Line to take - LTT114 - Assessing whether information has been communicated or made available

• FOI/EIR: FOI/EIR
• Section/Regulation: s1(1)(a), s1(1)(b), reg 5(1), reg 14(1)
• Issue: Assessing whether information has been communicated or made available
• Source: Policy team
• Details: Keston Ramblers / LB Bromley (26 October 2007)
• Related Lines to Take: LTT34, LTT91, LTT103
• Related Documents: EA/2005/0024
• Contact: LB / LA
• Date: 04/07/2008
• Policy Reference: LTT114
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

The duty to communicate information under section 1(1)(b) FOIA or to make information available under regulation 5(1) EIRs allows the ICO to determine whether the public authority has acted reasonably when providing the information to the applicant. Information must be provided to the applicant in such a way that s/he may determine whether the public authority’s response is satisfactory and that s/he may identify which information corresponds to which element of the request (where relevant).

Public authorities must address individual elements of requests if they do not hold information in respect of those elements, in order to make clear to the applicant what information they do and do not hold.

Further Information

Background

LTT103 discussed whether a public authority is obliged, under regulation 6 EIRs, to sort the information it provides in response to requests in line with the headings used by the applicant when the request was made. We concluded that authorities are not obliged to take such action under regulation 6. However, in some circumstances, a public authority may be obliged to sort information and provide it under the headings specified in the request, in order to effectively communicate information (section 1(1)(b) FOIA) or to make information available (regulation 5(1)) where the ICO considers it would be reasonable for it to do so.

The Policy team is not suggesting that case officers proactively establish, in relation to each complaint, whether public authorities were obliged to provide the information requested under the headings set out in the request. Rather, this LTT is intended to provide guidance to case officers where the complainant alleges that the way in which the information was provided means that it was not communicated/made available or that, in the process of investigating a complaint, the case officer believes it is necessary to consider whether the information has been communicated/made available.

Factors to take into account

In order to determine whether a public authority has acted reasonably when providing information to the applicant, case officers may wish to consider the following factors:

• whether the reasonable person would be able to understand which item of information corresponded to which element of the request;
• whether it would be reasonably practicable for the authority to provide the information under request headings;
• whether, at the time of the request, the applicant asked for the information to be provided separately, under the headings set out in the request;
• whether asking the public authority to take such action at the investigation stage would result in a widening of the scope of the request; and
• whether, in cases under the EIRs only, the public authority should have provided the information under the headings set out in the request, in line with its proactive duty to provide advice and assistance under regulation 9(1).

Case officers are likely to give greater weight to the first of the above factors as, if an applicant is unable to ascertain whether his/her request has been complied with from the information provided, it is likely that it has not been communicated/made available to him/her and therefore it may be determined that the public authority has failed to comply with its obligations, without consideration of the other factors.

The ICO will not expect public authorities to take such action where it would be “inherently impracticable” to do so (the Tribunal in Keston Ramblers Association v Information Commissioner and the London Borough of Bromley at paragraph 50). In Keston Ramblers the Tribunal rejected the suggestion that the public authority had been obliged under regulation 6 EIRs to provide the requested information under the seven headings set out in the complainant’s request, as “items would be likely to fall under more than one heading”. The Tribunal did not go on to consider whether the public authority had been obliged under any other regulation to provide the information in this way, however this may have been because it also rejected this element of the complainant’s appeal because it was raised for the first time at the appeal hearing.

The above factors do not form an exhaustive list, and case officers may take into account all the circumstances of the particular case when deciding whether a public authority has communicated information/made available information on request.

Example 1

An applicant makes a request for information to a council relating to licences it has issued for taxis. He requests: (a) a copy of each licence, (b) copies of any vehicle inspection reports in relation to the licensed taxis in (a) and (c) information recording any action taken by the council regarding taxis driven on expired licences. The council responds by providing copies of the information it holds, however the applicant is unable to identify which vehicle inspection reports relate to which taxi, as it is not clear from the face of the documents. There are no documents concerning action taken by the council following the expiration of licences included in the bundle of documents provided to the applicant, however the council does not explain why this is the case until the ICO commences its investigation. It then explains that it does not hold the information in (c) as it has never taken any action regarding expired licences.

Conclusion under FOIA

In this instance, the council did not link the licences in (a) with the vehicle inspection reports in (b) and would therefore have failed to communicate the requested information to the complainant. It would have breached section 1(1)(b) of the Act. In addition, it would have breached section 1(1)(a) for failing to confirm that it did not hold the information in (c).

Conclusion under EIRs

Had the information as described above been environmental information, the council would have breached regulation 5(1) for failing to make available information on request, and regulation 14(1) for failing to explain to the applicant that it did not hold the information requested in (c).

Example 2

An applicant requests all correspondence from (a) the council’s Conservation department and (b) the council’s Enforcement department, addressed to a particular property. The council responds by providing the complainant with the information requested, in chronological order of the dates the letters were sent. Therefore letters from the Enforcement and Conservation departments were mixed. Each department is clearly identified on the headed paper, and each has been signed by either an ‘Enforcement Officer’ or a ‘Conservation Officer’.

Conclusion under FOIA

In this instance, the council did not specify which items of information fell under requests (a) and (b). However, given the information on the headed paper and the job titles of the relevant officers being included on the information provided, the reasonable person would be able to understand which item of information corresponded to which element of the request. Even though it may have been reasonably practicable to sort the information under the request headings, given that it was clear from the information provided which item fell within which element of the request, the council has not breached section 1(1)(a) or section 1(1)(b).

Conclusion under EIR

Had the information as described above been environmental information, the council would not have breached regulation 5(1), as it had made available the information requested.