Form and format of information (regulation 6)

About this detailed guidance

This guidance discusses regulation 6 of the Environmental Information Regulations 2004 (EIR) in detail and is written for use by public authorities. Read it if you have questions not answered in the Guide to the EIR, or if you need a deeper understanding of form and format of information under regulation 6.

In detail

• Overview
• What do the EIR say?
• When should the requester express their preference?
• What is form and format?
  • Form of the information
  • Format of the information
  • Subject headings
  • Digests and summaries
  • Inspection

• Are there any limits on our duty to provide the information in the requester’s preferred form or format?
• Can we provide the information in an alternative form or format?
• What if the information is already publicly accessible and available to the requester in another form or format?
• When should we inform the requester?
• What else should we consider?
  • Costs and fees
  • Advice and assistance
  • Translations
  • Datasets

Overview

The EIR give rights of public access to information held by public authorities. This is part of a series of guidance notes produced to help you understand your obligations and to promote good practice.

This guidance will help you respond when requesters ask you to provide information in a specific form or format. It explains how you can meet your duties under regulation 6 of the EIR, which are about the form and format in which you make the information available.

• Regulation 6 of the EIR is relevant when you are providing environmental information in response to a request and the requester has expressed a preference for receiving the information in a particular form or format. If you are not providing the information requested, because of an exception in the EIR, regulation 6 is not relevant.
• The requester must express their preference when they submit their request.
• ‘Form or format’ covers:
  • the physical form of the information (eg, electronic or hard copy);
  • how the information is organised within that form (eg, a particular electronic format);
  • how the information is made available (eg, providing a copy or allowing inspection).
• You need not organise the information under particular subject headings, even if that is specified by the requester.
• A requester can express a preference for a digest or summary of the information. If they do, you must establish whether this is a request for a digest or summary that already exists, or a preference for you to summarise the information.
• You need not comply with the requester’s preference if it is reasonable to make the information available in another form or format, or if it is already publicly available and accessible in another form or format.
• Deciding whether it is reasonable to provide the information in another form or format depends on the balance between making environmental information easily accessible and other legitimate factors.
• If you consider that the information is publicly available and accessible elsewhere, you must be able to direct the requester to where they can obtain all the information they have requested.
• If you do not intend to comply with the requester’s preference, you must explain why within 20 working days of receiving the request and inform the requester of their rights to complain.
• You may charge a reasonable fee for making the information available in the requester’s preferred form or format. You may not charge for making the information available for inspection.
• You have a duty to provide requesters with advice and assistance. In doing so, you must conform to the relevant part of the EIR Code of Practice.
• Regulation 6 does not require you to translate information into another language when responding to a request. However, you should be aware of any other duties you may have under other legislation to do this.

Unlike FOIA, the EIR do not contain specific provisions about datasets but if a requester asks for information in a re-usable form, you should consider this as a preference for a particular form or format.

What do the EIR say?

Regulation 6 of the EIR states:

6.—(1) Where an applicant requests that the information be made available in a particular form or format, a public authority shall make it so available, unless—

(a) it is reasonable for it to make the information available in another form or format; or

(b) the information is already publicly available and easily accessible to the applicant in another form or format.

(2) If the information is not made available in the form or format requested, the public authority shall—

(a) explain the reason for its decision as soon as possible and no later than 20 working days after the date of receipt of the request for the information;

(b) provide the explanation in writing if the applicant so requests; and

(c) inform the applicant of the provisions of regulation 11 and of the enforcement and appeal provisions of the Act applied by regulation 18.

Regulation 6 is about how you should make information available when releasing it under the EIR. It is relevant when you have received a request for information and have identified what information you are going to make available. If you are not making the information available because of an exception in regulation 12, regulation 6 will not apply.    

Regulation 6 aims to enable requesters to receive environmental information in their preferred form or format, subject to certain conditions. If they ask for the information in a particular form or format, you must provide it in that way unless one of two conditions applies. These are that it is reasonable to provide the information in a different form or format, or that the information is already publicly available and accessible to the requester in another form or format.  

If you do not provide the information in the form or format requested, you must explain why and inform the requester of their right to complain.

The provisions of regulation 6 are similar but not identical to those in section 11 of FOIA. Where relevant, this guidance explains the differences between the two regimes. There’s more about section 11 of FOIA in our guidance document on Means of communicating information.

When should the requester express their preference?

The requester must express their preference as to how they want the information at the same time they make their request. Section 11 of FOIA refers to the requester expressing a preference “on making his request for information”. Regulation 6 does not contain similarly explicit wording. However, under both FOIA and the EIR,  once a request is made, the deadline for responding to the request begins. This means that a request is not an ongoing process. Therefore, we consider that the requester’s preference must also be expressed at the same time as the request. This view was supported by the First-tier Tribunal in the following case.

Nevertheless, if the requester expresses a preference at a point after they have submitted their request but before you have started to do any work on the request, you may use your discretion to regard the preference as being expressed at the time of the request.

What is form and format?

Under regulation 6(1) a requester may ask for the information to be made available in a particular form or format. The phrase ‘form or format’ has a wide meaning, and in general usage the two terms are not always distinct. We consider that the term ‘form or format’ includes:

• the physical form of the information;
• how the information is configured or arranged within that form; and
• how the information is made available.

Form of the information

A requester may express a preference for the information to be provided in a particular physical form. This could include:

• a copy printed on paper;
• an electronic file, sent as an email attachment, or as a link to a web page, or on removable media such as a memory stick; or
• an audio tape.

Parliament introduced the EIR to implement the European Directive 2003/4/EC on public access to environmental information (the Directive), so the Directive remains relevant to our interpretation of the EIR. The Directive in turn implements the UN/ECE Convention on access to information, public participation and access to justice in environmental matters (the Aarhus Convention). The UK is an independent signatory to this international treaty. Article 4 of the Aarhus Convention says information must be made available “in the form requested”. The Implementation Guide to the Aarhus Convention explains this as follows:

Under article 4, members of the public may request information in a specific form, such as paper, electronic media, videotape, recording, etc. (page 54)

Format of the information

The phrase “form or format” is taken from Article 3(4) of the Directive:

Where an applicant requests a public authority to make environmental information available in a specific form or format (including in the form of copies), the public authority shall make it so available…

We consider that the use of this phrase means that a requester may specify a preference for both the physical form of the information and also how the information is configured or arranged within that form, ie the format. For example, regarding electronic information the term ‘format’ is generally used to refer to a file type, such as PDF or Microsoft Excel or CSV, so a requester may express a preference for one of these formats.

The Code of Practice on the discharge of the obligations of public authorities under the Environmental Information Regulations 2004 (SI 2004 no 3391) issued by DEFRA (the EIR Code of Practice) explains why the public authority must consider a requester’s preference for a particular format:

A public authority should be flexible, as far as is reasonable, with respect to form and format, taking into account the fact, for example, that some IT users may not be able to read attachments in certain formats, and that some members of the public may prefer paper to electronic copies. (Para 22)

There are more specific provisions in section 11 of FOIA requiring a public authority to make information available in an electronic form capable of re-use, but these only relate to one type of information, namely datasets. There is a further explanation of section 11 in our guidance documents on Means of communicating information and Datasets.

Subject headings

Our interpretation of the phrase ‘form or format’ does not imply that a requester can ask you to reorganise the information under particular subject headings. You will not breach your regulation 6 duties if you do not do so. The Information Tribunal made this point in the following case:

Digests and summaries

Unlike section 11 of FOIA, regulation 6 does not refer to the requester expressing a preference for a digest or summary. However, the EIR Code of Practice says the ‘form or format’ can include a digest or summary:

“Although there is no specific reference in the Regulations to the provision of information in the form of a summary or digest, a request for environmental information may include a request for information to be provided in the form of a digest or summary. This should generally be provided so long as it is reasonably practical to do so, taking into account the cost. Many applicants will find a summary more useful than masses of data, and this should be taken into account when considering proactive dissemination.” (para 23)

The significance of this point in the EIR Code of Practice is shown in regulation 9(3) of the EIR, which states:

9.—(1) A public authority shall provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to applicants and prospective applicants.

…

(3) Where a code of practice has been made under regulation 16, and to the extent that a public authority conforms to that code in relation to the provision of advice and assistance in a particular case, it shall be taken to have complied with paragraph (1) in relation to that case.

Therefore, you have a duty under regulation 9 to provide advice and assistance to requesters and you will have complied with that duty if you follow what the EIR Code of Practice says about advice and assistance. The relevant part of the Code is section III which deals with “The provision of advice to persons making requests for information” and the comments quoted above to do with digests and summaries are in that section. Therefore, if you provide a digest or summary when requested (so long as it is reasonably practical to do so), you will have complied with the Code and also met your duty under regulation 9(1).

It is important to distinguish between a requester asking for a pre-existing summary, and a requester asking you to summarise the information, rather than provide the full text.

An example of the first scenario would be where a requester asks you for “the executive summary from the report on X that was considered by the management board”. This is about whether you hold the specific information that has been requested, ie “an executive summary”. If you do not, then the exception in regulation 12(4)(a) may be engaged (the public authority does not hold the information when the request is received).

An example of the second scenario would be where a requester asks you for “the council’s report on its new recycling initiative in the form of a summary”. In this case the requester is asking for the information to be made available in a particular form or format. The requestor wants you to summarise the information they are interested in, so regulation 6 applies. Under the EIR you are not required to create new information to answer a request. Therefore, you would not have to write a new summary. However, you may be able to produce a summary by extracting parts of the information that has been requested. In the example above, it may be possible for you to cut and paste paragraphs from the report to produce a summary. If that is not possible, it may be reasonable for you to provide the full report instead. There is a further discussion of what is reasonable in the section below, ‘Can we provide the information in an alternative form or format?’.  

If you are in any doubt as to whether the first or second scenario applies when receiving a request, you should ask the requester whether they are requesting a pre-existing summary or whether they want you to summarise the information you hold.    

Inspection

Unlike section 11 of FOIA, regulation 6 of the EIR does not specifically cover inspecting the information. However, in our view, it should be interpreted broadly, so that a request for a particular form or format can include a request to inspect the information, rather than to receive a copy of it. Regulation 6 is intended to make it as easy as possible for requesters to access environmental information, and allowing inspection would aid that. Furthermore, the EIR provisions on charging in regulation 8 clearly envisage the inspection of information:

8. (2) A public authority shall not make any charge for allowing an applicant—

(a) to access any public registers or lists of environmental information held by the public authority; or

(b) to examine the information requested at the place which the public authority makes available for that examination

Article 3 of the Directive is about access to environmental information upon request. Paragraph 5 of this article refers specifically to providing facilities for inspecting requested information:

5. For the purposes of this Article, Member States shall ensure that:

…

(c) the practical arrangements are defined for ensuring that the right of access to environmental information can be effectively exercised, such as:

…

— the establishment and maintenance of facilities for the examination of the information required

The Aarhus Implementation Guide also says that the Aarhus Convention requires public authorities to make information available for inspection if requested. In explaining the Convention’s provisions about ‘form requested’ it says:

“The issue of form also means that public authorities must provide copies of documents when requested, rather than simply providing the opportunity to examine documents. In addition, some applicants may prefer to examine the original documents rather than receive copies. If they so request, public authorities must allow them to do so, subject to subparagraphs (i) and (ii) below.” (page 55)

The subparagraphs (i) and (ii) mentioned here refer to reasons for not meeting the requester’s preference and correspond to subparagraphs 6(1)(a) and (b) of the EIR.

You should also note that under regulation 8(2), which is set out above, you cannot make a charge for making the information available for inspection.

Are there any limits on our duty to provide the information in the requester’s preferred form or format?

The duty to make the information available in the requester’s preferred form or format is not absolute. You do not have to meet the requester’s preference if either of two conditions applies. Under regulation 6 of the EIR, these are: 

(a) it is reasonable for it to make the information available in another form or format; or

(b) the information is already publicly available and easily accessible to the applicant in another form or format.

Can we provide the information in an alternative form or format?

The first potential reason for not complying with the requester’s preference is that it is reasonable for you to make the information available in another form or format. In this case you are still making the information available but in a different form or format.

The key term here is ‘reasonable’. If you wish to take advantage of this condition, you must be able to show that it is reasonable to make the information available in a different form or format. Since Parliament introduced the EIR to implement the Directive, the purpose of the Directive is still relevant to our interpretation of this provision. Article 1 of the Directive states:

The objectives of this Directive are:

(a) to guarantee the right of access to environmental information held by or for public authorities and to set out the basic terms and conditions of, and practical arrangements for, its exercise; and

(b) to ensure that, as a matter of course, environmental information is progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information. To this end the use, in particular, of computer telecommunication and/or electronic technology, where available, shall be promoted.

You must therefore interpret this condition (that it is reasonable to make the information available in a different form or format) in a way that ensures environmental information is made available to the public as widely as possible.

What is reasonable will also depend on the circumstances of the case. This is shown in the following example.

So, when deciding which form or format is reasonable, you must strike a balance between the aim of increasing public access to environmental information and other legitimate factors.

What factors are legitimate will depend on the circumstances of the case. They could include the following:

• How the information is held. For example, the information may be held in a document that is particularly old or fragile, which could be damaged if copied.
• The cost of complying with the requester’s preference. To make the information available in the preferred form or format may involve actual expenditure or cost in staff time. Under regulation 8, you can charge the requester a reasonable fee for making the information available. There is an explanation of what the fee can cover in our guidance document Charging for environmental information. However, if complying with the requester’s preference would incur a significant cost and this cost cannot be passed on to the requester, it may be reasonable to take this into account in deciding whether to comply with that preference.   
• Your available resources.
• Whether there are issues, such as security restrictions or difficulties of physical access to records stores, which would prevent members of the public entering your premises to inspect records.

What if the information is already publicly accessible and available to the requester in another form or format?

The second potential reason for not making the information available in the requester’s preferred form or format is that it is already publicly available and accessible to the requester in another form or format.   

You cannot rely on this provision if you are only directing the requester to something similar to the requested information or a part of it or a summary of it, rather than all of it.

You must also be able to direct the requester to where the information is available. In the example given above, Trinity Housing Association had told the requester that the information was available from other organisations including the Land Registry and Down District Council. The Commissioner found that this was not specific enough:

“The Commissioner is of the view that a complainant cannot be expected to search for unspecified information that may or may not be held by another public authority.” (paragraph 17)

Regulation 6(1)(b) is perhaps most likely to be relevant if the information is already publicly accessible on a website (on your own website or another site). However, the information may be available and accessible in other ways such as a printed publication produced by you or another publisher, or it may be available for inspection elsewhere.

The key questions are whether the information is ‘publicly available’ and ‘easily accessible to the applicant’. So, if the information is available in a library, it must be one that the public can use and one that the requester can easily access. The Aarhus Implementation Guide comments:

“Informing an applicant about the existence of a single copy of a book in a library 200 km from his or her residence would probably not be a satisfactory response.” (page 55)

This highlights the issue of accessibility, but it should not be taken to mean there is a specific geographical limit, or distance, beyond which the information is not easily accessible. Any decision on this point will depend on the circumstances. 

You should also consider the cost to the requester of accessing the information by the alternative means. If this is the subject of a complaint to the Commissioner, they will not take account of the requester’s own financial circumstances when assessing whether the information is publicly available and easily accessible to them. However, there may be cases where the cost of accessing the information elsewhere is so high that it is not publicly available or easily accessible. On this point the Aarhus Implementation Guide says:

“In addition, “publicly” available assumes that the same reasonable cost standards are in place for that information as required under the Convention.” (page 55)

So, any cost to the requester of obtaining the information in the other form or format must conform to ‘reasonable cost standards’. This does not necessarily mean the cost must be minimal. If you are permitted to make a commercial charge for making information available, this may be considered a reasonable charge in terms of the EIR. There is a further explanation of this point in our guidance document on Charging for environmental information.

When should we inform the requester?

If you are making the information available in a different form or format to that requested, then under regulation 6(2) it must do the following:

(a) explain the reason for its decision as soon as possible and no later than 20 working days after the date of receipt of the request for the information;

(b) provide the explanation in writing if the applicant so requests; and

(c) inform the applicant of the provisions of regulation 11 and of the enforcement and appeal provisions of the Act applied by regulation 18.

We recommend that you always do this in writing, to avoid misunderstanding and for good record keeping.

Under regulation 11, requesters can ask for an internal review of the handling of their request, including how you have applied regulation 6. They must do this within 40 working days. If the requester is dissatisfied with the outcome of the internal review, under regulation 18 they may complain to the Information Commissioner.

What else should we consider?

Costs and fees

You may charge a reasonable fee for making the information available in the requester’s preferred form or format. There is an explanation of what the fee can cover in our guidance document on Charging for environmental information.

Under regulation 8(2), you may not charge a fee for making information available for inspection.

Advice and assistance

As noted above in the section on digests and summaries, you have a duty under regulation 9(1) to provide advice and assistance to requesters, so far as reasonable. Regulation 9(3) says the public authority will have complied with that duty if it conforms to what the EIR Code of Practice says about providing advice and assistance. The relevant part of the Code is part III (paragraphs 8 to 23). This contains general requirements about giving advice and assistance; and as regards form and format it says in particular:

Regulation 6 allows for the applicant to be given the information available in a particular form or format unless there is another reasonable approach to supplying the information. A public authority should be flexible, as far as is reasonable, with respect to form and format, taking into account the fact, for example, that some IT users may not be able to read attachments in certain formats, and that some members of the public may prefer paper to electronic copies. (para 22)

Translations

A requester might ask for information to be translated into a particular language, but you have no duty to do this under regulation 6. However, you may be obliged to translate it under other legislation, for example the Welsh Language Act 1993 and the Welsh Language (Wales) Measure 2011. The ICO has no role in regulating these. This is illustrated in the following case:

Datasets

FOIA contains specific provisions about making datasets (as defined in FOIA) available in a re-usable form and under a licence permitting re-use. The EIR do not contain any equivalent provisions. However, a preference for a particular form or format under regulation 6 could include a preference to receive information in a re-usable form. For example, a requester may ask for an electronic dataset of environmental information in a CSV format. You should consider this as a preference for a particular form or format, and comply with it as you would with any preference for form or format under regulation 6.

In this context, you should also be aware of the licences available under the UK Government Licensing Framework that they can use to license the re-use of information for which you own the copyright or database rights.

There is a detailed explanation of the dataset provisions in our guidance document on Datasets.