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Sharpe Edge features news, views and analysis from our team of specialist local government lawyers working at the heart of the latest legal developments. Sharpe Edge platform is also the only place where local government lawyers can get e-access to two law books by our Head of Local Government Rob Hann: The Guide to Local Authority Charging and Trading Powers (‘LACAT’) and The Guide to Local Authority Companies and Partnerships (‘LACAP’).

 

                                                                                                  

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The Cost of Freedom of Information – The Council’s Failure to Advise

Charlotte Smith and Nadia Ahmed summarise the case and judgement of Moss v Royal Borough of Kingston-upon-Thames and another (NJ/2018/007).Icons Court

 

Under the Freedom of Information Act 2000 (“FOIA”), a public authority can refuse an entire request if it would cost too much or would take too much staff time to deal with the request. Currently, the cost limit for complying with a request or a linked series of requests from the same person or group is set at £600 for central government, Parliament and the armed forces and £450 for all other public authorities. You can refuse a request if you estimate that the cost of compliance would exceed this limit.

Moss v Royal Borough of Kingston-upon-Thames and another (NJ/2018/007) appears to be the first time a public authority has been certified in contempt of court in an FOIA case for its failure to advise a requester to refine their request given it exceeds the cost limit. This article summarises this case, the judgment, and our comment.

The Facts

On 16 February 2016, Mr Moss made a request for information under FOIA to the Royal Borough of Kingston-upon-Thames (“Council”) concerning the Council’s redevelopment plans for the Cambridge Road Estate (“Request”). The Council refused the request on 09 March 2016, citing that it would exceed their cost limit under section 12 FOIA however, the Council had failed to give the requester reasonable advice and assistance to refine (change or narrow) their request. This provision is found under section 16 of FOIA. On the same day, Mr Moss sought an internal review of this decision. The Council communicated the result of the internal review to Mr Moss on 13 July 2016, maintaining its position.

On 7 April 2016, during the period the Council was giving consideration to Mr Moss’ request for an internal review, Mr Moss made a complaint to the Information Commissioner’s Office (“ICO”) under section 50 of FOIA. The ICO dismissed Mr Moss’ complaint in a decision notice dated 21 September 2016, having been satisfied with the Council’s explanation as to why compliance with the Request would exceed the relevant cost limit imposed by section 12 of FOIA. The ICO also considered that section 16 of FOIA had not been breached by the Council in its dealings with Mr Moss.

Mr Moss appealed to the First-Tier Tribunal against the ICO’s decision notice. In a decision dated 20 March 2017, the First-tier Tribunal dismissed Mr Moss’ appeal in relation to section 12 of FOIA but allowed his appeal in reliance on section 16 of FOIA.

The First-Tier Tribunal required the Council to provide advice and assistance to enable Mr Moss to reformulate his request within the cost limit and to do so in 30 working days (by 1 May 2017), and to disclose specified information. The Information Commissioner was a party to the proceedings, but the Council was not.

An employee (a team leader in Risk and Assurance at the Council) informed Mr Moss on 27 April 2017 that the Council would comply with the decision. Despite the Council purporting to have complied with the decision on 01 March 2021, given the delays, Mr Moss sought a certificate of an offence of contempt of court against the Council.

The Judgment

The Tribunal held that the failure to comply with its decision requiring the Council to advise Mr Moss on how to reformulate his request within the cost limit and to do so within 30 working days, constituted contempt of court. The Tribunal disagreed that not being a party precluded this; the Council was aware of the proceedings and the ICO sent the Council the decision notice.

Along with court procedural matters, the Tribunal considered whether the Council failed to comply with the First-tier Tribunal’s decision of 20 March 2017 and found that:

  • While the Council and ICO argued that in providing hyperlinks to Mr Moss and advising that “having considered these documents you will be able to make a fresh and refined request for information which would fall within the prescribed 18 hour limit” it had acted reasonably in waiting for a response from Mr Moss before suggesting to refine the response itself, it was found that the hyperlinks only dealt with one part of the Request.
  • The decision and requirements were clear and unambiguous. Despite the Council arguing that its lack of compliance was unintentional and arose from a failure to communicate.
  • The “overwhelming inference” was that the employee at the Council intentionally failed to comply with the decision. The Council was vicariously liable; the employee at the Council was responsible for FOIA responses, was employed by the Council for 14 months post-decision and acted on the Council’s behalf.

Comment

This case shows how consideration was given to the delay in complying with the Tribunal’s decision which was found to be prejudicial to Mr Moss’ rights under the FOIA regime. The information was sought by Mr Moss so that he could share it with other residents to facilitate public debate on a matter of public interest, i.e., the plans to demolish and redevelop the Cambridge Road Estate, and to assist residents to make informed decisions about whether to support or oppose those plans. The judgment found that “The effluxion of time has significantly, if not totally, dissipated the use to which this information can be put.” So, while the judgment did not turn on the facts of the timeline, it indicates the importance of adhering to the 20 working day time limit as well as any other time limits mandated.

The case illustrates the importance of the conduct of front-line staff dealing with such requests under FOIA. The employee dealing with the Request in this case was subject to a disciplinary investigation in respect of allegations which included his failure to respond to FOIA requests. The Tribunal concluded beyond reasonable doubt that the actions of the employee attached to the Council, and it shows how crucial it is to train staff to ensure that requests under FOIA are dealt with adequately.

The Council has since released a statement explaining “since this historic oversight, the council has introduced significant changes to its policies and procedures. The Council is now consistently responding to FOI requests within statutory timescales and meets the ICO’s expectations.”

The ICO guidance suggests that in advising a requestor to refine their request under the FOIA, it will generally involve explaining why the limit would be exceeded and what information, if any, may be available within the limits. As such, public authorities subject to the FOIA are expected to inform such requesters whether it holds the information specified in the request unless finding that out itself will exceed the cost the limit and must advise of ways to refine the request.

The ICO’s new commissioner, John Edwards, who recently took the position of Information Commissioner in January 2022 on a 5-year term, has stated that he welcomes the opportunity to “oversee the crucial Freedom of Information Act”. Having worked previously as the commissioner for New Zealand and as a policy advisor to the New Zealand Prime Minister on Freedom of Information, we watch eagerly to see the approach the new commissioner takes. This is further anticipated after an open letter was sent to the new commissioner and was signed by journalists, campaigners and MPs warning of the failings of the current FOIA regime, its enforcement and calling for the ICO to allocate more resources to investigate complaints in a bid to keep public authorities accountable.

Charlotte Smith is a Senior Associate and Nadia Ahmed is a Solicitor at Sharpe Pritchard LLP


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