Time spent redacting not relevant to FOI costs estimate, says judge

January 31, 2011

A public authority cannot – when estimating the costs of complying with a request for information and deciding whether they would exceed the appropriate limit – take into account the time spent in redacting exempt information, a High Court judge has ruled.

In Chief Constable of South Yorkshire v Information Commissioner [2011], a journalist had asked the police force about illegal firearms and for copies of any reports prepared or received by it about gun crime.

South Yorkshire Police identified two documents that fell within the scope of the request, one of which was disclosed in a redacted form to Mr Waugh. The time spent on processing this document was six hours.

However, the police refused to disclose the whole of the second document, which ran to 187 pages and contained some exempt information. The force estimated that it would take 15 hours alone just to read it and “at least twice as long” to redact.

The work involved would therefore have taken more than 18 hours, which was the maximum time South Yorkshire Police was required to spend under the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004.

The police decided to disclose pages 1 to 81 of document 2 in a redacted form to Mr Waugh. It claimed the exercise had already taken 28 hours. It therefore refused to disclose the rest.

Mr Waugh complained to the Information Commissioner. The Deputy Information Commissioner found that South Yorkshire Police could not include the time spent in redacting the documents in the maximum number of hours it had been required to spend responding to the journalist’s request.

It ordered the police to disclose pages 82 to 187 of document 2 or issue a refusal notice setting out the exemptions it was relying on.

The police appealed to the Information Tribunal on the issue of the time spent on redacting the information, but it upheld the Deputy Information Commissioner’s ruling.

South Yorkshire Police then appealed again to the High Court. At the heart of the appeal was Regulation 4(3), which limits the factors that a public authority can – for the purpose of reaching a costs estimate – take into account when deciding what it will reasonably expect to incur in relation to the request.

These are:

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.

Agreeing with the Tribunal’s decision, Mr Justice Keith said: “The statutory scheme permitted the Secretary of State to provide for how the cost of complying with a request for information is to be estimated. Section 12(5) in effect enabled the Secretary of State to provide that only part of the cost of complying with a request for information can be taken into account by a public authority when estimating whether the appropriate limit will be exceeded.

“It was pursuant to that power that the Secretary of State limited the public authority's estimate of the cost of complying with the request to the tasks referred to in reg. 4(3). There is no basis for giving the words ‘extracting the information’ in reg. 4(3)(d) a wider meaning than that which would otherwise be appropriate simply because complying with a request for information may well involve the completion of other tasks as well.”

The judge pointed out that the Secretary of State had not included in Regulation 4(3) a range of other activities along with redaction.

Mr Justice Keith added that the word “information” in the regulation relates to the information that has been requested, and not also to information which has been requested and is not exempt from disclosure.

“It follows that the words ‘extracting the information from a document containing it’….can only refer to extracting the information which has been requested from a document which contains the information which has been requested, thereby distinguishing it from the information in the document which has not been requested.”

The judge said that this begged the question whether the information referred to in Regulation 4(2), although referring to information which has been requested, includes information which has been requested and is not exempt from disclosure. “I think not,” he concluded.

Later he added: “Since reg 4(2) refers both to information which is exempt from disclosure and information which is not, there is no basis for asserting that the time spent in redacting from the relevant document information which is exempt from disclosure is to be included in reg. 4(3)(d) as well as the time spent in extracting the information in the document which was requested.

Mr Justice Keith said that this approach was “entirely consistent with the fact that although a public authority is obliged to provide the information which has been requested if the information is not exempt from disclosure, it is not obliged to rely on an exemption from disclosure if such an exemption applies to the information which has been requested”.

He added: “Thus, it is not surprising that the cost of separating the information which has been requested from that which has not should be taken into account in calculating whether the cost of complying with the request exceeds the appropriate limit, since disclosing the information is something which the public authority has to do.

“Similarly, it would not be surprising for the cost of redacting from the information which has been requested information which is exempt from disclosure not to be taken into account when considering whether the cost of complying with the request exceeds the appropriate limit, since relying on such an exemption is not something which the public authority is required to do.”

This case was one of the last appeals to go from the Information Tribunal to the High Court, as it was lodged on 30 December 2009. On 18 January the Information Tribunal became the First-Tier Tribunal (Information Rights), with appeals now going to the Upper Tribunal.

Philip Hoult