Line to take - LTT115 - Redaction and the Fees Regulations

• FOI/EIR: FOI
• Section/Regulation: s12, reg 4(3)(d), reg 6, Fees Regulations
• Issue: Redaction and the Fees Regulations
• Source: Developed by GS/SW
• Details: Jenkins / Defra (2 November 2007); DBERR / FoE (29 April 2008); Chief Constable of South Yorkshire Police v ICO (14 December 2009
• Related Lines to Take: n/a
• Related Documents: EA/2006/0067 (Jenkins), EA/2007/0072 (DBERR); EA/2009/0029 (Chief Constable of South Yorkshire Police)
• Contact: SW/GF/VT
• Date: 18/01/2010
• Policy / Reference: LTT115
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

The “information” in this context is the information requested, not the information to be disclosed. Therefore the time taken to redact a document when the process of redaction is to blank out exempt information, leaving only the information which is to be disclosed in response to the request does not fall within reg 4(3)(d).

The time taken to redact exempt information cannot be taken into account when calculating any fee chargeable under regulation 6. The other costs of physical redaction (not time) can be taken into account under regulation 6.

Further Information

Interpreting Reg 4(3)(d)

Under reg 4(3) a public authority may, for the purposes of its estimate of the cost limit, take account only of the costs it reasonably expects to incur in relation to the request in:

(a) determining whether it holds the information,

(b) locating a document containing the information,

(c) retrieving a document containing the information, and

(d) extracting the information from a document containing it.

The key to the proper interpretation of this provision is that the “information” in this context is the information requested, not the information to be disclosed.

These activities are sequential, covering the retrieval process of the information requested from a public authority’s information store, no matter how or where the information is held. It has always been clearly understood that the charging regime did not allow public authorities to take into account for these purposes the cost of considering whether the information requested was exempt.

Confusion has arisen over whether a figure can be included in calculating the cost limit for the time taken to redact a document when the process of redaction is to blank out exempt information, leaving only the information which is to be disclosed in response to the request. This activity does not fall within reg 4(3)(d) as it is not the task of extracting the requested information from a document which contains other information which has not been requested, but of extracting the information to be disclosed from a document, where either the whole document or a larger amount of the information contained within it has been requested.

The reference to “editing or redacting” information at paragraph 2.3.2 of the DCA guidance on the Regulations is not clear, but it is not inconsistent with what is set above. Endnote 4, which is referred to in para 2.3.2, does explain the point. The context here is that the public authority is going through the information held “to establish what is contained within a file or document” and guidance continues: “... any subsequent readings (e.g. to consider exemptions) ... should not be included. ”

Physical redaction

Physical redaction of that information could properly be regarded as attracting a fee under regulation 6, specifically 6(2)(b) and/or 6(3)(b). Regulation 6(4) sets out that costs attributed to time may not be taken into account when charging a fee.

Regulation 6 states:

6. - (1) Any fee to be charged under section 9 of the 2000 Act by a public authority to whom a request for information is made is not to exceed the maximum determined by the public authority in accordance with this regulation.

(2) Subject to paragraph (4), the maximum fee is a sum equivalent to the total costs the public authority reasonably expects to incur in relation to the request in-

(a) informing the person making the request whether it holds the information, and

(b) communicating the information to the person making the request.

(3) Costs which may be taken into account by a public authority for the purposes of this regulation include, but are not limited to, the costs of

(a) complying with any obligation under section 11(1) of the 2000 Act as to the means or form of communicating the information,

(b) reproducing any document containing the information, and

(c) postage and other forms of transmitting the information.

(4) But a public authority may not take into account for the purposes of this regulation any costs which are attributable to the time which persons undertaking activities mentioned in paragraph (2) on behalf of the authority are expected to spend on those activities.

Any fee charged for physical redaction may not take into account time spent, but could include costs such as materials (e.g. tape) or use (rental, licensing) of specialist equipment for that specific activity.

As an alternative to redaction, for example where the information to be withheld is greater in quantity than that to be disclosed, a public authority might decide to reproduce the information to be communicated in a separate document or letter, rather than send a larger document with significant chunks blanked out. Obviously this will be subject to the expression of a preference by the requester, under section 11(1) of the Act and consideration as to whether the means are “reasonable in the circumstances” under section 11(4).

Chief Constable of South Yorkshire Police v ICO

The Commissioner’s approach to regulation 4(3)(d) was endorsed by the Tribunal in the case of The Chief Constable of South Yorkshire v ICO (EA/2009/0029) (paragraphs 30-37) — caseworkers are encouraged to refer to this IT as it is the first case to that covers the issue as a core consideration. The public authority appealed the Commissioner’s decision on the basis of establishing whether the costs it is likely to incur in removing exempt information from non-exempt information can be included when estimating how much it will cost to comply with a FOI request. The Tribunal confirmed at paragraph 34:

‘‘in our view, it is clear that what regulation 4(3)(d) is concerned with is the process of differentiating the requested information from other information which has not been requested where a document contains both.”

Jenkins Tribunal decision

In Jenkins v the Commissioner and Defra (EA/2006/0067) the Tribunal addressed the issue of whether the words “extracting the information from a document containing it” include the redaction of exempt information containing it. The Tribunal supported the position of the Commissioner:

“The Tribunal agrees with the Commissioner that such an act of deletion, i.e. removal of what may be thought to be exempt material, even at the stage at which the exercise is carried out, cannot sensibly be viewed as coming within he provisions of Regulation 4(3)(d) as it is presently drafted .”

In relation to charging under regulation 6 the Tribunal also commented: “The exercise which a public authority may embark on in order to consider whether an exemption applies and the extent which material otherwise disclosable may be subject to an exemption, is a separate exercise. The Commissioner and DEFRA agree that Regulation 6 is wide enough to encompass the charge of a fee in that respect.” To clarify his position, the Commissioner does not agree that the time spent on the process of redaction can be charged for under the regulations. The Commissioner’s line is as set out above; that costs of redaction that could be charged for would be limited to the physical costs of redaction and are clearly limited by regulation 6(4). In written submissions to Tribunal the Commissioner stated that any fees could only be charged “subject to reg 6(4) of the Appropriate Limit and Fees Regulations.”

DBERR Tribunal decision

In DBERR v ICO and FoE (EA/2007/0072) the Tribunal again commented that the time taken to redact is not caught by the 2004 Regulations and should not be taken into account when calculating the appropriate limit and that the decision in Jenkins “should not be interpreted in any other way”.