Line to take - LTT88 - Clarifying requests

• FOI/EIR: FOI
• Section/Regulation: s16, s45 code of practice
• Issue: Clarifying requests
• Source: Information Tribunal, Line agreed by GS
• Details: Berend / London Borough of Richmond upon Thames
• Related Lines to Take: LTT87, LTT89, LTT90
• Related Documents: EA/2006/0049 & EA/2006/0050, s45 code of practice
• Contact: LA
• Date: 04/02/2008
• Policy Reference: LTT88
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Some of the provisions in part II of the section 45 code of practice are restricted to circumstances where there is a need for a public authority to clarify the request with the applicant so that it can identify and locate the information sought. These particular provisions do not apply where the public authority is able to identify and locate the information without further clarification.

Further Information

N.B. This LTT should be read in conjunction with LTT87 limits of section 16

Clarifying Requests

Paragraphs 8 to 11 of the s45 code deal with “clarifying the request” and relate specifically to circumstances where a public authority needs more detail to enable it to identify and locate the information sought.

Paragraph 8 says that public authorities are entitled to ask for more detail if needed to enable them to identify and locate the information sought. In this circumstance public authorities should assist applicants in describing more clearly the information requested. The code does not require public authorities to assist applicants in describing the information more clearly if they don’t need more detail to identify and locate the information sought..

Paragraph 9 says that “the aim of providing assistance is to clarify the nature of the information sought” and specifies that “it is important that the applicant is contacted as soon as possible, preferably by telephone, fax or e-mail where more information is needed to clarify what is sought”. The code does not require a public authority to contact the applicant in this way where more information is not needed to clarify what is sought.

Paragraph 10 lists some examples of what appropriate assistance might include “in this instance”. The phrase “in this instance” refers to the circumstance detailed in points 8 and 9, where more information is needed to clarify what is sought. The examples provided do not constitute an exhaustive list and public authorities should be flexible on their approach to the provision of advice and assistance in this instance.

This means that in circumstances where a public authority is able to identify and locate the information sought without any further detail, then it is not incumbent upon it to contact the applicant and volunteer, for example, access to indexes or details of other related information that it holds. Nor does the code require the public authority in this circumstance to contact the applicant to discuss their request with them and check that they have actually asked for what they want.

The Tribunal in Berend v The in formation Commissioner and London Borough of Richmond upon Thames (LBRT) confirmed that “the only obligation to initiate contact with the applicant under the Section 45 Code relates to the situation that arises where the request requires clarification” and accepted that in the circumstances of this particular case “the request appeared plain when read objectively by the public authority consequently there was no requirement for LBRT to seek a second meaning or ask for clarification”

It should be noted however that although the Tribunal was satisfied that the public authority’s objective reading of the request meant that no section 16 duty arose, it did find that the request could be objectively read in 2 ways, which gave rise to a section 1 breach. This issue is discussed further in LTT89

Other sections of part II of the code

The same principle as demonstrated above should be applied when considering the section 16 duty in relation to other sections of part II of the code. For example paragraphs 4 to 7 only apply to the provision of advice and assistance to those proposing to make requests and are not requirements for compliance with s16 in other circumstances.