Line to take - LTT147 - "Manifestly unreasonable" in relation to the cost of complying with a request

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  • FOI/EIR: EIR
  • Section/Regulation: reg 12(4)(b)
  • Issue: "Manifestly unreasonable" in relation to the cost of complying with a request
  • Source: DN
  • Details: FS50154310, FS50121519
  • Related Lines to Take: LTT1; LTT80; LTT116; LTT122; LTT123
  • Related Documents: FS50154310; FS50121519; Guidance on charging for environmental information; FOI and Data Protection (Appropriate Limit and Fees) Regulations 2004
  • Contact: GF
  • Date: 09/03/2009
  • Policy Reference: LTT147
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT


Line to take

The FOI Fees Regulations can be used as a starting point in determining whether costs under EIR are reasonable. The fact that a similar request may be rejected under the provisions of s12 of FOIA does not, in itself, render a request made under EIR manifestly unreasonable by virtue of regulation 12(4)(b). There are other important factors that must always be taken into consideration before concluding that environmental information can be withheld under this exception:

1. Under EIR, there is no statutory equivalent to the “appropriate limit”;
2. Proportionality of the burden on the public authority’s workload, taking into consideration the size of the public authority;
3. Presumption in favour of disclosure under regulation 12(2);
4. Public interest test under regulation 12(1);
5. The requirement to interpret the exceptions restrictively; and
6. The individual circumstances of the case.


Further Information

Regulation 12(4)(b) provides that a public authority may refuse to disclose information to the extent that the request for information is manifestly unreasonable. The Commissioner is clear that the inclusion of “manifestly” in regulation 12(4)(b) indicates Parliament’s intention that, for information to be withheld under this exception, the information request must meet a more stringent test that being simply “unreasonable”. “Manifestly” means that there must be an obvious, clear or self-evident quality to the unreasonableness referred to.

Cost of complying with a request for environmental information

The Commissioner is of the view that this regulation provides an exception to the duty to comply with a request for environmental information in two circumstances:

1) where it is vexatious (see LTT123) and
2) where it would incur unreasonable costs for the public authority or an unreasonable diversion of resources.

In determining whether the cost of complying with request for environmental information would be “manifestly unreasonable” under regulation 12(4)(b) of EIRs, it is acceptable to use the FOI and Data Protection (Appropriate Limit and Fees) Regulations 2004 (the ‘Fees Regulations’) as a starting point to ascertain what constitutes a ‘manifestly unreasonable’ cost or diversion of resources.

In assessing whether the cost of complying with a request for environmental information is reasonable, caseworkers should bear in mind the EU Directive from which EIR originates, which states at 4(2) that “the grounds for refusal... shall be interpreted in a restrictive way”. Furthermore, the Implementation Guide to the Aarhus Convention (page 57) notes that:

“Although the Convention does not give direct guidance on how to define ‘manifestly unreasonable’, it does hold it as a higher standard than the volume and complexity referred to in article 4, paragraph 2. Under that paragraph, the volume and complexity of an information request may justify an extension of the one month time limit to two months. This implies that volume and complexity alone do not make a request manifestly unreasonable.”

The fact that a similar request may be rejected under the provisions of s12 of FOIA does not, in itself, render a request made under EIR manifestly unreasonable by virtue of regulation 12(4)(b) - there are additional factors that should always be considered in assessing whether costs are manifestly unreasonable:

1. Under EIR, there is no statutory equivalent to the “appropriate limit”;
2. Proportion of burden on the public authority’s workload, taking into consideration the size of the public authority;
3. Presumption in favour of disclosure under regulation 12(2);
4. Public interest test under regulation 12(1);
5. The requirement to interpret the exceptions restrictively; and
6. The individual circumstances of the case.

Examples of Approaches

The Commissioner has considered the approach discussed in the decision notices FS50121519 and FS50154310; in each decision, the weighting of the above factors varies, and therefore results in distinct outcomes.

FS50121519

In this case, the public authority had originally refused the request under s12 of FOIA. When the Commissioner alerted the public authority to the fact that part of the response constituted environmental information, the public authority suggested that were the Commissioner to decide that this information was environmental, the request should still be refused under regulation 12(4)(b) as manifestly unreasonable. The public authority suggested that in effect regulation 12(4)(b) runs parallel to the exemption in s12 of the Act and therefore, as responding to the request exceed the appropriate limit detailed in the fees regulations, it could be refused under 12(4)(b).

However, the Commissioner rejected this argument, clarifying that where a request for environmental information would exceed the appropriate limit if it were dealt with under the Act is not straightforward grounds for classing a request as manifestly unreasonable. In line with the approach set out above, the Commissioner went on to consider additional factors before reaching a conclusion on whether dealing with the request would be manifestly unreasonable.

In this case, the public authority did not present satisfactory evidence for its calculations of cost estimates of complying with the request; this therefore gave the Commissioner good grounds to doubt the public authority’s claim that the request was unreasonable. In addition to this, the Commissioner considered how proportionate the burden created by the request would be on the public authority’s normal activities and whether complying with the request would involve an unreasonable diversion of resources from the provision of public services. As DBERR is a large central government department, the Commissioner made the judgement that dealing with this request would not interrupt its normal activities and responsibilities in any significant way.

In taking into account the factors on the evidence of estimates and the proportionality of the burden, the Commissioner was satisfied that in these circumstances, the request was not manifestly unreasonable, despite the fact it surpassed the equivalent to the appropriate limit under FOI fees regulations. He therefore did not go on to consider the public interest test in this case.

FS50154310

In this case, the complainant requested items relating to the maintenance of a septic tank that served his property and was the responsibility of the local Council. The public authority initially refused the requested under s12 of FOIA. However, the Commissioner decided that the majority of the information was environmental and should be dealt with under the corresponding regulations.

The Commissioner considered the FOI Fees Regulations as a starting point in his assessment on whether the requests (for environmental information) would be unreasonably costly for the public authority to deal with. The Commissioner was content that the public authority’s estimate of 54 hours 32 minutes was reasonable, and considered this in light of the appropriate limit of 18 hours under the FOI fees regulations, noting that such a large search would seriously disrupt the everyday work of the PA and was therefore manifestly unreasonable.

The Commissioner went on to consider the public interest case; he believed that in this case, the release of information would promote accountability and transparency in public services. However, the Commissioner found that the time it would take in responding to the request would divert a disproportionate amount of the public authority’s resources from its core functions (paragraph 47), and furthermore, the fact that very few people were directly served by the sewage plant indicated a limited level of public interest in disclosure.

Although acknowledging the specific presumption in favour of disclosure at 12(2) of EIR, in light of the arguments for the above factors, the Commissioner concluded that on balance, the public interest in maintaining the exception under 12(4)(b) outweighs the public interest in disclosing the information, and therefore, the cost of complying with this request was manifestly unreasonable.

Caseworkers should bear in mind that Regulation 9 places the duty on the public authority to provide advice and assistance; the EIR Code of Practice is clear that public authorities should be flexible in offering advice and assistance most appropriate to the circumstances of the applicant — this is general enough to include where the cost of dealing with a request is deemed as manifestly unreasonable.

NB: Caseworkers should remember that the costs of complying with requests for non- environmental information cannot be taken into account under EIR.

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