Line to take - LTT156 - Form & Format and the Right to Inspect

• FOI/EIR: EIR
• Section/Regulation: reg 6(1)
• Issue: Form & Format and the Right to Inspect
• Source: Counsel’s Advice
• Details: Anya Proops 4 May 2009; Keston Ramblers Association v ICO & the LB of Bromley
• Related Lines to Take: LTT103
• Related Documents: Counsel’s Advice, Directive 2003/4/EC, Aarhus Implementation Guide, EA/2005/0024 (Keston Ramblers)
• Contact: RM
• Date: 06/08/2009
• Policy Reference: LTT156
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

The right under regulation 6(1) to request that information be made available in a particular form or format includes the right to inspect copies.

Further Information

Regulation 6(1):

Where an applicant requests that the information be made available in a particular form or format, a public authority shall make it so available, unless —

(a) it is reasonable for it to make the information available in another form or format; or

(b) the information is already publicly and easily accessible to the applicant in another form or format.

It is the Commissioner’s view, supported by counsel’s opinion, that the right under regulation 6(1) to request that information be made available in a particular form or format extends to the right to inspect copies.

In reaching this view the Commissioner has read regulation 6 in conjunction with regulation 8(2)(b) which implies that there is a right to inspect. The Commissioner has also considered the ethos behind the Regulations as set out in the Directive and the guide to Interpreting the Aarhus Convention. The reasoning is set out below.

General Approach

It seems clear that the intention behind reg 6 is to liberalise the access regime so as to make it as easy and simple as possible for applicants to access environmental information in the form that suits them best. It would therefore be strange if a public authority was obliged to provide an electronic copy of the information, but could refuse to provide an opportunity to inspect the same information without any good grounds. This is particularly true when you consider that the EIR is generally a liberal regime as is the Directive and Convention that sit behind the Regulations

Regulation 8

Support for this approach can be taken firstly from the fact that regulation 8(2)(b) clearly contemplates information being made available for inspection in that it provides that;

Reg 8(2) A public authority shall not make any charge for allowing an applicant —

(b) to examine the information requested at the place which the public authority makes available for that examination.

So it would seem odd for the Regulations to contain a provision which would effectively be redundant if there was no right to inspect.

The Directive

Further support is available from the Directive. The Directive clearly promotes a liberal access regime which aims to make it as easy as possible to obtain environmental information. This is evidenced by Article 1(b) which refers to public authorities having a duty to ensure the widest possible systematic availability and dissemination to the public of environmental information, Recital 15 requires member states to make arrangements that shall guarantee information is effectively and easily accessible and Article 4(2), makes it clear that the grounds for refusing a request are interpreted is a restrictive way. It would therefore be contrary to the spirit of the Directive to try and fetter an applicant’s ability to inspect information for no good reason.

The most convincing support in the Directive however comes from Article 3 which deals with ‘Access to environmental information upon request’. Paragraph (5)(c) obliges member states to ensure that practical arrangements are made for accessing environmental information such as;

“- the establishment and maintenance of facilities for the examination of the information required”

Aarhus Convention & Implementation Guide to the Convention.

Support is also available from the implementation guide to the actual Aarhus convention and the Convention itself. Article 4 of the Convention provides that the public should have access to the actual documentation containing or comprising of the information requested. The implementation guide makes it clear that this means individuals should be allowed to examine the original document. Clearly this can only be achieved by providing a right to inspect, unless of course a public authority was prepared to relinquish the original copy.

However this provision was not explicitly incorporated into either the Directive or the EIR and so the level of support which can be drawn from the Convention is limited.

Conclusion

In light of the above the counsel’s opinion obtained by the Commissioner is that “All of these provisions tend to suggest that regulation 6(1) should be construed broadly so as to include requests for inspection of environmental information.”

Property Searches / Decision Notices

The counsel’s opinion referred to earlier was sought in relation to the issue of the property searches that are conducted when buying houses. These searches are commonly carried out by commercial companies who were keen to establish that they were entitled to inspect the information held by local authorities in order to complete their enquiries free of charge. We have now published external guidance ‘Property Searches’ on this topic and issued two DNs. The DNs provide useful authorities for establishing the principle that reg 6 does extend to the right to inspect.

Although both the DNs and the guidance relate specifically to property searches, they will also provide assistance where casework raises issues around a public authority’s right to charge for inspecting information. In broad terms where a public authority is obliged to allow information to be inspected .i.e. neither of the provisions in subparagraphs 6(1)(a) and (b) remove that obligation, it cannot charge for doing so. Case officers should read the guidance and DNs for a fuller understanding of the interrelationship between reg 6 and 8 in this situation.

For Completeness;

The Tribunal

The Tribunal did consider the meaning of form and format in the Keston Ramblers case (EA/2005/0024). The ramblers had argued that the public authority was required to organise the information they had requested by reference to specified subjects. The Tribunal preferred the position taken by the ICO and public authority, agreeing that;

“the expression “form or format” is not a reference to categories of subject-matter, but is a reference to whether the information should be supplied by means of paper copies, or electronically, or by viewing of a microfiche, and so on.” (para 50(3)) See LTT103 for more details on this point.

This case does provide some support, albeit limited, to our position that reg 6 provides a right to inspect. It could be argued that the reference to viewing information on microfiche provided some support to the contention that reg 6 provides a right to inspect. But it is important to recognise that the main thrust of these arguments related to the particular physical form or format in which the information was provided as opposed to a particular methodology, e.g. providing the opportunity to inspect the information.

Counter Arguments

For completeness

The ICO recognises that it can be argued that the language ‘form and format’ can be more easily be taken to refer to how the information itself is physically structured rather than how it is communicated to the applicant e.g. Inspected.

It can also be argued that the very fact that reg 8(2) prohibits charging for the inspection of records suggests that, from a purely practical point of view, reg 6(1) should not be read as compelling public authorities to allow such inspections as to do so would unnecessarily disadvantage them. However it is anticipated that in many cases any cost would minimal and that it would be no more onerous to make information available for inspection than it would be to provide copies of that information and The Commissioner would therefore reject this argument if it was ever presented.

So although there may be counter arguments to the proposition that reg 6(1) provides a right to inspect the Commissioner remains of the view that it does.

And finally

Clearly section 11 of the Freedom of Information Act provides a right to inspect information and so the ability to inspect information has been recognised as valuable access right. Although this can not be used as an argument to justify our interpretation of the provisions under the EIR, it does seem desirable that, where possible, the two regimes provide similar rights.