Line to take - LTT126 - Failure to identify questions as requests

• FOI/EIR: FOI
• Section/Regulation: s1, s8
• Issue: Failure to identify questions as requests
• Source: Information Tribunal; Policy Team; GS
• Details: Richard Day / DWP (24 September 2007); Fowler / Brighton & Hove City Council (6 November 2007); Welsh / IC (20 March 2008); John Allison / HM Commissioners for Revenue & Customs (22 April 2008); Riniker / MoJ (22 September 2009)
• Related Lines to Take: LTT8, LTT29, LTT65, LTT89, LTT90
• Related Documents: EA/2006/0069 (Day), EA/2006/0071 (Fowler), EA/2007/0089 (Allison), EA/2007/0088 (Welsh), EA/2007/0132 (Riniker)
• Contact: HD/LS
• Date: 20/11/2009
• Policy Reference: LTT126
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

1. Any written question put to a public authority is technically an FOI request.

2. Where a public authority fails to deal with a question as an FOI request, the Commissioner may find the public authority has committed one or more procedural breaches including a breach of s1(1)(b) (see LTT29) for failing to deal with the request in accordance with the Act.

3. Further, if a public authority initially fails to recognise it as such, the applicant may challenge the response which should alert the public authority to the need to consider the question under FOIA.

4. The practical implications of this line are set out below.

Further Information

Part 1. Any written question can technically be an FOI request

Section 8 of the FOIA states:

8.- (1) In this Act any reference to a “request for information” is a reference to such a request which-

(a) is in writing,

(b) states the name of the applicant and an address for correspondence, and

(c) describes the information requested

84. In the Act, unless the context otherwise requires-

- “information” (subject to sections 51(8) and 75(2)) means information recorded in any form:

Richard Day & Department for Work and Pensions (DWP)

In the above case, the complainant asked a number of questions about the Child Support Agency (CSA) which were based on his view that the CSA was poorly run. One such example is:

“Q5. When are proper compensation payments for computer errors and administration going to be made and can individuals directly sue the American company who installed the CSA system?”

The DWP argued that this was not a valid request since it contained an unaccepted assumption that maladministration had occurred which should be compensated. The Tribunal said at paragraph 15:

"The Act only extends to requests for recorded information. It does not require public authorities to answer questions generally, only if they already hold the answers in recorded form. The Act does not extend to requests for information about policies or their implementation, or the merits or demerits of any proposal or action — unless of course, the answer to any such request is already held in recorded form..."

The Tribunal went onto say that:

“.... there might be a straightforward factual recorded answer even to question 5.. .suppose for example, that following some report on the CSA, Parliament had approved a scheme enabling individuals “to sue the American company who installed the computer system” and providing for proper compensation payments to be made”. If so, Mr Day’s fifth question, far from being tendentious and outside the Act, could be answered simply, by providing recorded information on the implementation date of the scheme...”

This approach was supported by the following Tribunal decision although the judgment in Fowler did not reference the earlier decision in Day.

Fowler & Brighton & Hove City Council

In this case, one of the complainant’s many questions regarding wheelie-bins and the Council’s policies on recycling was:

“(q) I asked the Council to provide from its records details of why it considered that the system of working that it had introduced was more efficient, when that system of working appeared to be less efficient”.

At paragraph 12, and using question (q) as an example, the Tribunal said:

"…it is always possible that the Council may hold recorded information which answers that question: there may have been a report prepared for the Council setting out the pros and cons of different proposals, reaching a reasoned conclusion. However in most cases an individual reply will have to be drafted. ...neither EIR nor FOIA require public authorities to go to such lengths. The obligation is to provide recorded information, not to create a record so that an answer can be given...”

The following decision from the Tribunal does not reference either of the above cases and does not follow the approach adopted in Day and Fowler and the Commissioner contends that this case can be distinguished on its own circumstances.

John Allison & HM Commissioners for Revenue and Customs

The complainant was concerned about the transfer of his pension funds to Scottish Mutual and in particular the complainant wanted to establish the nature and extent of the trusteeship operated by Scottish Mutual. One of the questions asked was - “Q4. Does the contradiction of clauses 8 & 9 of the approved Deed of Trust by the Standard Provisions at clause 2(i)(c) nullify the approval given... 7”.

At paragraph 52 the Tribunal said:

"...the Tribunal would add that it does not regard question 4 as constituting a proper information request under FOIA in that it seeks an interpretation of the approved Deed of Trust and standard provisions...” (emphasis added).

Using the approach taken in Day and Fowler, this would be an FOI request because a document which does comment on the contradiction of these clauses may exist. However if there was no such document, then the proper response of the public authority should have been to deny that it held any information to answer the request to fulfil its section 1 obligations rather than stating that the question was not a valid request and thus fell outside the Act.

The Commissioner also distinguishes this case because this issue was not at the heart of the case - the Tribunal suggests at paragraph 52 that its comments on question four were for ‘completeness only’ and further that the “...precise characterisation of these and perhaps other questions remains academic on the facts of this case…" if the exemption claimed is found to be engaged. The Commissioner would submit that this is incorrect because until it has been clarified whether a request is a valid request for FOI purposes then a consideration of the exemptions would not be required. As such, the Commissioner does not believe that the Tribunal gave its fullest consideration to the issue of whether a question can be a request and so we will not follow the approach taken in Allison.

Riniker / Ministry of Justice

Questions about the publication of information may also be valid requests for information and should be considered carefully. In Riniker, the complainant made a number of requests to the Privy Council Office in relation to the Visitor of the University of London, including asking how many decisions the Visitor had made and the question:

“Where can copies of these decisions be obtained?”

The public authority simply responded that the decisions were not published. However, the Tribunal interpreted the question as a request to be provided with copies of the decisions, saying:

“It is said that Ms Riniker’s request should be read simply as asking for a place where the decisions could be obtained and not for the decisions themselves and that the answer given to the effect that the Privy Council Office did not publish the decision letters was sufficient because it made clear to her that they could not be obtained anywhere. We are bound to say we find this approach rather disappointing. We are of the view that Ms Riniker’s request read in context and in the fight of sections 1 and 16 of the 2000 Act clearly required an answer to the effect that copies of the decisions were held by the Privy Council Office but (if it was the case) would not be disclosed by virtue of section 40(2).”

The Commissioner does not accept that section 16 can affect the objective meaning of a request, and does not accept that this question can be objectively read as a request for copies of the decisions themselves. He would not expect a public authority to read anything into this question and to consider providing the information referred to, unless the wording of the question more clearly asked for the information itself (eg “Can I obtain copies of these decisions?”).

However, a question asking where or how information can be obtained would still be a valid FOI request for any information held relating to where or how that information can be obtained. A proper response under the Act is therefore likely to require the public authority to provide information on its FOI request procedure. If the individual appears unaware of the provisions of the Act, there will also be a s16 duty to inform them as a potential requester of the right to request information under the Act (in accordance with paragraph 6 of the section 45 code of practice). As the public authority would therefore be required to inform the individual concerned that they can make a formal request for the information, the Commissioner does not consider that a literal interpretation of such questions should ultimately frustrate or limit the disclosure of information.

Alternatively, if the public authority suspects that the applicant may in fact have intended to ask for copies, it can seek clarification under s1(3). If the wider context of the request renders the meaning unclear this may also trigger a duty to provide advice and assistance. See LTT90 for more information.

Part 2 — Practical implications

The Commissioner realises that public authorities will fail to recognise that some questions are requests and instead will deal with them as part of their course of business. The case of Welsh and the Information Commissioner is one such example as the Tribunal said at paragraph 23,

…The immediate context of the request is a four page letter.. ..the request itself is easy to miss, surrounded by a series of contentious legal arguments. It takes a considerable degree of familiarity with the legislation to separate out, as the IC was able to do, the one FOI request dealt with in this appeal, from the various other requests in the letter, including a number of subject access requests under the Data Protection Act, which were also contained in the letter…

However, where a public authority fails to deal with a question as an FOI request as such, the Commissioner may find the public authority has committed one or more procedural breaches, including a breach of s1(1)(b) (see LTT29) for failing to deal with the request in accordance with the Act.

Although this approach may seem onerous on public authorities it is important to remember that cases should only be investigated by the Commissioner after the applicant has first complained to the public authority so giving it a second opportunity to deal with the request under the Act (*)

If the applicant is satisfied with that response then it is unlikely that a complaint will be made to the ICO and no breaches will be recorded. Further, where an applicant does complain to the Commissioner and their complaint relates solely to the late compliance the case is likely to be closed under the robust case handling policy and again it is unlikely that the matter will result in a decision notice, within which to record the breaches.

There will however be cases that do proceed to a decision notice. These will usually be where the complaint concerns:

a) whether the requested information is held,

b) whether after identifying information that would answer the question the public authority was correct to withhold that information or

c) the issue of late compliance is part of a more complex complaint usually involving multiple requests.

In such cases, the Commissioner may record a procedural breach (see LTT29) within the decision notice in respect of the late compliance with the Act although any criticism of the public authority should be tempered by explaining that although a breach has occurred, it was not unrealistic for the public authority to have overlooked the request because it was phrased as a question.

(*) — If the request being framed as a question means that the public authority is unsure which piece of recorded information is sought by the complainant, they should seek to clarify this via s1(3) which may invoke their duties under s16.