FOI Exemptions – Section 21 – but the information I want isn’t available elsewhere, is it time to appeal?

If the Cabinet Office statistics for central government FOI-handling show cost is the most common reason you’ll find your request being refused, then coming in as the third most commonly used Freedom of Information Act exemption is Section 21, or information reasonably accessible to the applicant by other means.

(The type of exemptions you are more likely to run into will vary depending on what type of public body you are asking – Section 35 and Section 27 are much less likely to be used by councils, but others are popular everywhere).

The purpose of Section 21 is to ensure that there is no right of access to information via FOI Act if it is available to the applicant by another route.

As a requester, your job is to avoid this one by not asking for information you could have found by searching for it yourself (make sure you do that before you put in the request).

However, on occasions a search doesn’t turn up what you need – where websites are poorly designed and information hard to find. When this happens and a request is made, having someone with better knowledge point you in the right direction is the best option.

It’s important to remember here that reasonably accessible doesn’t just mean ‘it was on the website the whole time, you just missed it’, it can also cover information you have to pay for, information you have to come and look at in person, and information you have to make an application for to a different body.

Should I ask for an internal review?

Did the response tell you where you can get the answers you were seeking in your request? Anything less than a full-body yes, means it’s time to start writing that internal review request.

This includes refusals where you have been sent links to information that may sort of answer your request (either because it answers some of the request or it relates to the same general topic) – common examples of this include links to official statistics when you asked for more detail or links to other similar requests in the disclosure log (bonus points if the request is one of your own previous requests for information relating to an earlier year).

If the refusal claims that the information is available elsewhere but offers no help in finding it (other than a vague direction to check the disclosure log or the public body’s website), then it should be appealed.

ICO guidance is pretty straightforward on this one, public bodies need to set out clearly where the information that answers your exact request, either in full or partially, is available, or they need to answer the request (or the bits of it not available elsewhere) in a normal FOI fashion (either by releasing the information or refusing using exemptions).

Sometimes the answer will be, ‘here is some of the information asked for but the rest isn’t held or would exceed costs’ – these may require appealing those exemptions instead.

If the answer is, ‘we can answer it, but it’s going to cost you’? You need to check whether it was clear before you asked that this information came with a charge. This may mean checking publication schemes for information about chargeable documents or cost of bespoke analysis, anything that shows how the information you want is covered.

As long as the fact charges apply was clear, the actual cost that could be charged is pretty much limitless. Just because you can’t afford it, doesn’t mean it’s not reasonably accessible.

In Davis v Information Commissioner and the Health and Social Care Information Centre, a request was made to the HSCIC (now NHS Digital) for information on cases of neonatal withdrawal and obesity treatments. HSCIC said it charged for bespoke analysis of the Hospital Episode Statistics, and the cost would be £1,550.

The tribunal took the view (paragraphs 25 and 26) that the point of HSCIC having a clear publication scheme approved by the ICO (as the model and any bespoke schemes need to be) setting out what information and analysis it charged for was so that the position was set out in advance rather than have the public body face a potential challenge over each individual request.

The tribunal took the view that it is the public body’s job to review publication schemes are reasonable, and the ICO’s job is to ensure that publication schemes it approves are reasonable (it can revoke those that no longer are). Therefore, there may still be grounds to challenge manifestly unreasonable charges that look more like they’re aimed at deterring requests rather than covering the costs of analysis.

Where charging for information is unlikely to be reasonable, is if you’ve asked for a limited amount of information (e.g. a few figures for particular types of spending last year), and the public body says you can access it if you spend a lot of money to get far more information than you need (e.g. purchasing the entire annual report in hard copy only). The ICO guidance suggests its unlikely to accept these types of arguments:

There will be some cases where the fact that there is a charge for information may mean that it is not reasonably accessible to the applicant. For instance, a public authority may be asked for information contained in its annual report. It is unlikely to be reasonable to require the applicant to purchase a copy of the report if the request is only for a small amount of the information contained in it.

Paragraph 31,

Broadly, if the publication scheme doesn’t say the requested information is chargeable, appeal on those grounds. If the public body wants you to buy more information than you need to get what you requested, then it’s worth appealing using the guidance above. If you were told the information was chargeable, and it is just charging you for the information you want (no matter how much), you probably don’t have grounds.

Similarly, if the answer is ‘you can have the information but you have to come to our offices to view it’, this is something that must have been set out in the public body’s publication scheme.

The model publication scheme also makes it clear this should be the case only in exceptional circumstances – fragile documents where no alternative route but viewing in person exists is probably one of the few – so you should be unlikely to run into this particular situation.

What you can say in your internal review?

If the public body claims you can access the information through other means but they’ve sent you to something irrelevant, you can start by pointing out that public bodies can only rely on Section 21, if they know the information requested is publicly available:

A public authority cannot claim the section 21 exemption on the basis that it probably holds the information or information of the same type. The authority must know whether it holds the information as specified in the request. 

Paragraph 9,

If the public body sent you links to some but not all the information asked for, you could point out that in the case of the London Borough of Bexley and Colin P England v Information Commissioner (EA/2006/0060 & 0066, 10 May 2007), the Information Tribunal considered that most of the requested information being publicly available didn’t mean it was reasonably accessible, saying:

We do not interpret the section as stating that a public authority has no obligation to provide information where a reasonable amount of that information is available elsewhere.

Paragraph 113,

This tribunal decision makes it clear, Section 21 can only apply to the requested information that is available by other means. Any requested information that isn’t available elsewhere needs to be supplied (or exempted).

At this point, it may be helpful to explain how the public body’s response doesn’t answer or doesn’t fully answer the request and explain what information would still need to be supplied.

If the public body’s refusal isn’t much help because they’ve just gestured vaguely at their website as the font of all knowledge, you could say that in Christopher Ames v Information Commissioner and the Cabinet Office (EA/2007/0110, 24 April 2008), the tribunal said:

We are not at all sure that, in a case where a public authority is asked for a very specific piece of information which (ex hypothesi) it holds, it would be legitimate for the public authority to say to the applicant that the information is somewhere to be found on a large website like that of the Hutton Inquiry, even if the applicant is someone as well informed as Mr Ames no doubt is. It may be different if the public authority were to provide a link or some other direct reference to where the requested information can actually be found. (paragraph 19)

Paragraph 19,

Essentially, if the public body wants to continue to rely on Section 21, it needs to send a clear explanation (with good signposting to the information) as to why that information answers your request in full (or possibly not rely on Section 21 at all).

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