On 30th October 2017 the First-Tier Tribunal (Information Rights) promulgated its decision in McGoldrick v The Information Commissioner; the Tribunal’s decision made two points which it is worth considering. The request for information in question was made to HM Treasure concerning the Mersey Tunnels; the full terms of the request for information are set out in the Tribunal’s decision.
The first point relates to the use of section 12 of the Freedom of Information Act 2000 where some of the information that may fall within the scope of the request is likely to be environmental information; and the second is on the duty of a public authority to provide advice and assistance.
On the first issue, the Tribunal (at paragraph 12) states that it
“agrees with the Information Commissioner that the appellant’s request could cover both non-environment and environmental information, for the purposes of regulation 2(1)(c) but that it would defeat the purpose behind section 12 and regulation 12(4)(d) if a public authority were obliged to collate the requested information in order to ascertain what information fell under either FOIA or the EIR. We agree, therefore, that HM Treasury was correct to consider the request under section 12, even though it might include some environmental information.”
The Tribunal considers that it is appropriate for an authority to not separately identify environmental information and deal with that under the Environmental Information Regulations 2004 where there is a substantial volume of information which covers both environmental and non-environmental information. It seems that the Tribunal is of the view that there is no need to issue a refusal notice citing Regulation 12(4)(b) [although the Tribunal refers to Regulation 12(4)(d), but this seems as though it may be a typographical error] where a request is going to exceed the appropriate limit and it is likely that there is going to be environmental information within the ambit of the request.
On the second issue, the Tribunal decided that, on the facts of the present case, that HM Treasure did not comply with its obligation to provide adequate advice and assistance and overturned the Commissioner’s decision that it had. In this case, HM Treasure told the requester that he might like to consider refining his request by reducing the amount of information requested. The Commissioner considered that such a suggestion was sufficient in order to discharge the authority’s duty to provide advice and assistance.
At paragraph 18 of the Tribunal’s decision it stated:
“Given the widespread nature of computer-driven searches for information in connection with FOIA requests, it is, we consider, reasonable to expect large, sophisticated organisations, such as HM Treasury, to point out to requesters how the most thorough search is likely to exceed the relevant financial limit under the Regulations made by reference to section 12, and to suggest a reformulation of the request in terms specific to computerised searches. Accordingly, if HM Treasury had asked the appellant to reformulate his request by reference to emails and documents containing both the terms “Mersey tunnel” and “toll”, the appellant may well have reformulated his request.”
The Tribunal appears to be suggesting that a large public authority may have to go a bit further than a smaller authority in order to discharge its duty to provide advice and assistance. It appears that, in certain cases, it may be necessary for a public authority to not only suggest that a requester reformulate their request but rather to go further and actually suggest ways in which it could be reformulated; especially when computer-driver searches for information are involved.
This certainly does fit with the way in which the legislation has been drafted; Section 12(1) of the Freedom of Information Act 2000 does include “so far as it would be reasonable to expect the authority to do so” within its terms. So, where an authority is issuing a refusal notice under Section 12 of the Freedom of Information Act 2000 authorities, especially larger ones, ought to consider whether they are capable of suggesting how a request could be refined, not just that the requester may wish to consider refining it.
We are able to provide advice and assistance in connection with a range of Freedom of Information matters, including appeals against decisions of both the Scottish and UK Information Commissioners. If you would like to do discuss a Freedom of Information, or any other Information Law, matter with us then you can contact Alistair Sloan on 0345 450 0123. Alternatively, you can send him an E-mail.