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Changes to a public authority’s obligations under the Freedom of Information Act 2000
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Changes to a public authority’s obligations under the Freedom of Information Act 2000

The recent case of Innes v Information Commissioner [2014] EWCA Civ 1086 (CA (Civ Div)) has resulted in a revised interpretation of the Freedom of Information Act 2000 (Act), now allowing applications to request data in a specific format.

In practice, this means that provided an applicant's request under the Act is reasonably practicable, a request to be supplied with information in a specific software format (ie, Word or Excel) should be complied with.

At the time of writing, the Information Commissioner's Office (ICO) Guidance on Freedom of Information (Guidance) states that under section 11(1)(a) of the Act, an applicant may request for information in a certain form, which the ICO had interpreted to mean electronic, audio tape etc.  The Guidance expressly states that a public authority is not obliged to comply with a preference for a particular electronic format or for a particular type of hard copy document (ICO Guidance, Means of Communicating Information, paragraph 15).

Facts of the case

The recent case concerns a request made in 2010 to Buckinghamshire County Council for information concerning the operation of the 11-plus exam. The applicant was informed the information was held in a database table, and was provided with screenshots showing interfaces with the database, each annotated with an explanation of what the screen showed. The applicant subsequently requested that the information was provided in Excel format. The local authority responded by saying it had provided the applicant with all the information about the headers and offered to explain anything the applicant may not understand and would not be providing the information through Excel.

The applicant complained to the commissioner that the local authority had failed to comply with its duty under the section 11(1) of the Act to give effect to his preference for communication of the information "in permanent form or in another form". The applicant argued this should be interpreted to include a specific software format. The Commissioner rejected the applicant's complaint, and the case was taken all the way to the Court of Appeal.

Findings of the Court of Appeal

The Court of Appeal found in the applicant's favour, highlighting that the purpose of the Act was to allow the public access to information, at least in part, so that they could make use of that information. A construction of the Act which made it easier for them to do so effectively was therefore preferred. The Court of Appeal allowed the appeal, stating that 'form' includes a specific software format. Buckinghamshire County Council was ordered to provide the information requested by the applicant in Excel format.

Practical implications

We understand that many public authorities prefer to provide information in an 'unusable' format (ie, PDF), as this not only allows certain confidential information to be redacted, but also prevents a potential applicant amending the data or extracting the hidden metadata. As a result of Innes, this may no longer be possible if the applicant specifically asks for information to be presented using a specific software (ie, Word or Excel).

Some protection is afforded to public authorities by virtue of the fact that the Act states they only have to comply with a request if reasonably practicable. Therefore, public authorities do not have an obligation to transfer the information into another form (ie, if the information is currently held in a word document, to put it into a spreadsheet).

As a result of Innes, it will now be easier for the public to access information, as well as to manipulate it for further use. This is not envisaged in the current Guidance, and we expect the ICO to amend the Guidance in light of the above judgment. Innes is also likely to result in many public authorities having to amend their in-house procedures for dealing with Freedom of Information requests in order to avoid unintentionally breaching the law.

We advise our clients on how to deal with Freedom of Information requests to ensure they are up to date on the most recent developments, and also that their in-house procedures and guidelines avoid the risk of unintentional breaches of the current law.

For more information, please contact Helen Randall.