Line to take - LTT77 - Information held in electronic or manual files

• FOI/EIR: FOI, EIR
• Section/Regulation: s1, reg 5
• Issue: Information held in electronic or manual files
• Source: Information Tribunal
• Details: Johnson / MoJ (13 July 2007); Home Office (15 August 2008)
• Related Lines to Take: LTT31, LTT78, LTT87, LTT116, LTT137
• Related Documents: FS50086919, EA/2006/0085 (Johnson), EA/2008/0027 (Home Office)
• Contact: HD
• Date: 02/02/2009
• Policy Reference: LTT77
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

The following applies to information recorded in both electronic and manual files:

The Commissioner’s general position is that:

• Information is held notwithstanding that it requires any level of skill to retrieve and extract the relevant information although s.12 arguments may be engaged.
• Information is held where it is reasonable to expect the public authority to apply their knowledge to make a judgment to obtain the relevant information.
• Information is unlikely to be held where the public authority would be required to make a complex judgment which may require specialist knowledge.

However the Commissioner accepts that it will often be difficult to separate ‘skill’ from ‘judgment’ and that both activities may be needed to respond to a request.

Further Information

In the case of Johnson & the Ministry of Justice (‘MOJ’), the complainant asked for the ‘number of claims allocated to individual Queen’s Bench Masters for the years 2001-04 and the number of Strike Outs of claims by individual Queen’s Bench Masters for the years 2001-04’. Having established that these sum totals were not held in the MoJ’s database, they argued that carrying out such an exercise amounted to the creation of new information. The Commissioner found that the information was not held but that the level of difficulty involved in the exercise was a relevant factor. On appeal, the Tribunal considered whether information in raw data in manual files was held or whether this collation amounted to the creation of new information and said at paragraph 49:

" .we accept.. .that the degree of skill and judgment that must be applied to the building blocks may well have bearing on whether the information is held or whether what is being sought is more properly construed as being new information…”

The Commissioner adopted the Tribunal’s approach of considering skill and judgment in relation to manual records but did not apply the same tests to information held in electronic records. However the Commissioner has reconsidered his approach and will now focus on the requested information itself rather than the format in which it is recorded i.e. the test will be the same regardless of whether the information is held in manual and electronic files. This is supported by the Tribunal in the later case of the Home Office & the Information Commissioner in which it was said that:

".the legislation is concerned with information as an abs tract phenomenon (i.e. facts which are recorded) and not with documents or records as such...” (para 13).

The Commissioner will then use the approaches outlined below to consider whether the requested information is held.

Skill

The Commissioner will find that the requested information is held regardless of whether any level of skill is required to retrieve and extract that information. This is on the basis that a skill represents an ability acquired through training so that anyone can be taught to retrieve and extract the information. In any event, the Commissioner would expect most public authority employees to possess the basic skills to add, subtract, multiple, divide figures etc which are likely to be required to answer requests asking for totals/averages/percentages etc. Thus the Commissioner considers that the information is held if the public authority holds the information from which those totals/averages/percentage figures could be calculated.

This approach follows the Tribunal’s decision in the Home Office case in which the complainant asked for the total number or work permits obtained in 2005 and 2006 by nine named employers in the IT sector. The Home Office argued that as they did not hold the requested information in the required format, they did not hold the information and the Act did not require the creation of new information. However the Tribunal concluded that the information was held and said:

“...since the Home Office’s database undoubtedly contains a record of each of the work permits granted to the named employers in the years in question, it seems to us that it must follow that the Home Office hold information as to how many such work permits were granted... . thus the fact that the total number of permits is not recorded anywhere as a number is in our view irrelevant, the number is implicit in the records....” (para 13).

Incomplete or inaccurate results

The Home Office also argued that even if they did hold the requested information, they could not guarantee that the database held full details of every work permit and thus that the results may not be 100% accurate. The Tribunal said “...the same must be true of information produced from any database (which is after all dependent on human beings to input data)...” (para 4) and further that “...if the records are faulty or inadequate and the information turns out therefore to be inaccurate that is irrelevant: the right under the Act is to information which is held, not information which is accurate ....“(para 15).

Thus, where an applicant requests a ‘complete list’ or total number’, the Commissioner will not accept arguments that this information is not held because the extraction process may only produce inaccurate or incomplete results. In any event, a public authority has the option of putting the disclosure in context by explaining that the information is incomplete or inaccurate.

Ambiguous scope of the request

Where complainants make requests asking for the ‘top 10 cases’ or ‘the 5 most significant cases of 2005’, the public authority simply needs to clarify the parameters of the request under s1(3). For example, in relation to the request for the ‘5 most significant cases’, the public authority should clarify whether ‘significant’ means the most expensive cases, the cases that lasted the longest, the cases that attracted the most media attention etc. The Commissioner would then consider whether the public authority has complied with its section 16 duties and could order the public authority to provide advice and assistance although he would be unable to make any finding on whether or not the information was held without clarification of the request.

No business need to obtain the information in the way requested

In Johnson, the Tribunal said that as there was no requirement to record that a particular type of order was made, and as it was not consistent practice, the Tribunal felt it could reasonably be concluded that the information requested was not recorded and is not held.

The Tribunal in the later case of the Home Office however said that it was irrelevant whether or not there was a business need to record the requested information and said at paragraph 14:

“...we cannot see that the Home Office’s normal business requirements have any relevance to the issue of whether they hold the information or to their obligations under the Act. The Act was clearly designed to impose on public authorities’ obligations which may well go beyond those imposed by their normal business activities....”

If the Johnson case were to be considered now, the Commissioner would argue in front of the Tribunal that the public authority did hold the requested information and that this should be supplied to the complainant perhaps with a note to explain that the results may be inaccurate or incomplete.

Thus, the Commissioner will follow the approach taken by the Tribunal in the Home Office case and he will not accept arguments that the requested information is not held because there is no business need to record information in the way the applicant has asked for it, if they hold the constituent parts to create that information i.e. a list, an average number, a percentage etc.

Also see worked examples in table below.

Judgment

The Commissioner has noted the Tribunal’s reference in the Home Office case to Lord Hope’s comment in the House of Lords decision in the case of the Common Services Agency v Scottish Information Commissioner [2008] UKHL 47 that when considering whether answering a request would require the retrieval and extraction of the constituent parts already held or whether it would amount to the creation of new information, the Tribunal said: 1

“... [t]his part of the statutory regime should...be construed in as liberal a manner as possible” (para 8).

The Commissioner’s approach is therefore that he is likely to find that the public authority does hold the requested information albeit that it would require a reasonable level of judgment to determine either what ‘building blocks’ are required to compile the information or what needs to be done to the ‘building blocks’ once they have been collated.

For example, in the Johnson case, the Tribunal said: “we find it likely that a staff member with even limited familiarity with such matters would have no difficulty in knowing that different descriptions refer to strike out orders. Alternatively, it would be a simple matter for the person reviewing the file to be provided with a list of three or four different descriptions that a Master might use....” (para 49).

Also, in the Home Office case, despite the fact that no report was in existence to produce the list of permits requested, the Tribunal found that “....it would be relatively straightforward for [the Higher Executive Officer] or any member of his team (bar one trainee) to write a report that would produce the information...” (para 3).

The Commissioner is also likely to find that a public authority holds the requested information where it is implicit in the information held, such as in the Home Office case where the Tribunal said that “...the fact that the total number of permits is not recorded anywhere as a number is in our view irrelevant: the number is implicit in the records...”(para 13). Although this is quite a simple example, the principle could also be applied in more complex cases, for example, where a public authority needs to apply some judgment as to which ‘building blocks’ need to be included albeit in a simple calculation or which computer programmes need to be run in order to obtain the information requested.

In summary therefore, the Commissioner is likely to find that the public authority does hold the raw data to answer requests which would involve some calculation or forecasting although there will be requests that go beyond a reasonable exercise of judgment and instead cannot be answered without creating new information. Thus where a public authority would be required to make a complex judgment (perhaps based on specialist knowledge) or where a public authority needs to formulate or apply complex mathematical formulae (for example, in order to produce a financial model), the Commissioner is unlikely to find that this information is held.

Also see worked examples in the table below.

TABLE OF WORKED EXAMPLES

N.B. Case officers MUST read the line and further information — do not rely solely on this table.

Example 1

‘Please provide me with the total number of residents in Scarborough with two or more children who pay Council tax in band B’.

For actual examples, see: FS50130517 (paras 19-25), FS50070854 (paras 27-28) FS50182559

The pa is unlikely to have separately recorded this total figure but the information is held if the public authority holds (either manually or electronically) the raw data from which the total can be calculated (although s.12 may be a consideration).

= Minimal skill (irrelevant)

= No judgment (info is held)

Example 2

‘What percentage of teachers in Greater Manchester earn more than £30k’

Suggested Response

The pa is unlikely to have this percentage recorded but the information is held if the public authority holds (either manually or electronically) the raw data from which the percentage can be calculated (although s.12 may be a consideration).

= Minimal skill (irrelevant)

= No judgment (info is held)

Example 3

‘I request a list of the top five legal cases defended by your authority over the last year’

For actual example, see: FS50127519 (paras 27-30)

Suggested Response

Under s1(3), the PA should clarify with the complainant what they mean by the phrase “top legal cases”. Then if the complainant refines the request to indicate that s/he is looking for the cases that were the most expensive, for example, the information is held if the public authority holds (either manually or electronically) the raw data from which the list can be compiled (although s.12 may be a consideration).

The Commissioner would also consider whether the PA had compiled with its s.16 duties and could order the provision of some advice and assistance in the ‘steps required’ section of the decision notice, if this was appropriate.

= Minimal skill (irrelevant)

= No judgment (info is held)

Example 4

4 “Please can you provide me with the number of Strike Outs of claims by individual Queen’s Bench Masters for the years 2001—2004”

Johnson & Ministry of Justice EA/2006/0085

Suggested Response

“...we find it likely that a staff member with even limited familiarity with such matters would have no difficulty in knowing that different descriptions refer to strike out orders...”(para 49).

= Minimal skill (irrelevant)

= Minimal judgment (info is held)

“...Alternatively, it would be a simple matter for the person reviewing the file to be provided with a list of three or four different descriptions that a Master might use..” (para49).

= No skill (irrelevant)

= Minimal judgment (info is held)

Example 5

How many work permits were obtained in 2005 & 6 by nine named employers in the IT sector?

Home Office EA/2008/0027

Suggested Response

“...the total number of work permits is not recorded anywhere as a number...the number is implicit in the records of the relevant permits when put together and whether it comes in the form of a list of individual work permits or a total figure seems to us to be simple a matter of the form...” (para 13).

“...We accept that obtaining the information which [the complainant] wants from the database will involve some skill and judgment [but this is not] of any relevance to the issue in question...” (para 14).

= Some skill (irrelevant)

= Some judgment (info held as compliance does not require a high level of judgment)

Example 6

You have provided a financial forecast for the coming financial year of oil prices in countries A & B. Please provide a similar forecast for oil prices in country C.

Hypothetical example from barrister in the Johnson case (see para 46)

Suggested Response

“...to arrive at a forecast for country C, the raw data that the public authority holds would likely have to be subjected to complex mathematical formulae, and also, a high level of skill and judgment would likely be required, in order to take account of political and other considerations...” (para 46).

= High level of skill (irrelevant)

= High level of judgment (info not held)