Line to take - LTT116 - Reasonable estimates

• FOI/EIR: FOI
• Section/Regulation: s12
• Issue: Reasonable estimates
• Source: Information Tribunal
• Details: Urmenyi / London Borough of Sutton (1 3 July 2007); Gowers / London Borough of Camden (13 May 2008); James / Govt Departments (25 September 2007); Robin Williams / Cardiff & Vale NHS Trust (22 September 2008); Brown / The National Archives (2 October 2007); Alasdair Roberts (4 December 2008)
• Related Lines to Take: LTT4, LTT31, LTT137
• Related Documents: EA/2006/0093 (Urmenyi’), EA/2007/0114 (Gowers), EA/2006/0003, EA/2006/0004, EA/2006/0005, EA/2006/0006, EA/2006/0007 (James), EA/2008/0042 (Williams), EA/2006/0088 (Brown), EA/2008/0050 (Roberts)
• Contact: HD
• Date: 11/11/2008
• Policy Reference: LTT116
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

1 - It is up to the public authority to estimate whether it would exceed the costs limit to comply with a request although any estimate must be reasonable. However in considering the reasonableness of that estimate, the Commissioner can investigate and challenge the public authority’s process of investigation, assessment and calculation which led to their estimation that it would exceed the costs limit to comply with the request.

2 - Also, although it is not a statutory requirement, as a matter of good practice a public authority should provide a breakdown of how they arrived at their estimate so that the applicant can consider refining his request to come within the costs limit.

Further Information

Part I — the Commissioner can investigate the way in which the estimate has been calculated

Regulation 4(3) of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 states as follows:

“In a case in which this regulation has effect, a public authority may, for the purpose of its estimate, take account only of the costs it reasonably expects to incur in relation to the request in —

• determining whether it holds the information,
• locating the information, or a document which may contain the information,
• retrieving the information, or a document which may contain the information,
• extracting the information from a document containing it.

In the case of Mr William Urmenyi & the London Borough of Sutton the Tribunal said that it was clear from the wording of section 12 that it was up to the public authority to estimate whether the appropriate limit would be exceeded in carrying out the activities described in Regulation 4 but that:

“...the Commission[er] and the Tribunal can enquire into whether the facts or assumptions underlying this estimation exist and have been taken into account by the public authority. The Commission[er] and the Tribunal can also enquire about whether the estimation has been made upon other facts or assumptions which ought not to have been taken into account. Furthermore the public authority’s expectation of the time it would take to carry out the activities set out in regulation 4(3)(a-d) must be reasonable”. (para 16).

The issue of what constitutes a reasonable estimate was also considered in the case of Alasdair Roberts and the Commissioner endorses the following points made by the Tribunal at paragraphs 9 -13 of the decision:

• “Only an estimate is required” (i.e. not a precise calculation)
• The costs estimate must be reasonable and only based on those activities described in Regulation 4(3)
• Time spent considering exemptions or redactions cannot be taken into account (reaffirming the position in Jenkins (EA/2006/0067)) (see LTT115)
• Estimates cannot take into account the costs relating to data validation or communication
• The determination of a reasonable estimate can only be considered on a case-by-case basis and
• Any estimate should be “sensible, realistic and supported by cogent evidence” (reaffirming the position in Randall (EA/2007/0004)).

The Tribunal went onto suggest that producing an estimate requires a process of both investigation and assessment/calculation. At paragraph 12, the Tribunal said:

“....The investigation will need to cover matters such as the amount of information covered by the request, its location, and the hourly rate of those who have the task of extracting it. The second stage will involve making an informed and intelligent assessment of how many hours the relevant staff members are likely to take to extract the information...”

Following this approach, the Commissioner will consider the way in which the public authority has investigated, assessed and calculated that the cost of the activities required in extracting the requested information would exceed the limit and the Commissioner may find that the public authority’s estimate is unreasonable. Where this is the case, the Commissioner can dismiss the public authority’s estimate and substitute his own reasonable estimate and his decision as to whether s.12 has been correctly applied would then be based upon the revised ‘reasonable’ estimate.

Alternative Methods of Extracting the Requested Information

In the Alasdair Roberts case, the complainant offered a number of suggestions as to how the requested information could be extracted from the database. The Tribunal concluded that none of the ways suggested would have brought the request under the costs limit. However the Tribunal also made the following more general comments on alternative methods of extraction:

“(a)...the complainant set the test at too high a level in requiring the publlc authority to consider all reasonable methods of extracting data;

(b) that circumstances might exist where a failure to consider a less expensive method would have the effect of preventing a public authority from relying on its estimate...” (para 15).

Those circumstances were set out at paragraph 13 where it was said:

“...it is only if an alternative exists that is so obvious to consider that disregarding it renders the estimate unreasonable that it might be open to attack And in those circumstances it would not matter whether the public authority already knew of the alternative or had it drawn to its attention by the requestor or any other third party...”

Thus, a costs estimate will only be disregarded if it fails to consider an absolutely obvious alternative means of extracting the requested information.

However, neither the Commissioner (nor the later Tribunal in the Roberts case) will follow the Tribunal’s decision in the case of Brown and The National Archives (TNA) in which TNA claimed s12 in relation to 637 requests made by the complainant. The Tribunal in that case concluded that it would have been reasonable to expect TNA to advise the complainant to phase his requests in intervals exceeding 60 days, to take into account the complainant’s priorities and advise of the searches that TNA could offer. The Tribunal concluded that because TNA did not offer such advice, the estimate was unreasonable. The Commissioner does not accept this conclusion as his view is that the estimate was reasonable based on the actual request that had been made and that a series of phased requests would have no bearing on the reasonableness of the costs estimate applied to the original request. (Also see LTT137 on refined and clarified requests as new request).

Records Management

The Commissioner can take into account the fact that a poor standard of records management will mean that a public authority will take longer to complete its searches. Further, the Commissioner accepts the general principle that it may also take more time to carry out a search of manual files as opposed to records stored electronically where the searches available on the computer should speed up the process.

This is supported by the Tribunal’s decision in the case of Robin Williams & Cardiff and Vale NHS Trust in which the Trust spent 26 hours searching for some of the requested information without success (although the decision notice concluded that 20/21 hours was more reasonable in this case). The Director of Development said that the Trust held a master file but that this was incomplete and that further searching would be required in different files stored in different locations. The complainant argued that to allow the Trust to rely on s.12 in these circumstances would “...in effect be sanctioning incompetence...”(para 27). However the Tribunal said:

“The Tribunal agreed with the IC that he could properly take into account ‘the manner in which the information was held; the fact that it is held in various location by the Trust and its appointed agents and also the fact that very little information is available by electronic means’ (para 41 of the decision notice) (para 26) It was not open to the Tribunal to disallow reliance upon section 12 on the basis that the Trust could have organised its records more efficiently. The question was whether the information was held by the Trust or its agents and if so the time taken in compliance with the letter of the request....” (para 28).

However the Commissioner would expect the public authority to give a reasonable explanation as to why it is necessary to search across multiple sources or systems of information and the Commissioner may go onto challenge any assumptions about where information may be held.

Furthermore, where a search for information exceeds the appropriate limit due to poor records management, this may indicate s.46 code issues and as such should be referred to the Enforcement team who can determine if and how to raise this issue with the public authority and/or the National Archives.

Part 2 — It is good practice, although not a statutory requirement, to provide a breakdown

There is no statutory requirement for a public authority to provide a breakdown as to how they have reached their estimate but as a matter of good practice they should, if only to try to avoid cases being passed to the ICO and thereafter to avoid decision or enforcement notices or practice recommendations being issued against them. The Tribunal offered support for this approach in the case of Gowers and the London Borough of Camden in which it was said that a public authority should demonstrate how their estimate has been calculated:

“...a public authority seeking to rely on section 12 should include in its refusal notice, its estimate of the cost of compliance and how that figure has been arrived at, so that at the very least, the applicant can consider how he might be able to refine or limit his request so as to come within the costs limit...” (para 68).

As the Commissioner should be seen to promote good practice any failure to provide a costs breakdown should be referred to in the other matters section of the Decision Notice although case-officers should contact a member of the GPE team before drafting any paragraphs dealing with good practice issues.

Note:

The Commissioner is aware of another Tribunal decision involving s12. In the case of James & Government Departments, the Cabinet Office (‘CO’) confirmed they would hold the information requested but were unable to find it despite conducting a search of the three most likely places. The CO concluded therefore that the only alternative would be to search the entire archive. The case reached the Tribunal who, of their own volition, called a senior civil servant to give evidence. This evidence led to the discovery of the requested information. In this case, despite indicating that it was surprised that this civil servant had not been approached which showed a “...certain lack of constructive thinking about compliance...” (para 57), the Tribunal nonetheless considered that the initial estimate was reasonable. At para 48, they said “... what about an estimate which, whilst undertaken in good faith, proceeds on a mistaken basis or involves honest errors? We do not think that this is any the less an estimate “.

The quite unusual circumstances of this case make it of very limited application to other cases and also the Commissioner is not minded to follow the approach of accepting honest but mistaken estimates as this would allow public authorities to justify incompetence, disorganisation and poor record keeping providing they were acting in good faith. Although in those rare cases where the information turns up at a later date, this may cause the Commissioner to reconsider the extent to which the original estimate was reasonable because, for example, in the James case, it was arguable that the public authority’s failure to take advantage of the senior civil servant’s available knowledge would lead to the conclusion that the original estimate was not reasonable.