Line to take - LTT31 - Duty to search only up to the appropriate limit

• FOI/EIR: FOI
• Section/Regulation: s12
• Issue: Duty to search only up to the appropriate limit
• Source: Information Tribunal
• Details: Quinn / Home Office (15 November 2006); Randall / MHPRA (30 October 2007)
• Related Lines to Take: LTT4
• Related Documents: FS50071803, EA/2006/0010 (Quinn/HO); FS50088131, EA/2007/0004 (Randall/MHPRA)
• Contact: LA/LB
• Date: 23/04/2008
• Policy Reference: LTT31
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

A public authority does not have to estimate costs in advance but can search up to the cost limit and then refuse to conduct further searches under section 12 of the Act.

If a public authority estimates the cost of determining whether the requested information is held as being above the appropriate limit, it is not required to conduct searches for the information and instead should consider providing advice and assistance to the applicant to attempt to bring the request within the cost limit, in accordance with the section 45 code of practice. Whether it will be appropriate to provide advice and assistance will depend upon the circumstances of the case.

Further Information

This LTT envisages two scenarios:

(i) where the public authority states that it does not hold the requested information, however the ICO is not satisfied with this; and

(ii) where the public authority states that it cannot confirm whether the requested information is held, without carrying out searches which would exceed the appropriate limit.

The public authority states it does not hold the information requested

In the case of Quinn v the ICO and the Home Office the Commissioner had interpreted section 12 to mean that an estimate could only be carried out before a search was conducted, and that once that search had commenced it must be completed and section 12 could no longer be relied upon. The Tribunal disagreed with this approach and found that, “there is no time bar within the statute that prevents an estimate of costs being provided after significant time has already been spent searching for information. Indeed it may be that in many cases some searching will be required to provide the foundation of a subsequent estimate.”

This means that public authorities can search up to the cost limit and then refuse to conduct further searches under section 12 of the Act.

If a public authority intends to search for the information then it does not have to estimate costs in advance. However if it chooses to do this then it can still stop the search once the cost limit is reached, and is not obligated to complete searches just because it originally estimated that they could be done within the limit.

The Tribunal suggested that where a public authority says that information is not held, and the Commissioner is not satisfied with this then a Decision Notice could order searches to continue up to the cost limit, rather than ordering the release of information that has not been located. In practice this should be an exceptional circumstance as case officers will normally try to informally resolve complaints with a public authority, which might entail asking it to carry out further searches. However, in circumstances where searches up to the cost limit have not been completed and a public authority will not agree to further searches informally, then further searches up to the cost limit could be ordered by Decision Notice, as a step in order to comply with section 1.

Public authority cannot confirm whether it holds the information within the cost limit

In the case of Randall v Information Commissioner and Medicines and Healthcare Products Regulatory Agency the public authority had stated that it could not comply with one element of the complainant’s request as it claimed that to do so would exceed the appropriate limit. The Information Tribunal decided that where a public authority cannot confirm whether it holds the requested information and estimates that to do so would exceed the appropriate limit, it will not be obliged to carry out any searches for the information and stated, at paragraph 13, that “the effect of section 12 is not to impose a limit, leaving the authority obliged to carry out work up to that limit; it is to remove the information from the scope of the section 1 duty to disclose altogether”.

In Randall the Tribunal was satisfied that the public authority’s estimate that the appropriate limit would be exceeded was “sensible, realistic and supported by cogent evidence” (paragraph 12). If the Commissioner is satisfied that the authority’s estimate is reasonable, he may not require it to carry out further searches. If the Commissioner considers the estimate to be unreasonable he may require the estimate to be recalculated and, if the new estimate falls below the appropriate limit, he may order searches up to the limit to be carried out.

Additional information

Where a public authority has not claimed s12, but the ICO has established that the cost limit has been reached, then the Decision Notice may find that no further searches are required for this reason. Effectively the Commissioner can apply s12 even though this has not been claimed by the public authority, although he has no positive duty to do this.

A public authority may choose to search beyond the costs limit but is not obligated to do this.