On 31 July 2014 the Court of Appeal handed down its judgment in Innes -v- (1) Information Commissioner (2) Buckinghamshire County Council  EWCA Civ 1086.
The Court of Appeal held that a person making a request for information to a public authority under the Freedom of Information Act 2000 was entitled under s.11(1) to specify a preference for the software format in which information in electronic form was to be provided.
In light of this judgment, which departs from prior ICO guidance, public authorities are now required to adapt their practice in responding to requests to ensure that requests for information to be provided in a specific software format (e.g. Microsoft Excel) are accommodated where reasonably practicable to do so.
The greater access to, and manipulation of, usable electronic data by the public that is likely to follow, furthers the philosophy of the FOIA - but presents challenges and risks for public authorities and also calls into question whether the recent ‘dataset’ amendments made last year to the FOIA now serve any material purpose.
Mr Innes requested information from Buckinghamshire County Council about the ‘11-plus’ school exam. He subsequently informed the council that he wanted to receive the information in a Microsoft Excel spreadsheet. The Council provided the information, but in PDF format. Mr Innes was not happy with this response and took his complaint to the information commissioner.
The focus of the complaint was whether the council’s response complied with s.11(1) of the FOIA. Section 11(1) provides that public authorities shall, so far as is ‘reasonably practicable’, accommodate an applicant’s preference to have information communicated to them by a certain means. Such means are stated to include the provision of ‘a copy of the information in permanent form or in another form acceptable to the applicant’.
The information commissioner did not uphold Mr Innes’ complaint and his subsequent appeals to the First-Tier Tribunal and Upper Tribunal were unsuccessful. In the broadest summary, Mr Innes’ complaint was rejected on each occasion on the basis that the s.11(1) duty only applied to a preference for an electronic or hard copy, not a preference for a particular electronic format. Therefore, by providing the information to Mr Innes in an electronic format – albeit PDF rather than Microsoft Excel – the council was considered to have complied with s.11(1).
Court of Appeal
Mr Innes, despite having already lost his argument three times, appealed to the Court of Appeal. Although appearing before the Court of Appeal in person and with no legal representation, Mr Innes succeeded on his fourth attempt. The Court of Appeal found that Mr Innes was entitled to specify a preference for the specific software format in which information was to be provided.
Underhill LJ, who gave the leading judgment, embarked on a detailed and at times otiose examination of the language of s.11(1), part of which he himself described as ‘an entirely self-imposed detour’. The path taken by Underhill LJ may have been long and some of the waypoints dubious (with Longmore LJ disagreeing with Underhill LJ’s analysis of what is meant by ‘permanent form), however, his final destination did meet with the agreement of his fellow judges.
Ultimately, Underhill LJ focused upon the natural meaning of the words of s.11(1) and concluded that the specific software format in which information was provided was an aspect of the ‘form’ that could be specified by the applicant. He agreed with Mr Innes’ submission that such a reading fits with the apparent philosophy of the FOIA. As a matter of policy, Underhill LJ felt that enabling citizens to make use of public information was to be preferred to restricting such use and that the interests of public bodies were sufficiently safeguarded by the qualification that they need not accommodate applicants’ preferences where it was not reasonably practicable to do so.
In light of Innes, applicants’ rights to insist upon receiving information in a specific electronic format are far greater than was previously envisaged or adopted in practice. The ICO has announced that it will be revising its guidance to bring it into line with the judgment and many public authorities will need to revise their own policies and procedures to ensure that they comply.
One pertinent risk that will arise from public authorities being obliged to disclose information in software formats specified by the applicant, is that it can become more difficult to redact exempt information. It is not uncommon for public authorities to convert readily usable electronic files (e.g. Microsoft Word or Excel) into unusable ones (e.g. PDF image files) for the very purpose of ensuring that redactions cannot be undone and that other exempt information that is not readily visible (e.g. ‘metadata’) cannot be retrieved by industrious members of the public.
Of particular concern for NHS bodies will be information about patients and staff, which amounts to personal data under the Data Protection Act 1998 and is also likely to be subject to a duty of confidence. In addition to the issues with redaction, providing anonymous information about individuals in a reusable electronic format can increase the likelihood of individuals being re-identified through analysis and comparison to other information available to the applicant.
Those who read our earlier article on the recent ‘dataset’ amendments to FOIA made under the Protection of Freedoms Act 2012 may be experiencing a sense of déjà vu. In summary, in September 2013, a new provision was inserted into the FOIA which requires public authorities to disclose defined collections of information known as ‘datasets’ in a ‘reusable electronic format’ (s.11(1A)). However, in light of the Innes judgment, this new obligation intended for datasets only is now effectively replicated for all information held by public authorities. In fact, bizarrely, applicants may now enjoy greater rights of access to datasets under s.11(1) than under s.11(1A).
A question therefore arises as to whether the dataset amendments made last year now serve any material purpose. Underhill LJ did touch upon this point in the judgment, however, he felt that, even if the rights granted by the dataset amendments were to some extent already available, it can cast no light on the legal meaning of s.11(1).
In any event, there do still remain some differences between the rules for datasets and other information that cannot be ignored. For example, ss.11A & 11B make special rules in relation to the licensing of copyright works contained in datasets. However, such distinctions may now be arbitrary and it would be unsurprising to see further amendments to expand the reach of these sections to all information in future.
It is important that NHS staff who deal with Freedom of Information requests appreciate and apply the technical niceties of the law in order to avoid unnecessary breaches of the FOIA, complaints to the information commissioner and the impact on resources and negative publicity that goes with it.