The Freedom of Information Act 2000 (FoI) applies to information which is held by a public authority at the time it receives an access request. The First Tier Tribunal (Information Rights) recently examined the sometimes difficult question of when information is ‘held’ in British Union for the Abolition of Vivisection (BUAV) v Information Commissioner and Newcastle University (EA/2010/0064).

BUAV submitted a request to Newcastle University for the information set out in project licences, granted by the Home Office under the Animals (Scientific Procedures) Act 1986 (ASPA), which governed some published animal research at the university. Among other things, the university argued that it did not hold the licences.

It said that they were held by the named veterinary surgeon (NVS) pursuant to his statutory role under ASPA. At the preliminary hearing the tribunal had to decide whether the information was held by the university at the time it was requested.

The tribunal stated that ‘hold’ is an ordinary English word; it is not used in some technical sense in FoI. Sophisticated legal analysis of its meaning is not required or appropriate.

However, it is necessary to observe that ‘holding’ is not a purely physical concept, and it has to be understood with the purpose of FoI in mind.

The university submitted that the ASPA regime, which placed personal responsibility upon project licence holders, had the consequence that the requested information was held solely by those individuals and not by the governing body of the university.

The information commissioner supported this submission on the basis not of the ASPA regime alone, but having regard to the evidence, which he submitted showed that the information was in fact ringfenced so that only individuals with the relevant statutory roles could access it.

The tribunal ruled that, while the ASPA regime was undoubtedly a material consideration, it did not have the consequences contended by the university.

The personal responsibilities placed on individuals by the ASPA regime were an important feature of the system of control on animal research, since they avoid the danger of dilution that would result if the responsibilities were assigned merely to an institution.

But this striking feature of the regulatory structure should not be allowed to crowd out the larger picture.

The tribunal noted that animal research was a very substantial part of the university’s activities, carried out for university purposes on university premises.

The grants that were made to fund it were grants made to the university. The confidential information involved was generated within the university.

The licences were physically held by a professor Flecknell as the NVS for the university’s animal research, by arrangement with a Dr Hogan, to whom professor Flecknell was responsible.

Dr Hogan was the ASPA certificate holder not in his personal capacity but precisely because, as registrar, he represented the governing body of the university.

The tribunal therefore concluded that the governing body held the requested information through him and so it was subject to the FoI regime.

Cost of complianceSection 12 of the FoI and the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (SI 2004 No 3244) mean that when a public authority wishes to refuse a request on grounds that the cost of complying with it would be over the appropriate limit (£450 or £600), it can only take account of the cost in doing four things calculated at a rate of £25 per hour: Section 16(1) imposes a duty on the public authority to offer advice and assistance to the requestor, so far as it would be reasonable to do so.

  • determining whether it holds the information in question;
  • locating the information, or a document which may contain the information;
  • retrieving the information, or a document which may contain the information; and
  • extracting the information from a document containing it.

Section 16(2) provides that a public authority will be taken to have complied with its duty in this regard if it has complied with the Code of Practice, issued under section 45.

The code states that, when the cost of compliance would be over the appropriate limit, a public authority should consider providing an indication of what, if any, information could be provided within the limit, and should also consider advising the applicant that by reforming or refocusing their request the information could be supplied at a lower fee or at no fee.

Without doing this, the tribunal could rule that the public authority’s cost estimate has not been made on a reasonable basis (see Robert Brown v ICO and The National Archives (EA/2006/0088)).

In Dorothy Cooksey v Information Commissioner and Greater Manchester Police (EA/2010/0113), the information requests concerned documents relating to a murder investigation.

Greater Manchester Police refused to provide the information on the basis that, after aggregating the requests, the costs of doing so would exceed the appropriate limit (£450). It said that retrieving the information would involve searching through many boxes of documents which were not in any particular order.

The tribunal upheld the information commissioner’s decision and dismissed the appeal. However, it did criticise the police for their poor records management. It also made some important points about application of the fees provisions and the duty to advise and assist in section 16.

The tribunal was satisfied that the police had properly considered whether there were alternative methods of complying with the information requests.

However, it agreed with the police’s view that ‘it is only if an alternative exists that is so obvious that disregarding it renders the estimate unreasonable’.

The appellant had suggested some alternative sources, but there was no evidence to support these suggestions, and the tribunal concluded that, as they were speculative, it could not accept that they were sufficiently ‘obvious’ to render the estimate (based on the understanding that all the boxes had to be searched) unreasonable.

With regard to the duty to advise and assist, the tribunal accepted the argument that this was not a case in which the requestor could reasonably have been advised to reframe her request, to limit its scope or to make it in a way that would allow de-aggregation as per section 16.

The tribunal was satisfied on the basis of the evidence presented to it that the information was in so disorganised a state as to make it necessary for someone to search through all the boxes in order to find any one part of it.

The requestor also argued that there could reasonably have been a search up to the appropriate limit and that any information found in relation to her original request, even if only partial, would be useful.

The tribunal sympathised with this sentiment but ruled that it is not a correct approach to section 12. If the appropriate limit is engaged, the effect of section 12 is to disapply the duty to comply with the information request. There is no duty to supply information up to the appropriate limit.

The tribunal did not consider that the margin of difference between the compliance estimate and the appropriate limit is a relevant consideration in these circumstances.

In October 2010 the information commissioner published a list of organisations that are being monitored because it appears they are not meeting the requirement to respond to freedom of information requests on time. They have either:It is interesting to note that out of 33 organisations on the list more than 55% are local authorities. The commissioner will monitor the authorities for three months, but may take action during this timeframe if an authority’s standard of compliance is revealed to be particularly poor, or if it is unwilling to make the improvements necessary.

  • been the subject of six or more complaints of delay in the last six months;
  • exceeded the time limit by a significant margin on at least one occasion; or
  • appear to respond in time to fewer than 85% of requests.

The list will be updated quarterly and published on the commissioner’s monitoring compliance webpage.

Ibrahim Hasan is a director of Act Now Training Ltd