Tag Archive for Exceptions

EIRs: the exceptional regulations

FOIMan completes his exploration of the EIRs with an article on the reasons why requests for environmental information can be refused.

Just as with FOIA, requests for environmental information held by public authorities can be refused in specified circumstances. For the last few issues of PDP’s Freedom of Information Journal, I have been writing about the EIRs, and in the last of the series (available here) I look at the exceptions that can be used to justify withholding environmental information.

I’ve brought all three articles together to form a Guide to the Environmental Information Regulations so that you can easily access them at any time. This can be found in the drop down list under the ‘Free Resources’ section of the FOIMan site. All my PDP articles can also be found there on the ‘Articles’ page.

Information Commissioner signals new approach to vexatious requests

FOI Man reviews new guidance from the Information Commissioner around the controversial issue of vexatious requests.

Ever since the important decisions made by Judge Wikeley in the Upper Tribunal earlier this year, it has been inevitable that the Information Commissioner would have to change his approach to the use of the vexatious provision within FOI. Combined with suggestions in the post-legislative scrutiny last year that it should be easier for public authorities to refuse vexatious or frivolous requests, the Commissioner’s relative reticence in his guidance and decisions appeared out of step with political and legal developments.

So today, the Information Commissioner’s Office (ICO) has published new guidance on Dealing with Vexatious Requests (section 14(1)), as well as on the related subjects of Manifestly Unreasonable Requests (regulation 12(4)(b) of the Environmental Information Regulations) and Repeat Requests (section 14(2)). And the approach of the Commissioner appears to have changed fairly radically. The guidance starts strongly by stating that:

 “…public authorities ought not to regard Section 14(1) as something which is only to be applied in the most extreme circumstances, or as a last resort. Rather, we would encourage authorities to consider its use in any case where they believe the request is disproportionate or unjustified.”

The emphasis now is on requests which “cause a disproportionate or unjustified level of disruption, irritation or distress”. Out have gone the Commissioner’s notorious 5 questions. In their place come 13 – count ‘em – 13 “indicators” based on the ICO’s experience of dealing with section 14. These aren’t “qualifying criteria” and authorities are discouraged from spending too much time trying to fit the facts to them. It is stressed that they are there purely as a handy guide.

The guidance suggests a process for establishing if a request causes a disproportionate or unjustified level of work. Authorities should:

  1. consider the purpose of the request if apparent and any wider public interest
  2. balance this against the impact on the authority
  3. take the context and relevant history into account

The ICO have taken some key areas of contention and talked about how they might be affected by this new change in emphasis.

Burdensome requests should if possible be refused under section 12 (the acceptable cost limit). However, following on from last year’s Salford City Council v Information Commissioner Tribunal decision, the ICO now accept that section 14 could be used to ‘plug the gaps’ in the fees regulations, for example, where redaction would take a long time (redaction can’t be included in cost estimates for the purpose of section 12). It is clear though that the ICO will take some convincing in particular cases before accepting this use.

Round Robins, requests sent to several authorities at once, are mentioned. Public authorities can point to the fact that a request has been sent to other organisations, but the judgment as to whether a request is vexatious must only be made on the basis of the burden on themselves.

Controversially, perhaps, “fishing expeditions” are singled out, and journalists identified as the main perpetrators. This common tactic – where a requester makes a very broad request in the hope of catching a juicy titbit in their net – is widely criticised by public bodies, and one senses that the Commissioner has finally found a way to offer a modicum of reassurance to authorities on this issue. Whilst the Commissioner stops short of saying that all such requests will be vexatious (and indeed adds the usual caveats), it is interesting that the practice is highlighted as an area that might legitimately attract the use of section 14.

The guidance isn’t all one way. Authorities are warned that they need to “absorb” a certain amount of disruption and annoyance. And the guidance often seems to go out of its way to persuade public bodies to try just about anything else to avoid section 14. A whole section is dedicated to “Alternative approaches”. Nonetheless, the guidance does seem to indicate a significant change of emphasis from the ICO, and one that will be welcomed by many public authorities.

If you’re still hungry for more after all 37 pages on section 14(1) of FOI, there is still the guidance on manifestly unreasonable and repeated requests to digest. Handily for both the ICO and busy FOI Officers, Judge Wikeley found that the exception for manifestly unreasonable requests in the EIR should be interpreted in the same way as section 14(1) of FOI. So the first part of the ICO guidance says just that – if you think a request for environmental information is effectively vexatious, you should follow the guidance on vexatious requests under FOI.

It does however spend more time considering how the exception should be applied to requests that would be expensive to answer. In a nutshell, there will be circumstances where it is appropriate to refuse burdensome environmental requests under this provision (as Judge Wikeley noted in Craven), and section 12 (and the related fees regulations) of FOI may provide some pointers, but authorities should expect to provide more environmental information than they would other information.

The guidance on repeated requests (FOI section 14(2)) uses new improved examples to make the same points that have been made before. There is nothing fundamentally new here to take on board.

Interestingly, tied in with all this new guidance for public authorities is a guide for requesters on How should I word my request to get the best result? How can I describe it? It’s…it’s…well, it’s a sort of Code of Practice for requesters on the best ways to avoid being labelled as vexatious. That reminds me of something…. (see Recommendation 7)

Anyway, the guide contains some handy dos and don’ts and advises requesters that their request will be more effective if it is CLEAR, SPECIFIC, FOCUSED, UNTHREATENING. Whilst those are the ICO’s capitals, many FOI Officers would probably add SPARSELY CAPITALISED. Seriously though, it will be helpful if more prospective requesters can be pointed towards guidance like this.

So overall this new guidance will be welcomed by FOI Officers, though with some reservation. Whilst it answers a lot of questions, some may well ask how a single sentence in the Act can require so many pages of explanation. There are points where the ICO appear to want to have their cake (to be seen to encourage public authorities to utilise this provision) and to eat it as well (to be seen to discourage its use). One can understand why the regulator has difficulty here, but it limits the comfort that might be offered to authorities by this guidance. And until we see decisions of both Commissioner and Tribunals backing the approaches spelt out here, many will remain nervous of using this provision. But this is a significant step in the right direction.

When can public authorities charge for FOI requests?

FOI Man looks at when a public authority is allowed to charge for FOI requests, and how such charges must be calculated.

Some further education institutions appear to be charging for FOI requests. In one case, the college is routinely charging £75 per request. In another, they are charging £25 per hour. Let’s be clear, this is NOT legitimate.

What can public authorities charge? Well, if they estimate that providing the information will cost more than ‘the acceptable limit’  (currently £600 in central government or £450 for all other authorities),  then they have a choice of either refusing to provide the information (in line with s.12 of the Act) or charging the full estimated cost. In estimating the cost, they can only consider the time and money it would take to:

  • determine if they hold the information;
  • locate the information;
  • retrieve the information; and/or
  • extract the information from a document containing it.

They can’t include redaction or time spent considering exemptions in their estimate of the cost. In estimating the cost, they have to calculate staff time on the basis of £25 an hour – the regulations stipulate this. This figure, of course, appears to be the basis of one of the colleges’ confusion. It’s also the basis of the rule of thumb that public authorities (outside of central government) operate of the ‘time limit’ for FOI being 18 hours (£450/£25=18). (It’s obviously 24 hours in central government – £600/£25=24).

They are allowed to charge  ‘disbursements’ for things like photocopying, paper, CD-ROMs etc. for any request. This right is very rarely exercised in my experience, but may be on the rise in the current climate.

The Environmental Information Regulations (EIR) are subtly different, but in effect, largely the same. Charges can be made, but case law has made clear that this is really only for disbursements again (photocopying, printing, etc). There is no direct  s.12 equivalent allowing refusal on grounds of cost, but often authorities will argue that the exception (the EIR term for an exemption) for requests which are ‘manifestly unreasonable’, can be used to refuse requests which will be expensive to comply with.  DEFRA’s guidance and case law appear to support this.

In summary, public authorities cannot charge a standard fee for FOI or EIR requests – they can only charge for disbursements or for requests which cost more than the ‘acceptable limit’ (£600 for central government; £450 for all other public authorities). At least, that’s the situation at present – it remains to be seen whether the outcome of the Government’s post-legislative review of FOI will be changes to the charging arrangements for requests.

If you don’t use it, you won’t lose it

If you think about FOI as a children’s colouring book (just go with me on this), the lines were drawn by the legislation. The decisions of the Information Commissioner, Information Tribunals, and the courts add the colour, taking great care not to go over the lines. FOI Officers are not lawyers (in the main), but if we’re to be effective, we need to keep an eye on these decisions. Sometimes they can be very interesting, especially if you’re an FOI geek like me.

For those who aren’t familiar with the FOI appeal process, here’s a brief précis. If a public body refuses your request, you can ask it for an internal review of the decision. If they still refuse, you can appeal to the Information Commissioner. At that point, the Commissioner can either uphold the authority’s decision, in which case, you can appeal to the Lower Tier of the Information Tribunal, or he can instruct the authority to disclose the information, in which case, they might appeal to the Tribunal. Further appeal can then be made to the Upper Tier Tribunal (you used to go to the High Court on points of law at this stage), and if there are still points of law at stake, you or the authority concerned can appeal to the Court of Appeal. And then to the Supreme Court. Let’s not go any further or the Daily Mail may get excited.

Last week I was fortunate enough to attend a free seminar given by 11KBW (whose blog on information rights law, Panopticon, is well worth a look) on latest developments in information law. One of the barristers speaking, Robin Hopkins, explained the implications of a decision made by the Upper Tier of the Tribunal, and I sat up sharply in my seat. The decision related to requests submitted to the Department for the Environment, Food and Rural Affairs (DEFRA) and the Home Office. I’ve been thinking about it ever since, and sad as it may seem, I spent some of my Sunday afternoon reading the full decision.

The Upper Tier Tribunal was looking at an issue that has troubled a few sittings of the Tribunal. When a public authority refuses to provide information, it must write to the applicant and explain which exemptions apply and how it has reached that decision. But what happens if the applicant appeals to the Commissioner, or even the Tribunal? Can the authority suddenly decide that another exemption, not already relied upon, is relevant?

Previous Tribunal decisions have suggested that it is entirely at the discretion of the Commissioner or the Tribunal to decide on this. The only way that an authority could guarantee that an exemption would be taken into account would be if it had included it in its response to the applicant. In other words, “use it or lose it”, which explains why many authorities throw everything including the kitchen sink at requests for particularly sensitive information. The new Upper Tribunal decision from Judge Jacobs takes a new line. He ruled that authorities have the right to introduce new exemptions at a later stage. This would mean that the Commissioner and the Tribunal have to consider exemptions (or exceptions under EIR) raised late in the day by authorities.

This sounds at first hearing to be a bit lenient on public authorities, and I can understand (and so could Judge Jacobs to be fair) why it won’t go down well with some observers. But I also think that it’s the right approach.

The point is that exemptions are usually there to protect other individuals’ and organisations’ rights. As Jacobs points out:

“If [the public authority] is not allowed to change its position to rely on another exemption, this may hamper a full consideration of the public interest and prevent the interests of third parties being taken into account.” (GIA/1694/2010 and GIA/2098/2010, para. 29)

Let me illustrate this through a hypothetical situation. Somebody has requested details of a meeting between the police and a government body about knife crime. One of the attendees was a family member of a victim of knife crime, there to describe their experience. It was a traumatic and difficult experience for them, but they agreed to take part on the understanding that their involvement wouldn’t be known outside the meeting. The authority refuses the request on grounds of s.31 (law enforcement), but when it gets to the Commissioner, he rules that while the exemption applies, the public interest is in favour of disclosure. The authority then realises that it should also have claimed s.40 (personal information) and/or s.41 (information provided in confidence) in respect of the details of the member of the public who had had such a traumatic experience. Does the Commissioner rule that the details of that person should be disclosed, purely because the authority had failed to raise the need for the exemption in their original response?

Of course not, and in fairness to the Commissioner, it is likely he would have used his discretion to allow the use of the exemption in this situation. But Judge Jacobs argues that it is only by analysis of individual circumstances that it will be possible to identify whether exemptions should be allowed. If the Commissioner or Tribunal used their discretion not to allow late use of exemptions, they might not give sufficient consideration to important issues affecting third parties.

In fact, the ruling suggested further that:

“…it is necessary for the Commissioner to take the initiative in appropriate circumstances and to do so as a matter of duty, not of discretion.” (GIA/1694/2010 and GIA/2098/2010, para. 49)

In other words, the Commissioner also has a duty to identify exemptions that might apply that the authority has missed. This again, makes sense, however unpalatable it may be for the Commissioner’s Office. Surely they have to ensure that their decisions don’t cause harm (or prejudice, to use the legal jargon), and that has to mean looking beyond just what the public authority may have argued. After all, shouldn’t the Commissioner’s staff be better informed than most on the application of exemptions?

I can’t say whether the information requested in these cases should have been disclosed or not (that wasn’t looked at in the ruling). But I do think that Judge Jacobs got it right on this important, if technical, point.

Exemptions (or exceptions) either apply or not. He argues that information and the exemptions that protect them are “intimately connected”. Sensitive information shouldn’t lose its protection just because of human error at an early stage in dealing with a request. If you don’t use exemptions, you won’t lose the opportunity to introduce them at a later stage. This decision is particularly important because of its recognition of the practicalities of managing the FOI process:

“Legislation has to be interpreted so that it is workable. No administration is perfect. Documents can be misplaced, overlooked or difficult to find. Officials may fail to identify the potential application of exemptions.” (GIA/1694/2010 and GIA/2098/2010, para. 35)

I can’t imagine that I’m the only FOI Officer who will appreciate this recognition of the realities of how FOI works in our organisations. Nobody’s perfect, and third parties certainly shouldn’t have their rights infringed just because of that eternal truth.