Line to take - LTT151 - Examples where information is accepted as reasonably accessible to the applicant
- FOI/EIR: FOI
- Section/Regulation: s21
- Issue: Examples where information is accepted as reasonably accessible to the applicant
- Source: Information Tribunal
- Details: Ames / Cabinet Office (24 April 2008); Craven /ICO (13 May 2008)
- Related Lines to Take: LTT22, LTT143
- Related Documents: EA/2007/0110 (Ames), EA/2008/0002 (Craven)
- Contact: GF
- Date: 24/03/2009
- Policy Reference: LTT151
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
Although information may be available elsewhere, there is a need to consider if that information is actually reasonably accessible to the applicant.
The Commissioner accepts that information is reasonably accessible if the public authority:
- knows that the applicant has already found the information; or
- is able to precisely direct the applicant to the information. In this case the public authority has to be reasonably specific to ensure it is found without difficulty and not hidden within a mass of other information.
(*) NB - the public authority can only apply s21 if it holds the requested information.
Where information is available elsewhere, it does not necessarily mean that it is ‘reasonably accessible’ to the applicant. There are additional factors that should be taken into consideration in making the judgment whether the information is in fact ‘reasonably accessible’ to the applicant. The two IT decisions below demonstrate cases where information was held elsewhere and the Tribunal considered the accessibility of that information.
Craven v ICO
In the case of Craven v ICO, the applicant had requested a report, of which parts were in the public domain as a result of leaks by the author; media reporting and statements made in open court. The public authority had claimed s43(2) and s44(1) against disclosing the information, which was endorsed by the Commissioner’s decision notice. The applicant’s central ground of appeal was that the report was already in the public domain and therefore, the exemptions applied by the public authority did not apply to it.
The Tribunal said that if the report were fully in the public domain, there would be no purpose in requesting it under FOIA; nor would there be any basis in disclosing it under FOIA, as it would be exempt from disclosure by virtue of s21 (paragraph 26). However, the Commissioner would not unequivocally accept that if requested information is in the public domain, it is inevitably subject to s21; there are other factors to consider to assess whether that information is actually reasonably accessible.
At paragraph 27, the Tribunal noted the Applicant’s statement that he “readily obtained” minutes of Treasury Select Committee meetings and reports by the media, which were available to the public. The Tribunal was satisfied that this demonstrated that the parts of the report which had entered the public domain by this route were reasonably accessible to the applicant by means other than a request under FOIA, and that s21 could have been applied to those parts.
If the applicant had not been able to “readily obtain” that information, the Commissioner would require supplementary evidence to determine that not only was the information available elsewhere, that it was also reasonably accessible to the applicant. For example, he would expect the public authority to provide a clear direction as to where the information could be accessed or found. This point is given fuller consideration in the IT in Ames v Cabinet Office.
Ames v Cabinet Office
In the case of Ames v Cabinet Office, the applicant requested specific information as to the official(s) responsible for drafting the Iraq Weapons of Mass Destruction dossier’s executive summary at a specific date. The public authority responded advising that the:
- ‘drafting of the Iraq dossier, including the executive summary, is referred to in Cabinet Office evidence to the Hutton Inquiry and can be accessed at http://www.the-huttoninquiry.org.uk/content.evidence.htm . The information held by the Cabinet Office that is published on this site is therefore exempt under the absolute exemption in s21 of the Freedom of Information Act 2000 relating to information accessible by other means, the Cabinet Office does not hold any further information about which official or officials redrafted the executive summary between 10/11 September draft and the 16 September draft."’
At internal review, the public authority confirmed it did not hold a record of the officials who drafted the dossier’s executive summary between 11 and 16 September; the Commissioner found in his decision notice that the Cabinet Office had dealt with the request in accordance with the Act and had applied s21 correctly.
The Information Tribunal found that, in contrast to the Commissioner’s decision, that the requested information was not held on the website. The Tribunal went on to say that should there have been any information on the website that answered the request, “it would not necessarily follow that the material was reasonably accessible to Mr Ames so as to allow the Cabinet Office to rely on section 21”. The Tribunal were clear that they were not sure, that in a case where a public authority is asked for a very specific piece of information which it holds, it would be legitimate for the public authority to say to the applicant that the information is somewhere to be found on a large website like that of the Hutton Inquiry, even if the applicant was well informed.
The Commissioner accepts the Tribunal’s comment that this might be different if the public authority were to provide a precise link or some other direct reference to exactly where the requested information can be actually found. Therefore, the Commissioner believes that it is reasonable to expect public authorities to point specifically to the information rather than, for example, say that there could be something of relevance on a website.
Consequently, the Commissioner accepts that information is reasonably accessible if the public authority:
- knows that the applicant has already found the information; or
- is able to precisely direct the applicant to the information. In this case the public authority has to be reasonably specific to ensure it is found without difficulty and not hidden in a mass of other information.
(*) NB — the public authority can only apply s21 if it holds the requested information.