Line to take - LTT90 - "Duty" to read a request objectively

• FOI/EIR: FOI
• Section/Regulation: s1(3), s8, s16
• Issue: “Duty” to read a request objectively
• Source: Information Tribunal, agreed by GS
• Details: Berend / LBRT (12 July 2007); Boddy / North Norfolk District Council (23 June 2008)
• Related Lines to Take: LTT87, LTT89, LTT91
• Related Documents: EA/2006/0049 & EA/2006/0050 (Berend), EA/2007/0074 (Boddy)
• Contact: LA
• Date: 28/07/2008
• Policy Reference: LTT90
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Whilst a public authority has a duty to read a request objectively, this does not mean that it is not permitted to seek clarification under s1(3) FOIA, or Regulation 9 EIR, in circumstances where it thinks that an applicant may in fact be looking for something other than what has been asked for.

If when making a request an applicant draws the public authority’s attention to their contemporaneous dealings with the PA, and it is clear that the request should be considered in this context, then if this renders the request ambiguous or unclear the duty to provide advice and assistance will be triggered.

Further Information

Berend v the ICO & London Borough of Richmond upon Thames:

In the case of Berend v the ICO & London Borough of Richmond upon Thames (LBRT) the Tribunal found that, “the request should be read objectively. The request is applicant and motive blind and as such public authorities are not expected to go behind the phrasing of the request” and “there was no requirement for LBRT to seek a second meaning or ask for clarification”

In support of its position, the Tribunal referred to the definition of a request provided at s8(1)(c), and found that contained, “no caveat or imputation of subjectivity.”

Section 8(1)(c) provides that:

“In this Act any reference to a request for information is a reference to a request which

(c) describes the information requested.”

Whilst the ICO accepts that a public authority is only required to read a request objectively, our view is that this does not mean that it is not permitted to seek clarification under s1(3) in circumstances where, because of a public authority’s prior knowledge of an applicant’s interests, it thinks that they may in fact be looking for something other than, or in addition to, what has been asked for.

We are of the view that a public authority, if it is aware that an applicant may require information other than that which is requested, may claim under s1(3) that it reasonably requires further information to identify the information requested.

If a public authority claims that it needs further information to identify the information requested under s1(3) then the duty to provide advice and assistance under s16 is triggered. The public authority may seek clarification where it has prior knowledge and reasonably requires further information to determine what is actually being requested, even if the request as worded is objectively clear.

However if a public authority in this situation reads the request objectively and responds to the request as phrased without exercising its right to require further information under s1(3) then no duties under s16 arise. It is not the case that a public authority must look for other possible readings of a seemingly clear request or check previous correspondence.

Section 8

The ICO does not agree that reference to s8 is relevant. Section 1(1) provides the right to have information communicated etc. to any person making a “request for information.” Section 8 defines a “request for information”. Section 1(1), however, has effect subject to the provisions of the rest of the section, subsection (3) of which removes the obligation to comply where a public authority reasonable requires further information in order to identify and locate the information requested.

This means that, contrary to the Tribunal’s conclusions, a request for information may “describe the information requested” yet still be one for which a public authority requires further information to identify it.

Boddy v the ICO and North Norfolk District Council:

A similar situation arose in relation to advice and assistance under the EIR in the Tribunal case of Boddy v the ICO and North Norfolk District Council.

Here the IT stated that the “correct approach to the law is that a request for information ought to be “taken at face value”, i.e. it should be read objectively” (para 25), and ““we do not see that there can be any legal obligation on the Council to “second guess” what was a clear request” (para 26). This is in line with the IT’s comments above in relation to s16 FOIA in the Berend case.

However the IT in Boddy added a qualification to this approach saying that “if an applicant had been in discussions or correspondence with the public authority about a particular matter then we would expect the public authority to take into account the contemporaneous dealings with the applicant to clarify the information that was being requested.” (para 25).

The ICO line remains as detailed above, that if a request is clear but a public authority suspects, from its prior knowledge of the applicant that they may require different or additional information to that specified in the request, then the PA is permitted but not required to seek clarification of the request. We would not expect the public authority to check for previous correspondence when an otherwise clear request is received.

However, if when making a request the applicant draws the public authority’s attention to the contemporaneous dealings and makes it clear that the request should be considered in this context, then if this renders the request ambiguous or unclear the duty to provide advice and assistance will be triggered. This will apply equally to FOIA and EIR.

N.B. This LTT should be read in conjunction with LTT89- More than one objective interpretation of a request, where the particular circumstances of the Berend case are considered in more detail.