Section 1 of the Freedom of Information 2000 (FOI) contains the general right of access to information held by public authorities. But what exactly is “information”? Section 84 defines information as “information recorded in any form.” This includes information held on paper, computer, video, audiotapes as well as that contained in manuscript notes. FOI does not give access to information that is known to the public authority but is not available in some recorded form (see Ingle v Information Commissioner (EA/2007/0023) ).
Mere marks made on documents are also information according to an Information Tribunal decision from 2009 (O Connell v the Information Commissioner and Crown Prosecution Service (EA/2009/0010)). Here the Tribunal considered access to manuscript notes made by a defence barrister, during a criminal trial, on his client’s typed police interview record. The Information Commissioner’s view was that some of the notes, which consisted of asterisks and underlining of words on a document, were not information for the purposes of FOI.
The Tribunal rejected this submission. In its view, however tenuous and potentially misleading the material sought may be, it still constituted information; even if it was only information to the effect that certain marks had been made on certain sheets of paper held by the public authority. The Tribunal did however rule that the requested information was sensitive personal data, disclosure of which would breach the Data Protection Principles. Consequently it was exempt under section 40(2) being third party personal data.
It is an oft-repeated phrase that FOI provides a right of access to information rather than documents. However, a request for a copy of a document will generally be a valid request for all of the information contained within that document (including visual format, design, layout etc). In considering whether the public authority has complied with the request, the question is whether all of the information recorded in the document has been provided. It will not be sufficient to rephrase the document or provide an outline or summary of its contents unless the applicant has specifically expressed a preference for a digest or summary under section 11(1)(c).
In April 2013 the First Tier Tribunal (Information Rights), ruled that images of MPs’ expense claim receipts was information to which the FOI applied (IPSA v Information Commissioner (EA/2012/0242)). The background to the request was that, following the MPs’ expenses scandal, the then newly-formed Independent Parliamentary Standards Authority (IPSA), decided that it would not routinely publish images of the receipts submitted to IPSA by MPs in support of their expenses claims. Only text transcribed from the submitted receipts would be published.
A journalist made an FOI request for the actual receipts submitted by a number of MPs. The question arose as to whether images of those receipts held by IPSA contained “information” within the meaning of section 1 of FOI, which was not captured by the transcription process favoured by IPSA. The Tribunal concluded that the definition of information (in this case) included logos, letterheads, handwriting, manuscript comments, and even the layout and style of the requested documents. These were not disclosed to the requestor as a result of providing a transcription, rather than a copy, of the relevant receipts.
The Upper Tribunal’s appeal decision in this case, has now put the matter beyond doubt. In Independent Parliamentary Standards Authority v IC & Leapman [2014] UKUT 33 (AAC) Judge Williams dismissed the appeal by IPSA. At Paragraph 22 of the judgement he said:
“It is to me also trite to note that the wording on a typical receipt or invoice is only part of what a recipient sees when looking at it. Typically there will be verbal and numerical content to be read and understood, but there will also be visual content to be seen, rather than read, but which may also require to be understood for the recipient to have appreciated the whole of the experience, if I may term it that, communicated by the receipt or invoice.”
In the judge’s view information is more than just the words and figures on a piece of paper. Sometimes the nature of the request will mean that the only way to convey all the information on a document is to disclose the original or at least a copy. He gave the example of Land Registry plans, drawings and photographic evidence of a particular building.
In coming to his decision the judge took note of the Scottish Court of Session decision in Glasgow CC v SIC [2009] CSIH 73 under the Freedom of Information (Scotland) Act 2002 (FOISA). As a general point of principle, the Commissioner and the Tribunal is not bound by Court of Session decisions on FOISA, although they may be considered persuasive where the terms of FOISA mirror the terms of FOI. In the Scottish case the applicant specifically wanted the public authority to provide copies of the documents, although he acknowledged that the same information was available elsewhere. The Court confirmed that FOISA entitles requesters to the information within a document, rather than a copy of the document itself. To the extent that this request was specifically for copies of the documents over and above the information they contained, it was invalid. The Court rejected an argument that the copy documents were “information” distinct from the information contained within them.
The Court stated at paragraph 45 of the judgment:
“Where the request does not describe the information requested… but refers to a document which may contain the relevant information, it may nonetheless be reasonably clear in the circumstances that it is the information recorded in the document that is relevant.”
However paragraph 48 should be noted:
“The difference between the original and a copy… does not consist in any difference between the information recorded in each document: that information, if the copy is true and accurate, will be identical.” (my emphasis)
In the IPSA case, the judge ruled that transcriptions of the requested receipts would not be “true and accurate”, as they would not contain all the same information as on the originals e.g. logos, style, layout etc.
If you want to know more on the Scottish case, read the briefing note published by the Scottish Information Commissioner. The basic principles (and these apply equally to FOI requests) are:
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The Freedom of Information (Scotland) Act 2002 (FOISA) provides a right of access to information and not a right of access to copies of specific documents.
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Authorities should not automatically refuse requests for copies of documents, as long as it is reasonably clear from the request that it is the information recorded in the document that the applicant wants.
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Requesting a document (e.g. a report, a minute or a contract) is a commonplace way to describe information. Where it is reasonably clear that a request is for the information contained in a document, the authority should respond to the request as one properly made under FOISA.
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If a request is for a document, but it is not reasonably clear what information is being requested, the authority should contact the applicant to seek clarification.
These are interesting decisions especially for those public authorities who often insist, when refusing to supply actual documents (such as minutes of meetings) that FOI is about access to information not documents. Sometimes the requestor is interested in the document, which contains the requested information, as it will give a further insight into its background and the thoughts/observations of the producers/subjects of the document.
Finally to quote one of our FOI trainers (Philip Bradshaw):
“Much will also in practice depend on the wording of the request. Contrast “How much did you spend on pencils?” with “Can I have a copy of your pencil invoices”. You can clearly provide in permanent form all the recorded information within scope of the first request without copies, but not perhaps for the second.”
Ibrahim Hasan will be discussing this and other recent FOI decisions in the FOI Update workshops which are delivered in online sessions as well as face to face.
