Under the UK Freedom of Information regime, individuals have a right to access information held by a public authority. In making a request, individuals do not have to specify which documents or records they want. The focus on accessing information potentially allows individuals to access a wide range of material without having to know exactly the format of the information they are seeking.
However, with this focus on accessing information, comes much debate in the UK as to the form in which the information must be presented. Although the Freedom of Information Act 2000 (the “Act”) and the Environmental Information Regulations 2004 (“EIR”) provide that individuals can choose the form in which they receive documentation; recent cases have considered whether this extends to the indexing or presentation of documents, or disclosing handwritten notes of meetings.
Additionally, a key debate is whether the Act requires creation of new information. For example, individuals may request statistical information that does not exist separately from the “raw data” from which it can be derived. Therefore the extent to which public authorities must produce new information from information held on their databases has become a pressing question. This question has also been considered in other jurisdictions, such as Canada. Even though the emphasis under these regimes is on access to records or documents, the question of whether new records have to be created remains crucial.
The issue of creating new information has been brought to the fore by the House of Lords’ upcoming judgement on the use of barnardisation (The Common Services Agency v Scottish Information Commissioner). The House of Lords will consider whether statistical information, altered in order to protect personal data, falls under the Act or whether by applying tools such as barnardisation new information has been created.
In many cases, information, although held in some way by the public authority, may not be easily accessible. In some cases the information will have been “lost” in a poorly indexed archive. We therefore consider the Commissioner’s and Tribunal’s approaches to authorities who fail to disclose information due to poor record management systems.
Is there a choice of Form and Format?
Under Section 11 of the Act, individuals may specify whether they wish to have a copy of the information, inspect the information, or have a summary of the information. The public authority must, as far as practical, provide the information in this format; however it can take account of the cost of doing so.
In contrast, Regulation 6 (1) of the EIR provides that information must be made available to individuals in the format that they request; unless it is publicly available in another form or format; or if it reasonable for the public authority to make the information available in another format. Where the information is not made available in the format requested, under Regulation 6(2) the public authority must explain this to the complainant. Individuals have a right to appeal against this decision. The Commissioner’s Guidance on providing advice and assistance in response to requests under EIR states that “The authority must contact the applicant and explain why it is not reasonable to provide the information in the form and/or requested. If there is a choice of alternative forms/formats, the authority can explain these options and the applicant may then make an informed decision”.
The EIR does not define what is meant by form orformat, however this was considered in Keston Ramblers Association v Information Commissioner and London Borough of Bromley. In this case the complainant requested information seven separate headings. The complainant complained that as the information had not been sorted or provided in accordance with the headings in their request there was a breach of Regulation 6. The Tribunal held that the form and format requirement under Regulation 6, only referred to the physical form in which the document was held (e.g. electronic copy, paper copies, microfiche), and did not refer to “categories of subject matter”.
Therefore despite the specific provisions relating to the form in which documents must be presented under the EIR; these provisions appear to relate to the physical form of the documentation, and do not extend to presentational issues.
In Evans v ICO and MOD, Mr Evans requested information about meetings between the Minister for Defence Procurement and members of a lobbying company. The meeting was a meeting to introduce the minister to the lobbyist. Three documents existed in relation to the meeting; a formal briefing note prepared by civil servants; a handwritten note of the meeting and of a handwritten note of the subsequent telephone conversation.
The MOD argued that the exemption in Section 36, relating to provision of advice applied in relation to all the documents. This argument was accepted by the Tribunal. However, in considering whether the public interest favoured disclosure of the documents, the form in which the information is held was considered to be significant.
At paragraph 37, the Tribunal emphasised that there was “a significant public interest in seeing a formal record of the meeting”. However the Tribunal’s view was that the “private secretary’s contemporaneous, handwritten, illegible and incomplete notes was not such a record”. The Tribunal’s view was that, although brief notes may serve as an aide memoire to those in the meeting, it would not serve the public interest to disclose the information. It considered that releasing this information had a potential to mislead individuals who read the note. However, the Tribunal decided that there could be a public interest in disclosing a more formal note, depending on the content of the note. In this case, the Tribunal decided that it was in the public interest to disclose the briefing note.
The Tribunal emphasised that the duty to assist did not extend as far as to require public authorities to provide a transcript of the handwritten notes.
The Tribunal gave weight to the fact that the handwritten notes could serve only as an aide memoire to the note writer; the note included single words, without any context to explain them. It is unclear whether the court would apply similar reasoning to handwritten notes, if these were clear and full notes of the meeting.
Creating New Information-Databases
In his guidance on Section 11 of the Act, the Commissioner emphasises that there is no obligation to create new information. This follows the approach of many other jurisdictions, e.g. the US and Australia, in accepting that Freedom of Information regimes do not create an obligation to compile new documents. However, in some circumstances the Information Commissioner has held that companies should undertake searches of its databases in order to compile new information. Whether new searches have to be made is likely to depend on what raw data is held, and how easy it is to manipulate that data. On the facts of many cases where searches have been required, the Commissioner has accepted that undertaking the searches would exceed the fees threshold.
In its Decision Notice against the now Ministry of Justice in October 2006, the Tribunal acknowledged that in some circumstances public authorities may have to manipulate information in order to comply with the request. The Commissioner states at paragraph 17:
There may be situations where the ease and simplicity with which the data can be manipulated to present the actual information requested means it would be difficult for the public authority to argue that it does not hold the information. However the resource implications that would be involved in this case clearly amounts to the creation of new information.
In this case the information did not have to be disclosed. The complainant requested information about the number of claims allocated to individual Queen’s Bench masters, and the number of claims struck out by Queen’s Bench masters. As this information had not previously been compiled, the Commissioner held that the information in the form requested was not held by the public authority. The Commissioner’s view was that the public authority was not under an obligation to create new information.
This approach was also followed in the Commissioner’s Decision Notice against the Ministry of Justice in July 2007. The Information Commissioner held that the Authority did not have to disclose the statistical information requested. The requestor asked for information about the relationship between the ethnicity of those who made an appeal to the Employment Tribunal and the outcome of the case. The Ministry of Justice did not compile these statistics routinely. It therefore argued that it did not hold this information. It did, however, have some raw data that could be used to produce the information required. The Information Commissioner’s view was that the MOJ was not obliged to produce these new statistics. Nevertheless, because the complainant asked for “any or all researched data”, some of the raw data was disclosable by the public authority. In this case though, the costs of locating this information would exceed the costs threshold.
These cases should be contrasted with the Information Commissioner’s Decision Notice against the DVLA in July 2007. In this case the public authority argued that providing information about drivers’ dates of birth would involve generating new information, as it did not hold the information in the format requested by the complainant. However, the Commissioner held that the DVLA did hold the information, as dates of birth were recorded on its database. Even though the DVLA would have to raise specific searches to locate the information, in the Commissioner’s opinion the information was held by the public authority. The Commissioner accepted that locating the information would exceed the costs limit, as the Authority would have to engage its IT contractor to assist it in locating the information. The Commissioner considered that in principle some parts of the information could be disclosed without exceeding the threshold, although in fact that information fell under the exemption in Section 40.
This position can be contrasted with the approach in Canada, where under their Access to Information Act, and Canadian case law, there is some obligation to create new records, even if those records do not exist in any form.
Creating new Information: Statistical changes to documents
On 2 April 2008, the House of Lords’ concluded hearing arguments in the case of Common Service Agency v The Scottish Information Commissioner. This case related to the use of barnardisation to prevent the identification of individuals where a sample size is small. The requestor asked for information about recorded incidents of childhood leukaemia in all Dumfries and Galloway postal areas by census ward.
The CSA refused to disclose the information on the basis that very small numbers were involved in each ward. There was therefore a danger of individuals being identified. The Scottish Information Commissioner considered that the information should be released, provided that the information underwent a process of barnardisation. The process of barnardisation involves adding either 0 or 1 or subtracting 1 from small samples. Those reviewing the information would therefore have the actual figure “+” or "-" 1. In the Court of Sessions, CSA argued that they did not “hold” barnardised information and that therefore they were not under an obligation to disclose this “new” information.
The Court of Sessions held that the information, after applying barnadisation, was not substantially different from the information that CSA held. It argued that as long as individuals were aware that barnardisation had been applied to the information, the information was not new. The House of Lords’ decision on whether this information has to be disclosed under the Act is expected in June 2008. This decision may also be significant, in that it may also consider what constitutes personal data
In general the Commissioner expects public authorities to have adequate record management procedures in place. These processes should allow it to locate documents on request, within the fee limit.
The Information Commissioner’s guidance on record keeping (Awareness Guidance number 8) states that “poor record management itself is not a breach of the Act". However, the Commissioner’s view is that if poor record management causes an Authority to fail to meet any of its requirements under the Act, then he will consider using his enforcement powers. However, in cases where poor record management has caused the fee limit to be exceeded, both the Commissioner and the Tribunal have accepted that Section 12 of the Act applies. In James v Information Commissioner and others, Mr James requested a copy of the full evidence presented to the Scott enquiry. He requested the information from a number of departments that stated that they did not hold the information. It came to light that the information was archived by the Cabinet Office. However, due to the Cabinet Office’s poor archiving system, it could not locate the documentation without exceeding the fee threshold.
The Tribunal accepted that locating the information would exceed the fee threshold. The Tribunal also considered the extent of the search that was necessary for the public authority to undertake. The Tribunal held that the public authority only had to provide an estimate of whether it believed it would exceed limit. At paragraph 45 it stated “what is required is an estimate, not a search. If the estimate is such that s.12 can properly be invoked, there is no requirement for a pointless exercise at a cost of £599.” The public authority therefore did not have to conduct a thorough search to establish whether it will be able to locate the documents. The requirement was for it to make a good faith search. Therefore, even if the public authority’s good faith estimate had errors in it, this estimate would still be valid.
The Tribunal expressed the view also that it did not consider it to be its duty, or the duty of the Commissioner, to investigate the public authority’s procedures in calculating the cost of compliance. In general this decision suggests that the Tribunal will allow public authorities to rely on the fact that they have exceeded the fee estimate, even though they have exceeded the estimate due to their own bad record keeping. The decision is also significant as it states that the Tribunal will not consider in detail whether the public authority’s estimate is correct.
Guidance in the Tribunal decision of Brown v Information Commissioner and the National Archives, suggests that the Tribunal may take into account the nature of the public authority, in deciding whether they have provided enough advice and assistance to individuals. The Tribunal held that in deciding how much advice and assistance was reasonable for the National Archive to give, the court could take into account the fact that searching was a core function of the National Archive. The Tribunal held that the National Archives should have provided the requestor with more assistance in breaking down his request into smaller request to fit within the fee limit.
Lord Chancellor’s Code of Practice on records management
Under Section 46 of The Act the Lord Chancellor issued a Code of Practice to authorities on best practice in record keeping. Although the introduction to the Code of Practice states that “the Code is a supplement to the provisions in the FOIA, the Lord Chancellor’s view is that adoption will help authorities to comply with their duties under that Act”. This is reinforced by the ICO guidance. In awareness guidance No 12, the Commissioner, after describing the regime for exceeding the fee limit states that “The Commissioner expects such a circumstance to arise infrequently, as authorities should have due regard to the Section 46 Records Management Code of Practice (Lord Chancellor's Code of Practice on the Management of Records).”
However, despite this statement, the Tribunal has refused to take into account a failure to comply with the code of practice. In Randall v Information Commissioner and the Medicines and Healthcare Products Regulatory Agency, the MHRA was unable to supply information to Mrs Randall in response to her request. This was because it did not have an adequate indexing system to enable it to locate relevant documents. Mrs Randall, during argument, stated that the public authority was in breach of the Lord Chancellor’s Code of Practice, because it did not have an index to its records. Significantly, the Tribunal’s view was that the Lord Chancellor’s code of practice was not legally binding, as it was provided for guidance only.
The Tribunal’s view therefore was that locating the information would exceed the cost limit in section 12. However it did support the Commissioner’s view that the agency should take steps to re-index its records.
As the Act matures, we can see that the Commissioner and Tribunal are still working through the practical issues of form and format of information held which arise when responding to FOI requests.
In some areas, such as record management, the Tribunal has not required authorities to comply with the Act, in circumstances where public authorities’ poor record management contravenes the Codes of Practice specifically envisaged by the Act. For authorities this is comforting news: the Code of Practice is specifically recognised as just that, a code of practice and not a legal requirement.
However, in other areas, the Commissioner especially seems to be extending the scope of the Act to allow greater access to information. In some cases, he has required public authorities to essentially create new information, in order to comply with a request.
What is becoming clear is that the issue of the form in which information is held is more than just a question of whether hard copies should be made available. It involves complex considerations of the quality of handwritten notes, of statistical analysis and data mining.