Section 1 of the Freedom of Information Act 2000 (FoI) contains the general right of access to information held by public authorities. But what exactly is ‘information’? A recent judgment by the Upper Tribunal in a case concerning MPs’ expenses sheds more light on this difficult issue.

Section 84 defines information as ‘information recorded in any form’. This includes information held on paper, computer, video, audiotapes and contained in manuscript notes. A 2007 Information Tribunal decision (Ingle v Information Commissioner (EA/2007/0023)) makes it clear that FoI does not give access to information known to the public authority but not available in some recorded form.

Information under FoI does not just include the written word. Marks made on documents are also included within the definition according to an Information Tribunal decision from 2009 (O’Connell v the IC and Crown Prosecution Service (EA/2009/0010)). Here the tribunal considered access to manuscript notes made by a defence barrister during a criminal trial on his client’s typed police interview record.

The Information Commissioner’s (IC) view was that some of the notes, which consisted of asterisks and underlining of words on a document, were not information for the purposes of FoI.

The tribunal rejected this submission. In its view, however tenuous and potentially misleading the material sought may be, it still constituted information; even if it was only information to the effect that certain marks had been made on certain sheets of paper held by the public authority. The tribunal did, however, rule that the requested information was sensitive personal data, disclosure of which would breach the Data Protection Principles. Consequently it was exempt under section 40(2), being third-party personal data.

FoI practitioners often repeat the mantra that FoI provides a right of access to information rather than documents. Strictly speaking, this is not true. A request for a copy of a document will generally be a valid request for all of the information contained within that document (including visual format, design, layout and so on).

In considering whether the public authority has complied with the request, the IC will consider whether all of the information recorded in the document has been provided. It will not be sufficient to rephrase the document or provide an outline or summary of its contents unless the applicant has specifically expressed a preference for a digest or summary under section 11(1)(c).

In IPSA v IC (EA/2012/0242), the First Tier Tribunal (Information Rights) ruled that images of MPs’ expense claims receipts was information to which the FoI applied. The background to the request was that, following the MPs’ expenses scandal, the then newly formed Independent Parliamentary Standards Authority (IPSA) decided that it would not routinely publish images of the receipts submitted to IPSA by MPs in support of expenses claims.

Only text transcribed from the submitted receipts would be published. A journalist made an FoI request for the actual receipts submitted by a number of MPs. The question arose as to whether images of those receipts held by IPSA contained ‘information’ within the meaning of section 1 of FoI, which was not captured by the transcription process used by IPSA.

The tribunal concluded that the definition of information (in this case) included logos, letterheads, handwriting, manuscript comments, and even the layout and style of the requested documents. These were not disclosed to the requester as a result of providing a transcript, rather than a copy, of the relevant receipts.

Judge Williams in the Upper Tribunal (Independent Parliamentary Standards Authority v IC and Leapman [2014] UKUT 33 (AAC)) dismissed the appeal by IPSA. At paragraph 22 of the judgment, he said: ‘It is to me also trite to note that the wording on a typical receipt or invoice is only part of what a recipient sees when looking at it.

‘Typically, there will be verbal and numerical content to be read and understood, but there will also be visual content to be seen, rather than read, but which may also require to be understood for the recipient to have appreciated the whole of the experience, if I may term it that, communicated by the receipt or invoice.’

In the judge’s view, information is more than just words and figures on a piece of paper. Sometimes the nature of the request will mean that the only way to convey all the information on a document is to disclose the original or at least a copy. He gave the example of Land Registry plans, drawings and photographic evidence of a particular building.

In coming to his decision, the judge noted the Scottish Court of Session decision in Glasgow CC v SIC [2009] CSIH 73 under the Freedom of Information (Scotland) Act 2002 (FoISA). As a general point of principle, the commissioner and the tribunal is not bound by Court of Session decisions on FoISA, although they may be considered persuasive where the terms of FoISA mirror the terms of FoI.

In the Scottish case the applicant specifically wanted the public authority to provide copies of the documents, although he acknowledged that the same information was available elsewhere. The court confirmed that FoISA entitles requesters to the information within a document, rather than a copy of the document itself.

To the extent that this request was specifically for copies of the documents over and above the information they contained, it was invalid. The court rejected an argument that the copy documents were ‘information’ distinct from the information contained within them.

The court stated at paragraph 45 of the judgment: ‘Where the request does not describe the information requested… but refers to a document which may contain the relevant information, it may nonetheless be reasonably clear in the circumstances that it is the information recorded in the document that is relevant.’

However, paragraph 48 should be noted: ‘The difference between the original and a copy… does not consist in any difference between the information recorded in each document: that information, if the copy is true and accurate, will be identical’ [author’s emphasis].

In the IPSA case, the judge ruled that transcripts of the requested receipts would not be ‘true and accurate’, as they would not contain all the same information as on the originals, for example logos, style, layout and so on.

More details on the Scottish case can be found on the Scottish IC’s briefing note published on his website. The basic principles (and these apply equally to FoI requests in the rest of the UK) are:

  • FoISA provides a right of access to information and not a right of access to copies of specific documents.
  • Authorities should not automatically refuse requests for copies of documents, as long as it is reasonably clear from the request that it is the information recorded in the document that the applicant wants.
  • Requesting a document is a commonplace way to describe information. Where it is reasonably clear that a request is for the information contained in a document, the authority should respond to the request as one properly made under FoISA.
  • If a request is made for a document, but it is not reasonably clear what information is being requested, the authority should contact the applicant to seek clarification.

These are interesting decisions, especially for public authorities which often insist, when refusing to supply copy documents (such as minutes of meetings) that FoI is about access to information not documents. Sometimes the requester is interested in the document, which contains the requested information, as it will give a further insight into its background, and the thoughts and observations of the producers or subjects of the document.

In practice, much will depend on the wording of the FoI request. Contrast ‘how much did you spend on pencils?’ with ‘can I have a copy of your pencil invoices?’. A public authority can clearly provide all the recorded information within the scope of the first request without actually supplying copy invoices, but not perhaps for the second.

Ibrahim Hasan is a solicitor and director of Act Now Training

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