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Redaction time cannot contribute to FOI cost capping, rules Tribunal

Organisations cannot count the hours they spend blanking out parts of documents when calculating whether a freedom of information request is too time consuming to be met, the Information Tribunal has ruled.18 Dec 2009

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."