Line to take - LTT174 - Calculating costs where request(s) span several access regimes (DPA/FOIA/EIR)

• FOI/EIR: FOI, EIR
• Section/Regulation: s12, reg 12(4)(b)
• Issue: Calculating costs where request(s) span several access regimes (DPA/FOIA/EIR)
• Source: FOI Policy, DN
• Details: FS50143525
• Related Lines to Take: LTT119, LTT122, LTT138, LTT141, LTT145, LTT147, LTT175
• Related Documents: Fees Regulations SI 3244, Council Directive 2003/4/3/EC, Council Directive 95/46/EC
• Contact: LA
• Date: 09/04/2010
• Policy Reference: LTT174
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

When aggregating requests for the purposes of considering section 12 FOIA (costs), or regulation 12(4)(b) of the EIR (manifestly unreasonable), requests that clearly fall under different access regimes cannot be aggregated.

As the ICO considers that multiple requests within a single item of correspondence actually comprise a number of separate individual requests, the same will apply when considering the aggregation of the individual elements of a multi part request (which will from this point onwards just be referred to as individual or single requests).

In situations where each individual request is for information that clearly falls under only one access regime (see example 1 below) , then only the aggregated costs of complying with “FOI only” requests should be allowed under FOIA, and only the aggregated costs of complying with “EIR only” requests should be allowed under EIR.

However, where a single request is likely to cover information that falls under more than one regime, (see example 2 below) then the Commissioner:

• will allow the costs (permitted by the Fees Regulations) of responding to the whole request under section 12 FOIA but won’t allow the costs of considering which regime applies (the costs of applying section 39 or section 40)
• will consider the circumstances of the case under the EIR to ascertain whether the costs that would be incurred in providing any environmental information mean that the request is manifestly unreasonable.

Nb. This line provides detailed analysis of how to deal with a small minority of cases where some complex issues may arise. However, many cases will not be as complicated as the examples given here. Therefore, careful consideration should be given as to how much of the technical detail in this ‘line to take’ it is necessary and appropriate to include when drafting a Decision Notice. If you require assistance in deciding how much detail to go into then please discuss with the policy team.

Please also read in conjunction with LTT175 - Flowchart on process for calculating costs where request(s) span several access regimes (DPAI FOIA/EIR).

Further Information

The Commissioner’s general approach to casework, and advice to public authorities, is that requests should be dealt with under the appropriate access regime (FOIA, DPA or EIR) from the outset.

The Commissioner is clear that the same approach should apply whenever possible, when considering the costs of complying with requests. It is thus essential to get into the right legislative regime from the outset, as far as it is possible.

The Commissioner’s preferred approach as set out in this line acknowledges the precedence of European law which provides the freestanding right to access environmental and an applicant’s own’ personal data via EIR and DPA (Council Directive 2003/4/3 EC and Data Protection Directive 95/46 EC respectively). Their intention is clearly to provide separate access regimes specifically in respect of environmental information and applicants’ own personal data respectively. Using s12 FOIA to refuse individual requests for environmental information or applicants’ own personal data just because those individual requests have been made at the same time as other requests which properly fall for consideration under FOIA disregards this intention and the higher authority of European law.

The DPA / FOIA hybrid case procedure provides a process for getting assistance from DP colleagues in deciding whether requests are likely to be Subject Access Requests (SARs), in potential mixed DPA/FOIA or mixed DPA/EIR cases.

LTT80 contains a section entitled "Defining as environmental information without viewing the information" which may be helpful in considering potential mixed FOIA / EIR cases.

Cases where individual requests fall neatly under one regime

In cases where each separate request is for information that would clearly fall under only one access regime this approach should not cause any difficulty.

Eg Example 1: In a single letter an applicant makes a number of individual requests:

* Request a) “FOI only” request — all information requested non DPA & non EIR information

* Request b) “EIR only request — all information requested is Environmental information

* Request c) “EIR only” request — all information requested is Environmental information

* Request d) “FOI only” request — all information requested is non DPA & non EIR information

* Request e) subject access request under the DPA

Assuming that the requests are for similar information (see LTT145) then the Commissioner would allow aggregation of requests a) and d) under FOIA and would allow aggregation of requests b) and c) under the EIR. Request e) would be dealt with separately under the DPA. He would not allow aggregation across regimes in this situation

In such cases only the costs of dealing with FOI requests should be allowed under section 12 FOIA.

Similarly only the costs of dealing with requests for environmental information should be considered under regulation 12(4)(b) of the EIR.

Any Subject Access Requests should be dealt with via normal DP case handling procedures.

The Commissioner notes that this approach was not taken in DN FS50154310 — the Commissioner’s position has now changed and we will not follow the approach taken in this DN.

Cases where a single request is for information falling under multiple access regimes, or where it is not clear which legislation applies

However, in cases where it is not clear from the request which legislation the information is likely to be subject to, or where a single request is likely to cover information that falls under more than one regime the situation is more complex.

e.g. Example 2:

Request a) “mixed request” - a single broad request such as “all correspondence sent to chief executive” is made. As the chief executive may be involved in numerous issues it is likely that in order to answer this one single request a mixture of environmental information and FOI (non DPA, non EIR) information would need to be provided.

This situation presents a particular problem where a request is being refused because of costs, in that the information may really need to be reviewed in order to decide which regime applies, but because the refusal is being made on the grounds of costs the information won’t have already been collated and thus won’t be readily available to view.

Approach under FOIA

In such cases the Commissioner’s approach will be to allow the costs (permitted by the Fees Regulations) of dealing with the whole request under section 12 FOI, even where some of the costs may be related to environmental information or the applicant’s personal data.

This is because (whilst acknowledging the EC intention to provide separate access regimes for environmental information and applicants’ own personal data noted above, and dealing with such requests outside of FOIA wherever this is practicable) technically, any request meeting the requirements of section 8 of the Act is a valid Freedom of Information request. This would include where the request may contain environmental information, to which the exemption at s39 would apply, and / or the personal data of the applicant to which the exemption at section 40(1) or section 40(5) would apply.

As normal (in line with LTT115) it will not be permissible to allow any costs relating to the application of an exemption under section 12 FOIA as this is not permitted by the fees regulations. This will mean that whilst the costs of identifying, locating retrieving and extracting the information to meet the request in full will be allowed under section 12, any costs related to identifying and redacting environmental information under section 39 or the applicant’s personal data under section 40, should not be allowed.

It should be noted that this does not remove the applicant’s separate right of access to environmental information under EIR, or to their own personal data under the DPA. So although the whole request may potentially be validly refused under s12 FOI, the public authority, and the ICO will still need to consider the public authority’s separate obligations under the EIR and the DPA. Whilst this may appear onerous, and may require multiple decisions to be made under FOIA, DPA and EIR, the Commissioner considers that the approach is reasonable and balances the rights of applicants against a workable, proportionate interpretation of the legislation.

Approach under EIR

Under the EIR the situation differs as the regulations only apply to environmental information as defined at regulation 2(1). In considering whether a request is manifestly unreasonable under the EIR it will only be permissible to take into account the costs related to the provision of environmental information. However, in practice it may be that before a public authority is able to identify any environmental information it will need to take the preliminary step of collating all the information falling within the scope of the request. In this situation the Commissioner will allow the costs of collating all the information when considering if a request is manifestly unreasonable, because he would accept that this forms part of the cost of making the environmental information available.

The approach set out above does not mean that in every case it will be acceptable to allow the costs of collating all the information. There will be a judgement to be made about whether such a preliminary step is actually necessary in the circumstances of a particular case. In decision notice FS50143525 the Commissioner considered that such a preliminary step was necessary and thus allowed the costs of collating all the information falling within the scope of the request in his consideration of whether the request was manifestly unreasonable. The Commissioner would not however allow this approach, for example, in a case where it is apparent that the environmental information is to be found in certain locations and the non-environmental information is to be found elsewhere. In this situation the Commissioner would only allow the costs of searching for the environmental information in his consideration of whether the request was manifestly unreasonable under the EIR.

The situation under the EIR also differs in that the cost of separating out the environmental information from the non-environmental information may be validly taken into account when considering if the request is manifestly unreasonable. This is because the 12(4)(b) decision under EIR is not limited by the FOIA fees regulations, and in any case the identification of environmental information would not be classed as applying an exception. This may be relevant in cases where we have accepted the necessity of the preliminary step of collating all the information, but find that these costs (when considered with other relevant factors as per LTT147) are not sufficient to render the request manifestly unreasonable. In this situation the additional costs of separating out the environmental from the non-environmental information may be requested from the public authority and taken into account before reaching a final conclusion on whether the manifestly unreasonable exception applies.

Cases where there are a number of single requests and some of them are for information falling under multiple access regimes, or it is not clear for each individual request which legislation applies

So long as the requests are sufficiently similar (see LTT138), it will be permissible to aggregate a number of requests which are each for mixed information or to aggregate “mixed” requests with “FOI only” requests. This is in line with the approach detailed above that aggregation will not be allowed where individual requests clearly fall under different access regimes.

Example 3:

• Request a) “mixed” request — some information requested Environmental Information, some is FOI (non EIR and non DPA) information
• Request b) “EIR only request — all information requested is Environmental information
• Request c) mixed” request — some information requested is the applicants own personal data some is FOI (non EIR and non DPA) information
• Request d) “FOI only” request — all information requested is non DPA & non EIR information Request e) subject access request under the DPA

Assuming that the requests are for similar information (see LTT145) then the Commissioner would allow aggregation of requests a), c) and d) under FOIA and would allow the costs related to providing any environmental information for request a) (subject to “approach under EIR” set out above) to be aggregated with request b) under the EIR.

(*) Footnote

Whilst the Commissioner would discourage the use of FOIA refusal notices for requests which are only for environmental information, or only for personal data, he considers this to be a reasonable approach in these limited circumstances where there is a costs issue and a mix of applicable access regimes.