Line to take - LTT150 - "Meta-requests" (requests about requests)
- FOI/EIR: FOI, EIR
- Section/Regulation: s1, s36, s40, reg 12(4)(d)
- Issue: "Meta-requests" (requests about requests)
- Source: Information Tribunal
- Details: Home Office and MoJ v ICO (20 November 2008); High Court CO/12241/2008 (6 July 2009)
- Related Lines to Take: n/a
- Related Documents: EA/2008/0062, CO/12241/2008
- Contact: GF
- Date: 29/07/2009
- Policy Reference: LTT150
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
Meta-requests — requests about requests — are normal requests and should be considered in the same way as any other request under FOIA.
NB: We envisage that in many circumstances, meta-requests will encompass elements of personal data of the applicant. In such circumstances, the personal data elements of the request should be considered in the normal way under s40. Once the personal data is isolated, the remainder of the requested information can be dealt with as normal under FOIA.
In the case of Home Office and Ministry of Justice (MoJ) v ICO, the applicant requested disclosure of any documents relating to internal communication within the Government and Government departments relating to the use of FOIA by the applicant or the applicant’s company, John Connor Press Associates Ltd. The applicant clarified that he did not want information already received in answers or correspondence but internal communication about his requests or the way they should be handled. The public authority withheld the information under 36(2)(b)(i) and (ii) and 36(2)(c). The Commissioner was satisfied that the exemptions were engaged but that the public interest weighed in favour of disclosure. The PA appealed the decision and stated that the request in this case was a ‘meta-request’ by which they meant that the request was for information about another FOI request (paragraph 7).
The Tribunal agreed with the Commissioner’s view that meta-requests do not differ in status or importance from any other type of request. There is no legal basis for concluding that public authorities can refuse a meta-request under FOIA simply because it is a meta-request; there is no provision in FOIA which permits requests to be refused on the basis they constitute requests for the disclosure of information as to how a public authority internally handles a particular information request. They should therefore be considered in the same way as any other request. This position was emphasised by the High Court in the subsequent appeal (CO/12241/2008, paragraph 4).
Meta-requests and the public interest test in relation to s36
In this case, the public authority identified factors in favour of maintaining the exemption at s36. The majority of the arguments closely considered the general effect of meta-requests as prejudicial to the effective conduct of public affairs rather than the actual circumstances of the request under consideration (paragraphs 19-25). They can be summarised as follows:
- 1. There would a chilling effect on the future conduct of those responsible for handling FOI requests;
- 2. There was a resources issue;
- 3. Meta-requests circumvented other processes provided for under FOIA;
- 4. Meta-requests serve irresponsible/private interests;
- 5. Meta-requests provide backdoor access to information previously withheld
- 6. The information in this specific case contains little or no material of value;
1. The Tribunal considered these arguments in turn at paragraphs 45-60. Regarding the chilling effect, the Tribunal considered existing IT decisions (Guardian and DfES v IC and Evening Standard) which place some scepticism on the risk of such a chilling effect on the future conduct of officials (paragraph 46). Although it was accepted that there could be a chilling effect in particular cases, this argument could not be maintained in this case as much of the evidence was on the basis of dealing with meta-requests generally. The Tribunal recalled the evidence in the reasonable opinion of a qualified person, that ‘much of the information created by a public authority in dealing with a request for information is not actually sensitive’ (emphasis added). In light of the existing IT decisions, little weight was applied to this public interest argument by the Tribunal. This position was corroborated in the High Court appeal.
2. The PA argued that there would be a disproportionate diversion of valuable resources to deal with meta-requests which would have an impact on resources to deal with substantive FOI requests. However, the public authority presented contradictory evidence which said that meta-requests had not stopped them dealing with ‘substantive’ requests for information and additionally, that the information relevant to meta-requests will often be relatively easily available and cannot be ruled out on grounds of cost. The Tribunal did not give a firm view in response to this, but it clear that there is little or no evidence to suggest that meta-requests create a disproportionate diversion of resources and that therefore this is a weak public interest argument.
3. The PA’s argument that meta-requests circumvents established FOI complaints/appeals procedures was accepted as fundamentally misconceived by the Tribunal and viewed as another weak public interest argument in favour of maintaining the exemption. As detailed at paragraph 50, FOIA provides for information to be released in response to requests unless exempt by virtue of the provisions in the Act; there is no exemption for circumvention of FOI processes in the Act.
4. In considering the public interest argument that the information contains little or no material that would serve the public interest, the public authority argued that the information would not inform public debate, drawing upon the case of Foreign Office and ICO v Friends of the Earth, which noted that there is a clear distinction between information that simply adds to the sum of human knowledge and information that actually furthers a clear public interest (paragraph 52). However, this was countered by the argument that there is an important public interest as such information shows the processes are working well or otherwise; this is emphasised by the fact the appellant sought to apply additional late exemptions to the information, which demonstrates that they considered that some of the information in this case has value (paragraph 53).
5. In response to the argument put forward that meta-requests are an irresponsible use of the Act that serves an individual’s private interests, the Tribunal accepted evidence from the Commissioner that irresponsible requests should be dealt with as vexatious under s14 and that the concept of irresponsible use has no place outside of s14. Private interests behind a request should not be taken into account as the Act is motive blind. Therefore little weight was given to this public interest
6. Lastly, the Tribunal attributed little weight to the public interest argument in regard to the ‘backdoor access’ argument. The public authority had argued, in the reasonable opinion of the qualified person that meta-requests could be used as a backdoor method of obtaining information previously withheld — “the public authority would have no choice but to undertake the time consuming task of collating and auditing all the internal information that has been created, to ensure that any reference to the details of previously withheld information is identified”. However, although it was accepted that dealing with meta-requests could be time consuming, the Tribunal found that time spent is of no relevance and has limited weight. The exemption at s12 provides for costs and s14 if it encompasses a repeated request. Furthermore, there was no evidence that meta-requests have been used to gain backdoor evidence in general, or in this case.
The Tribunal noted that the public authority’s approach was to treat meta-requests as a special category of requests; they were clear that there was no basis under FOIA to do that and there is no separate class of request. They concluded that the public interest factors presented by the public authority were at a high generalised level and noted that a narrow approach focusing on how the information in question would impact upon the particular public interest the exemption is designed t0 protect (i.e. the effective conduct of public affairs in this case) should be taken.
The public authority appealed the decision to the High Court, who ultimately upheld the Tribunal’s (and the Commissioner’s) decision that the public interest test in maintaining the exemption was outweighed by the public interest in disclosure (paragraph 38).
Meta-requests and personal data
We recognise that it is likely that meta-requests may include in part the personal data of the applicant. Therefore, s40 should be considered in the first instance and once any personal data is isolated, the remainder of the requested information can be considered as normal under FOIA.