limit. But often they just give up, and in other cases they respond but make it quite clear that they think I’m just giving them the run around. I’m not.

So it really helps if people make realistic requests in the first place. It saves us all time, and it avoids that nasty taste you get in the mouth when I have to refuse your request (however politely – and of course, I’m always polite – I may explain the situation to you). The key thing is to do your research first so that you can focus your request, and then try not to be greedy. “Fishing trips” are tempting, but as well as being expensive to process even if they can be done within limits, they’re quite often disappointing.

If you want to make FOI requests, you could do much worse than to take a look at my handy guide to making responsible requests. I want FOI to work, but it’s not just down to me to make that happen. It’s in your hands too.