PLC Public Sector reports:
The First-tier Tribunal’s decision in Cardiff Council v Information Commissioner is a timely reminder of the nature and quality of evidence or information that a public authority should provide if it is seeking to rely on the exemption set out in section 12 of the Freedom of Information Act 2000 (FOIA), where the cost of complying exceeds the appropriate prescribed limit specified in Schedule 1 to the Fees Regulations. Cardiff Council had received a request from the requester (Christopher Hastings) for details of all its communications with the BBC and utility companies in connection with the TV programme, Dr Who. It refused to disclose the information, relying on the section 12 exemption. In a subsequent challenge by the complainant to the council’s decision to withhold the information, the Information Commissioner held that section 12(1) of FOIA was not engaged and therefore the information should be disclosed.
The council appealed the decision to the First-tier Tribunal. The sole question for the tribunal was whether the council had proved on the balance of probabilities that the work involved in responding to the application for information would cost more than £450 (which equates to 18 hours’ work). In addressing this question, the Information Commissioner submitted that the tribunal should have regard to the decision in Roberts v Information Commissioner, which confirmed that a public authority is only required to provide an estimate of costs, not a precise calculation. However, that estimate must be:
- A reasonable one.
- Based on the costs that a public authority reasonably expects to incur in determining whether it holds the information, locating and retrieving the information and extracting the information (regulation 4(3)).
- As specified in Randall v Information Commissioner, sensible, realistic and supported by cogent evidence.
- More than a guess or an arbitrarily selected figure, which means that a public authority must undertake some form of investigation, which is then followed by an exercise of assessment and calculation of how many hours the relevant staff members are likely to take to extract the information.
Although Roberts was not binding on the tribunal, it accepted and adopted the comments made in the case as a sensible approach where a public authority was seeking to rely on the section 12 exemption. Unfortunately, the tribunal was “bewildered” by the nature and quality of the evidence that the council had provided in support of its decision not to disclose the information.
Although the information officer (Mr B), who had dealt with the internal review and correspondence with the Information Commissioner, had made some effort to analyse and estimate the work that may be required to respond to the request for information, the Information Commissioner concluded that the necessary work could be undertaken in less than 18 hours. However, by the time the tribunal considered the council’s appeal, Mr B had left the council’s employment and another information officer (Mr P) confirmed that the original analysis contained a number of errors. Therefore, the tribunal found itself in the position of having to deal with contradictory evidence from the council. Although the council’s approach was that the Tribunal should disregard Mr B’s early evidence and replace it with Mr P’s evidence, the tribunal considered that the later evidence was:
- Not based on any analysis of the work likely to be required to deal with the enquiry, either as a total or broken down into the four heads specified in regulation 4(3).
- Little more than an assertion that:
- the work required would “obviously” take more than 18 hours (based on the time that it had taken him and his colleagues to deal with an earlier enquiry by the complainant, which did not include any analysis or breakdown); and
- Mr P would have to contact 1,400 of the principal officers working for the council, although he had not estimated the work involved in doing so.
Given that the approach adopted by the council was exactly the approach that had been criticised in Roberts, the tribunal considered that the council had failed to:
- Adduce cogent evidence to support its assertion.
- Demonstrate that it had undertaken an investigation process followed by an exercise of assessment and calculation.
- Prove on the balance of probabilities that responding to the complainant’s enquiry involved more than 18 hours.
On this basis, the tribunal unanimously decided that the Information Commissioner was correct to conclude that section 12 of FOIA was not engaged and, therefore, dismissed the council’s appeal.
Therefore, when relying on the section 12 exemption, public authorities must carefully review their procedures and ensure that information officers:
- Conduct a reasonable analysis of the work that is likely to be involved in complying with a request.
- Make an informed and intelligent assessment of how many hours’ work it will take for relevant officers to extract the information.
- Can prove on the balance of probabilities that the work involved in providing the requested information exceeds the prescribed limit.
Although it did not form part of the judgment, the tribunal criticised the council for its failure to have an appropriate case or record management system. This is essential, particularly where a public authority receives a considerable number of information requests. For more information on the process for logging and dealing with requests, see Checklist: Responding to FOI requests.