FOI Exemptions – Section 12 – Should I appeal this cost refusal?

Figures out yesterday (May 1, 2019) show that 55% of Freedom of Information requests refused by central government bodies in 2018 were rejected under Section 12, or cost limits.

Given that if you send FOI requests, you’re going to run into a time limit refusal before long, when is it a good idea to ask for an internal review? And what is the best way to go about trying to get the refusal overturned?

Section 12 of the FOI Act allows public bodies to refuse to comply with a request for information where the cost of compliance is estimated to exceed a set limit.

That limit is based on a flat rate of £25 per person per hour for finding (or not), retrieving and extracting the information.

For central government departments, legislative bodies (House of Commons, House of Lords and the devolved administrations) and the armed forces, the limit is £600 worth of work, or 24 hours.

For all other public bodies covered by the act, it’s £450, or 18 hours.

Public bodies can include other costs that might take them over this limit, such as outside storage retrieval costs, but it’s rare for them to incur those (as the information requested is usually held somewhere in their own records).

Should I ask for an internal review?

The main question here is does the refusal sound reasonable? Has the public body explained why, with at least some detail, it will take longer than the time limit?

A sentence just saying the request will exceed the time or cost limit is not going to cut it here.

Any estimate needs to be specific to the request and what would be needed to answer it, not a general view that searching for stuff takes time. It needs to include a description of the type of work that would need to be undertaken.

Possible examples that may be credible can include estimates of the number of individual files that need to be examined to find the information with the estimate of how long it will take on average per file, possibly based on initial work on or sampling of a few files. Explanations of how the records management system works and its limitations are also useful (e.g. everything is on paper and the FOI officer would have to check with every member of staff in the department to work out who has which reports (actual response to a request for food hygiene reports from a council)).

These explanations may or may not sound sensible – there are 848 reports to go through and identifying all the information requested in them will take an average of four minutes per report may be reasonable grounds for applying a Section 12 exemption, it will take longer than 18 hours to go through the reports individually when there are just 15 of them may be less so (again, actual example).

Some times a useful indicator that consideration has been given to how long it will take to answer the request is advice on how you could refine your request and re-submit it to get some of the information (FOI officers have a duty under Section 16 of the Act to advise and assist, this is one of the places this can come in).

For example, the most recent years covered by your request are held in electronic form, and providing that is fairly straightforward, the older stuff is in paper format (somewhere in the chaotically filed basement, but no one is really sure where).

If the public body has suggested ways to refine the request, this may be the point you take them up on those suggestions. On occasions, having detailed the extraordinary (and lengthy) lengths the officer would need to go to to get the information asked for, the answer on how to refine the request is ‘not a hope in hell’ – you may feel they are being unduly negative about your chances.

If the public body has provided details about why the request will take too long to answer but said its because it will take to long consider how exemptions apply or to redact information covered by those exemptions, then it is wrong as time spent on these things doesn’t count towards the limit (the public body may then apply Section 14 – vexatious, but that’s another issue).

Deciding on whether to ask for an internal review on a Section 12 refusal is often a judgement call, particularly if the public body hasn’t made an obvious mistake in how it has calculated the time needed – if you’re not really buying the explanation, it’s worth asking for it to be reviewed.

What you can say in your internal review?

Firstly, say you’re asking for an internal review (should be obvious, often isn’t).

Next, you can set out the basis of your argument against the exemption:

The Information Tribunal in the case of Randall v Information Commissioner and Medicines and Healthcare Products Regulatory Agency (EA/2006/0004, 30 October 2007) said that a reasonable estimate is one that is “….sensible, realistic and supported by cogent evidence.

Paragraph 22,

You can then point out how far the current refusal is from that definition of a reasonable estimate. How strong you want to make that will depend on how vague the public body has been in claiming the request will take too long.

If the public body has offered no evidence, say that. If some kind of estimate of time has been given, you could argue why it doesn’t sound very realistic. For example, if you’ve asked for one limited piece of information per case, and the public body is claiming it will take 10/20/30 minutes per file to read through all of the information to find it, question why they can’t CTRL&F to the single piece of information a bit quicker? Or if they say it will take more than the time limit to find the information but the number of relevant files identified suggests that would mean more than an hour per file. Essentially, you want the public body to check its assessment of the average time needed in the calculation is actually how long it will take on average (possibly with a sampling exercise).

If you can think of any, it may then be useful to offer any alternative reasons why this is information the public body should be able to supply within the time limit. Possible examples could include:

  • Your own or other people’s FOI requests (from the disclosure) log that show previous requests for similar (or identical but for different years) information have been answered in the past.
  • Other published information – such as board reports, answers to Common’s questions, etc. that show similar information is held and available.
  • Official statistics that are likely to need a similar type of search to generate on a regular basis as the information you are asking for, suggesting that such a thing is at least possible
  • Any knowledge of the type of records management system used and/or potentially useful search methods.

If the public body is trying to claim it will go over the cost limit due to time needed for redaction, you can include:

Also, the staff time taken, or likely to be taken, in removing any exempt information in order to leave the information that is to be disclosed, often referred to as ‘redaction’, cannot be included as part of the costs of extracting the requested information.

This approach has been confirmed by the Information Tribunal in the case of The Chief Constable of South Yorkshire Police v the Information Commissioner (EA/2009/0029, 14 December 2009) and also by the High Court on appeal ([2011] EWHC44 (Admin)).

Paragraph 16 & 17,

Finally, did you get any advice or assistance on how to refine your request (even if it was don’t bother)? If not, point out that the public body appears to have not met its duty under Section 16 to provide advice and assistance with regard to this request. You may also chose to argue that the failure to give an idea of what information could be provided within the limit suggests that the public body hasn’t fully considered the type of work that would need to be undertaken to answer the request, meaning its estimate may not be reasonable.

Note: Yes, this is a blog post, yes, it’s been a while. But I’m hoping to work on a series of FOI related blog posts looking at ways of getting the information you’re interested in using the Act.

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