The following paragraphs are intended to be able to be used to help challenge and overcome frequent issues within poor responses to FOI requests.
They are small snippets of what should be larger, more specific, responses that may be able to be provided to public authorities.
Where possible a reference to a request, which may have been provided by the authority, should be included in any correspondence with the officials. This will help it to track the request more accurately and also it may assist you in locating email correspondence relating to the request, which will need to be provided if complaining to the ICO.
For some of these issues it may be worth trying to resolve the matter informally with the information officer, rather than straight away making a complaint to them asking for an internal review.
Every FOI request is different and this should be taken in to account when using any of the following paragraphs. The circumstances of each request should be considered as to whether it is appropriate to complain and whether or not the authority has complied with its legal obligations.
Section 10: Late response
Requests have to be answered within 20 working days. Working days are any days that aren’t weekends, Christmas Day, Good Friday or any bank holidays.
Authorities are told they have to reply within the 20 working days, and at any case they have to reply promptly.
It is also possible to complain to the Information Commissioner about an authority not responding to a request in the time limits set out by the Act. Although it is recommended that you follow up with the authority before directly complaining to the Commissioner.
If an authority does not reply within 20 working days then it is possible to use the following:
Please may you send me a response to the referenced request, as more than 20 working days have passed.
If it is not possible to provide me with a response at this stage, please advise me when a response will be provided.
Section 11: Format of request
Where it is reasonably practical a public authority should give you information in the form that you want it.
This means if you ask for a spreadsheet in ExCel format and it is already held in this format, or would be easy to convert to it, and then the authority should do so. If they do not you can cite the following to ensure they comply with the ruling.
My initial request, referenced above, asked for the information to be provided in the format of [Inset format], in respect of Section 11 of the Act.
In line with the Court of Appeal decision in Innes vs Information Commissioner and Buckinghamshire County Council (2014) GIA/3436/2011, which stated in paragraphs 39 and 40:
“Citizens are given the right of access to public information at least in part so that they can make use of such information. A construction of the Act which makes it easier for them to do so effectively is to be preferred.”
“…it is hard to see any policy objection to a construction which enables an applicant to specify a preferred software…”
In light of this decision, please can you provide me with the information in the format I originally requested, and is stated above.
Section 12: Cost limits
Authorities don’t have to comply with the request if they estimate that it would cost them more than £600 (for central government) or £450 (for other authorities) to respond to it.
It is not obliged to give you a breakdown of how it has reached this estimate but the Information Commissioner says it is good practice to do so.
It may also be part of the authority’s duty to provide advice and assistance. If a breakdown of the cost estimate is not given then the following can be used to ask for one:
Please may you provide me with a breakdown of how the cost estimate was reached for this request.
The Information Commissioner’s guidance for public authorities (Requests where the cost compliance with a request exceeds the appropriate limit, page 11) says:
“…providing a suitable breakdown is likely to be required as part of a public authority’s statutory obligations under section 16 to provide advice and assistance…”
Please include as much detail as is possible when showing how the cost estimate was reached. This will help to inform me whether or not to request and internal review for the information I have requested.
No details of refusal
An authority responding to a FOI request is required to say they are refusing to provide the information, or neither confirm nor deny that the information is held.
In doing this they have specific obligations under the Act to let you know how and why they are refusing the request. This is unless telling you these reasons would give away the information they are withholding.
Under Section 17 of the Freedom of Information Act when refusing a request the authority should provide details of why it has refused the request.
In accordance with the Act please may you provide me with the following:
A refusal that says which exemption is being applied to my request (17)(1)(b) and states why the exemption applies (17)(1)(c).
As Section 16 of the FOI Act says that authorities have to provide advice and assistance to requesters.
This applies to those people who have made requests as well as those who are proposing to make the requests.
If an authority is being unhelpful and difficult in responding to requests then it may be worth sending it the following about their duties under the Act:
In accordance with Section 16 of the FOI Act please may you provide me with advice and assistance as to how I can refine my request so that more information may be able to be disclosed.
As the Ministry of Justice’s Code of Practice says, authorities should help the requester to provide an outline of the different types of information that might fall in to the scope of my request.
Also, the Information Commissioner’s guide on good practice says that an authority’s duty to provide advice and assistance is ‘extensive’ in nature. The Commissioner also says, in the guidance, that the authority should be prepared to help those who have had requests turned down. It is also said that requesters should be helped based on their individual circumstances.
Please may you:
[insert any specific questions to the authority here]
Public interest test (no details)
The public authority, as stated in the Act, must say why it has applied the public interest test and the reasons behind its application.
This can be used where the public interest test has not seen to be conducted or the authority has not provided details of how it conducted the balancing test and the reasons behind why information has not been disclosed.
Under Section 17 of the Freedom of Information Act when refusing a request where a qualified exemption has been applied then details of the public interest test should be provided.
In accordance with the Act please may you provide me with the reasons of “all” the circumstances where maintaining the exemption outweighs the public interest in disclosing information (s.17(3)(b).
The conducting of the public interest test
There is no statutory requirement for a public authority to conduct a public interest test within a specific time period, they can take as long as they like to respond.
However, there is a duty for the authority to tell you when it is conducting a public interest test and when it estimates it may reply. If they do not do this then the following can be used:
Section 17 of the Freedom of Information Act says that when a public authority is intending to reply upon a qualified exemption and balance the public interest test then it should let the requester know, the exemption and why it applies within the initial 20 working day period.
This is also referred to in the Information Commissioner’s Guidance “Refusing a request: writing a refusal notice” at paragraph 46, page 11.
Please may you provide me with a notice saying, in line with the provisions of s.17(2) of the Act, when you estimate the date that you will reach a decision as to whether the public interest test is in favour of disclosure or maintaining the exemption.
Timeliness for a public interest test
While there is no statutory time limit that restricts a public authority to completing a public interest test within a set amount of days the Information Commissioner does offer guidance on this.
If the authority is conducting a public interest test and it has been more than an extra 20 working days, the following can be used.
The Information Commissioner’s guidance for authorities says that a public authority should not take more than an additional 20 working days to consider the public interest (Refusing a request: writing a refusal notice, paragraph 45, page 11).
Are you now at a position where you are able to provide me with a copy of the balancing of the public interest test, in relation to this request?
At the very least please may you provide me with an estimation as to when the public interest test will be completed.
Timeliness for an internal review
Like the public interest test there is no statutory time limit that a public authority has to comply with when it is conducting an internal review of a request.
With this the Commissioner also provides guidelines for authorities on how long an internal review should take.
The Information Commissioner says that an internal review should take no longer than 20 working days in most cases, and in exceptional ones 40 working days (The Guide to Freedom of Information, page 52).
Are you in a position to provide me with the internal review which was being conducted by the authority, in relation to this request?
If you are not at a position to provide the internal review, please may you provide me with a date when it will be completed by?