The Searchers

January 27, 2011

Ibrahim Hasan looks at a recent Tribunal case that considered the extent of the search obligations imposed on public authorities by the freedom of information regime.

Section 12 of FOI and the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (SI 2004 No 3244) mean that when a public authority wishes to refuse a request on grounds that the costs of complying with it would be over the appropriate limit (£450 or £600), it can only take account of the cost in doing four things calculated at a rate of £25 per hour:

determining whether it holds the information
locating the information, or a document which may contain the information
retrieving the information, or a document which may contain the information, and
extracting the information from a document containing it.

Section 16(1) imposes a duty on the public authority to offer advice and assistance to the requestor, so far as it would be reasonable to do so. Section 16(2) provides that a public authority will be taken to have complied with its duty in this regard if it has complied with the Code of Practice, issued under section 45.

The Code states that, when the cost of compliance would be over the appropriate limit, a public authority should consider providing an indication of what, if any, information could be provided within the limit and should also consider advising the applicant that by re-forming or re-focusing their request the information could be supplied at a lower fee or at no fee. Without doing this, the Tribunal could rule that the public authority’s cost estimate has not been made on a reasonable basis (see Robert Brown v ICO and The National Archives (EA/2006/0088)).

In Dorothy Cooksey v Information Commissioner and Greater Manchester Police (EA/2010/0113) the information requests concerned documents relating to a murder investigation. Greater Manchester Police refused to provide the information on the basis that, after aggregating the requests, the costs of doing so would exceed the appropriate limit (£450). It said that retrieving the information would involve searching through many boxes of documents which were not in any particular order. The Tribunal upheld the Information Commissioner’s decision and dismissed the appeal. However it did criticise the police for their poor records management. It also made some important points about application of the fees provisions and the duty to advise and assist in section 16.

The Tribunal was satisfied that the police had properly considered whether there were alternative methods of complying with the information requests. However it agreed with the police’s view that “it is only if an alternative exists that is so obvious that disregarding it renders the estimate unreasonable”. The Appellant had suggested some alternative sources but there was no evidence to support these suggestions and the Tribunal concluded that as they were speculative, it could not accept that they were sufficiently “obvious” to render the estimate (based on the understanding that all the boxes had to be searched) unreasonable.

With regard to the duty to advise and assist, the Tribunal accepted the argument that this was not a case in which the requestor could reasonably have been advised to re-frame her request, to limit its scope or to make it in a way that would allow de-aggregation as per section 16. The Tribunal was satisfied on the basis of the evidence presented to it that the information was in so disorganised a state as to make it necessary for someone to search through all the boxes in order to find any one part of it.

The requestor also argued that there could reasonably have been a search up to the appropriate limit and that any information found in relation to her original request, even if only partial, would be useful. The Tribunal sympathised with this sentiment but ruled that it is not a correct approach to section 12. If the appropriate limit is engaged, the effect of section 12 is to disapply the duty to comply with the information request. There is no duty to supply information up to the appropriate limit. The Tribunal did not consider that the margin of difference between the compliance estimate and the appropriate limit is a relevant consideration in these circumstances.

Ibrahim Hasan is a solicitor and director of Act Now Training (www.actnow.org.uk). He is the course director for Act Now’s ISEB Certificate in Freedom of Information course and runs the FOI helpline.