People can demand access to information held by public
authorities under the Freedom of Information (FOI) Act. While
authorities can refuse to release information covered by exemptions
to the FOI Act they must publish the rest of the information they
hold.
If the cost of finding, collating and releasing the information
is too high, though, they can refuse. This is calculated by using a
fixed cost of £25 per hour for administrative activity and setting
a cap. For the South Yorkshire Police, which was the public
authority involved, the cap is £450.
A request was made for data on the recovery of illegal firearms
by the South Yorkshire Police (SYP). It said that it would take it
longer than was available within the cost limit to read and redact
the two documents which contained information covered by the
request.
The Information Commissioner told SYP that it could not count
the hours spent redacting documents under the cost-capping
mechanism. SYP appealed the ruling to the Information Tribunal,
which agreed with the Commissioner.
"Under section 12 of FOI Act, a public authority is not required
to comply with a request for information if it estimates that the
cost of compliance would exceed the appropriate limit set by the
Fees Regulation," said the Information Tribunal's ruling. "If the
Appellant estimates that complying with the request would exceed 18
hours (18 x 25 = £450), it is not obliged to comply."
"The only issue in this appeal is whether, in estimating the
costs of complying with a request for information under section 12,
a public authority can take into account the time costs of
redacting information which is exempt under FOI Act," it said.
The Fees Regulation says that the only activities whose costs
can be considered in relation to the cap are "(a) determining
whether it holds the information, (b) locating the information, or
a document which may contain the information, (c) retrieving the
information, or a document which may contain the information, and
(d) extracting the information from a document containing it".
The Tribunal said that when the Regulations dealt with
identifying the information relevant to the request this could also
cover identifying information which should be withheld. The
Tribunal disagreed.
"[SYP says] that the time cost of redactions comes within the
scope of regulation 4(3)(d) which covers 'extracting the
information from a document containing it," said the ruling. "In
our view, it is clear that what regulation [that phrase] is
concerned with is the process of differentiating the requested
information from other information which has not been requested
where a document contains both."
"The task of differentiating exempt information from the rest of
the information requested is logically the next stage (whether or
not for practical purposes the two tasks may sometimes be carried
out simultaneously), and it is not what regulation [that phrase] is
concerned with," it said.
The Tribunal said that the 'information' referred to in the
Regulation is the information requested by the member of the
public, not the information that the organisation wants to keep
secret. Processing the information the organisation wants to keep
secret is not, then, covered by the Regulation, it said.
"If [the Regulation] was intended to include any and all costs
associated with complying with a request, there would have been no
need to specify, as regulation 4(3) clearly does, what costs can be
included - and by implication, what costs cannot be included," said
the ruling. "We find a public authority cannot include the time
cost of redaction when estimating its costs."
FOI law expert Louise Townsend or Pinsent Masons, the law firm
behind OUT-LAW.COM, said that though the ruling is in line with
previous decisions, it is the first time that an entire case has
depended on the issue.
"This is in line with the Commissioner's guidance and has been
the opinion of the Tribunal before, but in the past the case has
been decided on other issues," she said. "This is the first time
that it has been the sole issue at stake and it gives extra clarity
on the issue."
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