The Freedom of Information Act 2000 (FoI) does not just require public authorities to disclose information they hold but also information that is held on their behalf (section 3(2)). Local authorities are increasingly outsourcing management of services to the private sector. Such arrangements are often scrutinised by interested parties making FoI requests for information which is generated and held by the private sector during service delivery. The First-Tier Tribunal (Information Rights) has recently ruled that even information generated for internal use by the private sector can be subject to FoI.

Visser and IC v LB of Southwark (EA/2012/0125) concerns a company (Fusion Ltd) which runs a swimming pool on behalf of the London borough. The applicant requested a copy of the attendance register, which is signed by schools when attending swimming lessons. The council’s position was that the register was not held by Fusion on its behalf because the contract did not require Fusion to maintain the register and the council had no use for the information. The commissioner agreed.

On appeal the tribunal sided with the applicant. Among other things, it focused on the legal relationship between Fusion and the council. It noted that the contract required Fusion to increase the pool’s usage by schools. Fusion used the register to demonstrate whether it had met its usage targets by including usage information in the monthly performance reports submitted to the council. When scrutinising the reports, the council could reasonably request the register to verify the figures. Therefore the tribunal concluded that it was information held by Fusion on behalf of the council and so subject to FoI.

Vexatious requests

Previously, the tribunal has held that costs alone can be taken into account when deciding if a request is vexatious under section 14. In Independent Police Complaints Commission v IC (EA/2011/0222), the tribunal said: ‘A request may be so grossly oppressive in terms of the resources and time demanded by compliance as to be vexatious, regardless of the intentions or bona fides of the requester.’

On 31 November, this reasoning was followed by the tribunal in Salford City Council v IC and Tiekey Accounts (EA/2012/0047). The applicant had requested, among other things, a copy of all manuals, books of procedures, FAQs, worksheets and such used by Salford Council for the purpose of deciding claims for housing and council tax benefit. The council responded by saying that it was unable to comply with the request. It said that the request was too broad and encompassed a large quantity of material which would need to be checked in case it contained exempt material and therefore might need to be redacted. This would take approximately 31 days. It argued that the effort required rendered the request vexatious.

The tribunal noted that a reasonable estimate of the minimum cost of 31 days examination of the material was a sum many times the appropriate £450 limit under the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. Of course the expenditure, which would be necessitated by the disclosure, did not fall within those regulations. However, the tribunal considered that the chargeable expenditure under those regulations was helpful in considering whether the scale of costs might be proportionate. The tribunal ruled that the disproportionately high cost of a FoI request for minimal public benefit justified refusal on grounds that it was vexatious.

This is an interesting case. It now seems that, while the time it takes to redact exemption information cannot be taken into account when deciding whether the appropriate limit (for fees purposes) has been exceeded, it can be taken into account when deciding whether a request will impose a significant burden on the public authority and is consequently vexatious. This is good news for public authorities.

Publication schemes

To what extent can a public authority charge for information, or even make a standard charge, outside the FoI fees regulations?

In January, the tribunal considered this in Davis v ICO and Health and Social Care Information Centre (EA/2012/0175). The requested information consisted of health statistics which the public authority was willing to provide to the appellant (as part of its ‘tailor-made service’) via its publication scheme for a charge of £1,550. This, it said, was based on the time and effort it would take to extract the information from its records. It claimed that the basis of charging had been agreed with the Information Commissioner’s Office (ICO) when the ICO’s model publication scheme was first adopted. It therefore claimed the exemption from the general right of access under section 21, that is to say, that that information was reasonably accessible by other means. The appellant argued that the high charge meant the information could not be considered to be reasonably accessible to a person of ordinary means.

The tribunal focused on sections 19, 20 and 21 of the FoI. Section 19 requires public authorities to adopt publication schemes, subject to approval by the commissioner, for the dissemination of information with or without charge. Section 20 provides for the commissioner to approve model publication schemes, which public authorities may adopt without further approval. Section 21(3) states that information is ‘not to be regarded as reasonably accessible to the applicant merely because it is available from the public authority on request, unless the information is made available in accordance with the authority’s publication scheme and any payment required is specified in, or determined in accordance with, the scheme’.

The tribunal interpreted this provision as meaning that if a scheme has the commissioner’s approval, and if the charge is specified in the scheme, the commissioner and the tribunal are required to regard the information as reasonably accessible. The commissioner’s approval of the model scheme was conclusive. There was no scope for anyone, including the commissioner and the tribunal, to judge the accessibility of the information by reference to the charge or any other factor.

This is a strange decision. It now seems that a public authority wishing to impose a charge for the disclosure of information under FoI (outside of the normal fees provisions) merely has to include the charge in its publication scheme (which may be an adopted model scheme as in this case). If the commissioner subsequently approves the scheme, then section 21 will apply even though the charges may not reflect the actual costs of retrieval of the requested information.

Ibrahim Hasan is a solicitor and director of Act Now Training (