Line to take - LTT141 - Advice and assistance in relation to s12

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  • FOI/EIR: FOI
  • Section/Regulation: s12, s16
  • Issue: Advice and assistance in relation to s12
  • Source: Information Tribunal
  • Details Brown / National Archives; Roberts/ ICO
  • Related Lines to Take: LTT47, LTT87, LTT88, LTT89
  • Related Documents: EA/2006/0088 (Brown); EA/2008/0050 (Roberts); Awareness Guidance 11, Awareness Guidance 23
  • Contact: GF
  • Date: 13/02/2009
  • Policy Reference: LTT141
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT


Line to take

Where a request is refused on grounds of cost under s12 - although a public authority has an obligation under s16 to provide advice and assistance to enable an applicant to refine his request — if they do not provide this advice and assistance, the costs estimate is not invalidated.

Further Information

Section 12 cost estimates and the duty to provide advice and assistance under s16

The IT in the case of Roberts v the Information Commissioner agreed with the Commissioner’s view that whilst the public authority did not deal with its obligation under s16 to provide advice and assistance that might have enabled the applicant to refine his request, this did not invalidate the s12 refusal. They acknowledged the importance of public authorities discussing the scope of a request with the applicant so that complying with it would not exceed the costs limit (paragraph 20), but nevertheless made the following findings at paragraph 20:

  • There is nothing in the language of s12 itself to suggest that the estimate may be challenged for any reason other than that it falls to comply with the Regulations.
  • Nor does section 16 specify that failure to comply with its requirement should invalidate an estimate. In fact no sanction is mentioned in that section and it is to be inferred that the only available sanctions are those set out in Part IV of the FOIA, which make no reference to any consequential impact of breach on the applicability of other pro visions.
  • The relevant part of the Code of Practice ... indicates that the requirement to give advice only arises once the public authority has reached the stage where section 12 applies (“Where an authority is not obliged to comply with a request for information...). Neither the statute nor the Code of Practice contain any suggestion that avoiding the obligation to comply is conditional on first complying with the Code of Practice or that a public authority must consult with the person seeking information as part of the process by which it reaches an estimated costs figure. This is entirely consistent with the purpose of the Code of Practice, (which is to provide guidance only), and with the language of section 16 itself, (which makes it clear in subsection (2) that the only impact of the Code of Practice is that a public authority which compiles with it will be found to have provided the advice and assistance necessary to avoid a breach of subsection (1).

The Tribunal were of the view that if they had declared that the failure to advise or assist invalidated the costs estimate in this case, “we risk falling into the trap of creating law, rather than interpreting law as created by Parliament and FOIA” (paragraph 21).

In this case, the IT explicitly stated that it would not follow the decision set out in Brown v ICO and National Archives - that failure to offer advice and assistance makes a s12 costs estimate invalid.

Brown v the Information Commissioner and National Archives

In Brown v the Information Commissioner and National Archives, the Tribunal found that because the public authority had not advised the applicant to make phased requests that would each individually fall under the costs limit it had breached s16 for failing to provide sufficient advice and assistance (see LTT87 for further consideration of this point) and incorrectly applied s12 because this rendered the estimate of costs unreasonable.

The Commissioner does not accept the Tribunal’s conclusion on section 12. His view, as set out above, is that the estimate was reasonable based upon the request that had been made. Provision of advice and assistance as suggested by the Tribunal would have enabled the applicant to submit a number of phased new requests which might each, individually, have fallen below the costs limit. However these would be treated as new requests, and would have no bearing on the estimate of costs in relation to the original request that had been made.