Line to take - LTT91 - Advice & assistance under the EIR

• FOI/EIR: EIR
• Section/Regulation: reg 9, reg 16
• Issue: Advice & assistance under the EIR
• Source: Reg 16 code of practice, Agreed by GS; and Information Tribunal
• Details: Keston Ramblers Association / London Borough of Bromley (26 October 2007)
• Related Lines to Take: LTT87
• Related Documents: Reg 16 code of practice, EA/2005/0024
• Contact: LA
• Date: 21/04/2008
• Policy Reference: LTT91
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Where a public authority conforms with the provisions of the regulation 16 code of practice in relation to the provision of advice and assistance it will be taken to have complied with its duties under regulation 9. However, as the regulation 16 code of practice states that advice and assistance should not necessarily be limited to the steps set out within it, in practice a public authority could follow the steps suggested within the code and still be found in breach for something not covered in the code, but nevertheless considered to be reasonable to expect by way of advice and assistance from a public authority.

Further Information

Further Information

N.B. The wording of the regulation 16 code of practice (as opposed to that of the FOI section 45 code of practice) means that there are fundamental differences in the approach to advice and assistance under the EIRs and FOI. For the FOI approach see LTT87

Regulation 9

Regulation 9(1) of the EIRs states that

“A public authority shall provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to applicants and prospective applicants.”

Regulation 9(3) states that

“Where a code of practice has been made under regulation 16, and to the extent that a public authority conforms to that code in relation to the provision of advice and assistance in a particular case, it shall be taken to have complied with paragraph (1) in relation to that case.”

Regulation 16 code of practice

The provision of advice and assistance is covered in part III of the regulation 16 code of practice under paragraphs 8 to 23.

Paragraph 9 provides that:

“Every public authority should be ready to provide advice and assistance, including but not necessarily limited to the steps set out below. This advice and assistance should be available to those who propose to make, or have made requests and help them to make good use of the Regulations. The duty on the public authority is to provide advice and assistance ‘so far as it would be reasonable to expect the authority to do so.”

In practice this means that a public authority could follow the steps suggested within the code and still be found in breach of regulation 9, for something not covered in the code but nevertheless considered to be reasonable to expect.

The effect of this in practical terms is that when considering if a public authority has provided sufficient advice and assistance, there is a judgement to be made about what it would be reasonable to expect from that public authority in the provision of advice and assistance in the circumstances of the case.

“Reasonable to expect” under the EIRs

As discussed in LTT87, under FOI the “reasonable to expect” wording of section 16 means that although compliance with the section 45 code will always mean compliance with section 16, there is still some judgement to be made about how far it is reasonable for a particular public authority to go in order to conform with any particular provision of the section 45 code. It may also be that certain provisions or examples of desirable practice within the code are not deemed reasonable for every public authority to follow.

Under the EIRs, whilst the above principle equally applies, there will also be a further judgement to be made. This will be whether or not it would be reasonable to expect the public authority in question to have provided advice and assistance outside of the steps and situations detailed within the regulation 16 code.

Wider approach under EIRs

As discussed in LTT87 the approach under FOI will be to identify the triggering situation that you are in (e.g. proposing to make request, clarifying request, fees) and then to consider the paragraphs relevant to that particular situation.

Under the EIRs this approach will not apply. This is because before the regulation 16 code sets out its more detailed guidance it states at paragraph 9 that “This advice and assistance should be available to those who propose to make, or have made requests and help them to make good use of the Regulations.” This suggests a more proactive approach is expected from public authorities in order for them to meet the more general duty to provide advice and assistance whatever the situation, rather than making different specific provisions for different situations.

This proactive approach to the obligation to provide advice and assistance was endorsed by the Tribunal in the case of Keston Ramblers Association v Information Commissioner and London Borough of Bromley. The issue of advice and assistance was not central to the appeal, however the Tribunal offered some “observations” on the interaction between regulations 8 (fees) and 9 (advice and assistance) of the EIR.

In Keston Ramblers, the information held by the public authority which was relevant to the appellant’s request comprised over 300 pages of documentation. In its submissions to the Tribunal, the ICO suggested that where an authority had collated the requested information and offered to provide copies of it for a fee, the duty to provide advice and assistance would normally require the authority to offer the applicant the opportunity to inspect the documents first, so that the applicant may decide whether he is satisfied simply to inspect the documents or whether he wishes to pay for copies. The Tribunal stated that this was likely to be the correct approach and would avoid “any sense of grievance” arising from the applicant paying for copies of information which may not be relevant to the information the applicant is interested in.