Line to take - LTT154 - The right to specify the form in which a copy is provided
- FOI/EIR: FOI
- Section/Regulation: s11(1)(a)
- Issue: The right to specify the form in which a copy is provided
- Source: DN, PARF
- Details: Anthony Swain v Student Loans Company; Arriva Trains v British Transport Police Authority
- Related Lines to Take: LTT72, LTT114
- Related Documents: FS50217416, PARF - POL 85, Hansard HoL 17th October2000: Column 1007
- Contact: RM
- Date: 19/05/2009
- Policy Reference: LTT154
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
Section 11(1)(a) includes the right to be provided with a copy of information in an electronic form but does not entitle the applicant to specify the specific software format.
Section 11(1) Where, on making his request for information, the applicant expresses a preference for communication by any one or more of the following means, namely —
- a) the provision to the applicant of a copy of the information in permanent form or in another form acceptable to the applicant,
- b) the provision to the applicant of a reasonable opportunity to inspect a record containing the information, and
- c) the provision to the applicant of a digest or summary of the information in a permanent or in another form acceptable to the applicant,
the public authority shall so far as reasonably practicable give effect to that preference.
The main purpose of s11(1)(a) is to provide the applicant with a right to specify that they want to be provided with a copy of the information requested. However the form in which that copy is provided can also be specified by the applicant. This has to be done at the time of the request (see LTT72).
It is recognised that s11(1)(a) refers to a copy of the information in a “permanent form or in another form acceptable to the applicant”. However it is not clear how the reference to the permanence of a copy helps us interpret what is meant by the term ‘form’. Therefore the Commissioner simply reads 11(1)(a) as providing the applicant with the right to a copy of the information and to have that copy in the form that they prefer.
The question which then arises is what do we mean by the term form? The Commissioner’s view is that it relates to the mode or state in which something exists. So as far as recorded information is concerned this means the recording medium in which information can exist. That is it covers such mediums as a hard copy (paper/printed copy), electronic copy, audio tape, video tape etc.
This is the approach is reflected in our external guidance awareness Guidance 29: means of Communication.
It is anticipated that requests for information in an electronic form will be the most frequent.
Our interpretation of s11(1)(a) as covering the provision of electronic copies is supported by a parliamentary debate on a proposed amendment to the Freedom of Information Bill (Hansard HoL 17th October 2000 Column 1007 onwards, or see PARF ref POL 85). Lord Lucus explained the purpose of his amendment was to ensure that, in the internet age, applicants were entitled to electronic information rather than being fobbed off with a paper version. The then Lord Chancellor, Lord Falconer, explained that the amendment was unnecessary as the clause, which eventually became section 11(1)(a), already provided for this. The Commissioner’s view is that this exchange reveals that the Governments intention was that s11(1)(a) should be read as extending to the provision of electronic copies.
Further support is provided by a decision notice ref FS50217416 in which we required that the Student Loans Company provide the complainant with a copy of its training manual in an electronic form.
Specific electronic formats
Cases have arisen where a complainant has demanded an electronic copy in a particular format, for example in a word document or a pdf file. The Commissioner’s view is that there is a distinction between the form in which a piece of information is communicated e.g. an electronic form, and how the data is arranged within that form i.e. the specific software format. In short although an applicant can ask for an electronic copy they are not entitled to specify down to the next level, the specific software format.
The mis-use of s11
The experience of caseworkers is that some complaints which are raised in respect to the application of s11(1)(a) turn out to concern quite different issues. For example in the Student Loan Company case the public authority argued that it was not reasonable for it to comply with the applicant’s request for an electronic copy of the training manual because the complainant could then easily place the document on the internet, so increasing the likelihood of the public authority’s copyright and confidentiality being breached. The DN concluded that these were not relevant considerations when deciding whether the provision of an electronic version was practicable. Information disclosed under the Act can still be protected by copyright and issues around confidentially are more properly dealt with under s41 or s43 (the public authority had previously claimed the manual was a trade secret).
In another case, ref FS50176916 (still in open at the time of writing) the complainant had requested an electronic version of an economic model. Although the public authority provided an electronic version of a spreadsheet, this was not a workable model, i.e. the complainant was not able to input their own data and run the model for themselves to test outcomes. The complainant argued that he wanted the model in an executable form which initially seemed to raise s11 issues.
However the real question is what is the difference between the version of the model disclosed and the workable version used by the public authority? If it is that the executable model contains calculations which then have to be applied to the data which is fed into it, the Commissioner’s view is that these calculations are all part of the model and so form part of the information requested. Therefore, subject to the application of the exemptions, the public authority is obliged to provide the model complete with all the underlying calculations / information.
In theory the public authority could write down all these calculations and workings out longhand and forward these in an email to the applicant, so providing all the information electronically. However the Commissioner places emphasis on the obligation under s1(1)(b) to communicate information. The most effective and meaningful way for the public authority to communicate the information would be to provide a copy of the working model as used by the public authority itself. This is in line with the Commissioner’s approach, set out in LTT114, which is to consider whether a public authority acted reasonably when providing information in order to determine whether it has complied fully with its obligations 1(1)(b). In short, the complainant would be entitled to a workable version of the economic model in an electronic form. In such a case the focus of the investigation should be on what additional information exists which falls within the scope of the request and how this information can be effectively communicated to the complainant. This is more of a s1 issue rather than the complainant’s rights under s11. Clearly if it was established that additional information was held then it is possible that the public authority would want to apply exemptions to that information under s11(1)(b).
It is also noted that s11(1)(c) provides that an applicant can ask for a digest or summary in a form of their choosing. Following our approach to s11(1)(a) we would interpret this as meaning that an applicant can request a digest/summary to be provided electronically or as a hard copy (paper/printed copy), audio tape, video tape etc.