Line to take - LTT171 - Information vs documents

• FOI/EIR: FOI
• Section/Regulation: s1, s11
• Issue: Information vs documents
• Source: Policy team, PARF
• Details: PARF FS50268791
• Related Lines to Take: LTT156
• Related Documents: Glasgow CC v SIC [2009] CSIH 73, Scottish Information Commissioner’s guidance on validity of FOI requests, Lords Hansard 17/11/2000 col 931
• Contact: LS
• Date: 25/02/2010
• Policy Reference: LTT171
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

The Act provides a right of access to information rather than copies of documents. However, a request for a copy of a document will generally be a valid request for all of the information contained within that document.

In considering whether the public authority has complied with the request, the Commissioner will therefore consider whether all of the information recorded in the document has been provided. It will not be sufficient to rephrase the document or provide an outline or summary of its contents unless the applicant has specifically expressed a preference for a digest or summary under s11(1)(c).

If the applicant has expressed a preference to inspect the actual documents (or copies of the documents), the public authority should provide a reasonable opportunity to do so unless this is not reasonably practicable.

Further Information

Although the Act provides a right of access to information rather than copies of documents, requests may refer to specific documents as a way to describe the information requested. A request for a particular document should generally (unless the context makes clear that this is not the case) be interpreted as a request for all of the information recorded in that document.

A document will often contain more information than just the main text. For example, an email will contain transmission information in the header and footer and may contain contact details in the email signature. What a person’s actual signature looks like on a letter will be information over and above their name. The exact wording or phrasing of a document is also part of the information. However, the physical characteristics or evidential quality of a document (eg the paper it is printed on, the value of an original over a photocopy as evidence) are not information recorded in that document — for the purposes of the Act a complete and accurate copy will record the same information as the original.

In practice, if a copy of a document has been requested, the easiest and most reliable way to ensure that all the information within it has been provided will therefore be to provide a copy. However, in some cases it may also be possible to provide an accurate transcript of the contents of a document. The important thing is to consider whether all of the information contained in the document has been provided.

Scottish Court of Session — the Glasgow City Council decision

In Glasgow CC v SIC [2009] CSIH 73, the Scottish Court of Session considered a case where, although the applicant acknowledged that the same information was available elsewhere, they specifically wanted the public authority to provide copies of the documents. The Court confirmed that FOISA entitles requesters to the information within a document, rather than a copy of the document itself. To the extent that this request was specifically for copies of the documents over and above the information they contained, it was invalid. The Court rejected an argument that the copy documents were “information” distinct from the information contained within them.

As a general point of principle, the Commissioner is not bound by Court of Session decisions on FOISA, although they may of course be considered persuasive where the terms of the Scottish legislation mirror the terms of the Act. Nonetheless, we do not consider that this decision conflicts with our approach as it was decided on the basis that all of the information in the documents had already been made available. At para 50, the Court stated: “Plainly, if those concessions had not been made, this aspect of the case would have had to be considered on a materially different basis.” This means that it supports our approach in principle, although it may not be particularly clear or useful on the facts as the Court was not asked to consider whether or not all of the information had in fact already been provided in that case.

At para 45, the Court confirmed: “Where the request does not describe the information requested... but refers to a document which may contain the relevant information, it may nonetheless be reasonably clear in the circumstances that it is the information recorded in the document that is relevant.”

In addition, para 48 of the decision states: “The difference between the original and a copy... does not consist in any difference between the information recorded in each document: that information, if the copy is true and accurate, will be identical” (emphasis added). By implication this would appear to support our view that, if a copy is not true and accurate, it will not contain all of the same information.

Our line is also consistent with the Scottish Information Commissioner’s guidance on the validity requests following this Court of Session decision, which states: “FOISA provides a right to obtain information and not a right to obtain copies of specific documents. However, this does not mean that a request for a copy of a document is automatically invalid, as long as it is reasonably clear from the request that it is the information recorded in the document that the applicant wants.”

Effect of s11 (means of communication)

• Summarising documents

Although an applicant can ask for a digest or summary of the requested information under s11(1)(c), if they do not ask for a summary we do not consider that s11 means PAs can unilaterally choose to summarise a document.

If the applicant does not state a preference, s11(4) states that the PA can provide the information by any means that are reasonable in the circumstances. In theory, the PA therefore has the right to provide a summary of the requested information if reasonable to do so. However, in practice the Commissioner cannot envisage a situation where the provision of a summary would be reasonable, as the PA would not actually be communicating all of the requested information. In fact, providing only a summary would generally breach s1(1)(b) because it would not include all of the information requested. If this were not the case s11 would allow PAs to sel ectively rephrase, edit or redact the information by the back door without considering exemptions.

• Inspecting documents

Although a request is for information not copies of documents, the requester can ask to inspect a record containing the information under s11(1)(b). In such cases the PA will need to give the requester a reasonable opportunity to inspect copies of documents (or the actual originals, depending on the applicant’s preference), unless it is not reasonably practicable to do so (eg due to the amount of redaction required or the fragility of the original).

It is not necessarily clear from the wording of s11(1)(b) itself whether the inspected record should be the original document, a copy, or whether it can be a newly created transcript. However, the Commissioner considers that the intention behind this provision was to allow applicants to inspect original records where reasonably practicable, otherwise there would be little benefit in the Act allowing for inspection. Support for this interpretation can be drawn from the statement of Lord Falconer during the passage of the FOI Bill: “If the applicant requests... to inspect the actual document, Clause 10 requires the authority to give effect to that preference so far as is reasonably practicable to do so. That includes “blanking out” information, such as names that cannot be disclosed.” (Lords Hansard 17 October 2000 at column 931). This also accords with our approach to inspection in reg 6 of the EIR, set out in LTT156.

Of course, if the applicant is happy to inspect copies of the documents rather than the originals, the PA will not need to provide the originals in order to comply with that preference.