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Regulation 9 – Advice and Assistance

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About this detailed guidance

This guidance discusses in detail regulation 9, the duty to provide advice and assistance, of EIR and is written for use by public authorities. You should read it if you have questions not answered in the Guide to EIR, or if you need a deeper understanding of your obligation to provide reasonable advice and assistance to individuals making requests for information under EIR.

This detailed guidance does not apply to requests that fall within the scope of the Freedom of Information Act (section 16).

When providing advice and assistance under regulation 9 of EIR, you should be mindful of obligations that may arise from complying with other Acts of Parliament such as the Equality Act 2010.

In detail

What does regulation 9 of EIR say?

Regulation 9 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.

(2) Where a public authority decides that an applicant has formulated a request in too general a manner, it shall—
(a) ask the applicant as soon as possible and in any event no later than 20 working days after the date of receipt of the request, to provide more particulars in relation to the request; and
(b) assist the applicant in providing those particulars.

(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.

(4) Where paragraph (2) applies, in respect of the provisions in paragraph (5), the date on which the further particulars are received by the public authority shall be treated as the date after which the period of 20 working days referred to in those provisions shall be calculated.

(5) The provisions referred to in paragraph (4) are—
(a) regulation 5(2);
(b) regulation 6(2)(a); and
(c) regulation 14(2).

Regulation 9 requires you to provide advice and assistance about requests for environmental information. This duty extends to applicants and prospective applicants, as far as it would be reasonable to expect you to do so.

If an applicant has formulated a request in too general a manner, regulation 9(2) requires you to ask them for more details of their request. You should do so as soon as possible or, in any event, no later than 20 working days from the date you received it.

If the request has been formulated in too general terms, regulation 9(2)(b) also expects you to help the applicant give details that would help you clarify the request.

The duty to provide advice and assistance under EIR is wider in scope than under the FOIA regime. When receiving a request, you should check what kind of information the applicant seeks and ensure you handle it under the right access regime, including by providing reasonable advice and assistance.

What does the EIR Code of Practice say?

Regulation 9(3) says you will have complied with your duties to provide advice and assistance if you have conformed to a Code of Practice issued under regulation 16. Currently, there is one such Code of Practice, namely the Code of Practice on the discharge of the obligations of public authorities under the Environmental Information Regulations 2004 (SI 2004 No. 3391) (the Code).

In line with the spirit of the legislation, one of the Code’s general aims is to facilitate the disclosure of environmental information under the regulations. You should be mindful of this overall goal when dealing with requests as this will help you decide what level of advice and assistance is the most appropriate to the circumstances.

Part III of the Code provides you with guidance as to recommended good practice on providing reasonable advice and assistance.

Specifically, the Code outlines the following recommended steps:

  • Providing an outline of the kind of information you hold and which may fall within the scope of the request.
  • If available, providing access to catalogues and indexes with the aim of helping applicants verify the nature and extent of the information you hold.
  • Broadly responding to the request while giving options for further information that could be provided on request.
  • Directing the applicant or prospective applicant to another agency or body, such as Citizens Advice, which may be able to help them formulate their request or submit it on their behalf.
  • Publishing your procedures for dealing with requests, including as part of your publication scheme. These should include an address, ideally an email address, where applicants can direct their request for information and assistance. It is best practice to include a telephone number and a named point of contact who can help.
  • Providing appropriate assistance to applicants who may be having difficulty formulating their request clearly or who have formulated it in too general terms. In these instances, you should contact the applicant as soon as possible to ask for more details about the information sought. If needed, you should also help them provide those details, for example by helping them describe more clearly the information requested;
  • Offering the information in the form of a summary or digest, as far as this would be reasonably practical for you to do.
  • Making potential applicants aware of the relevant access regime to information under the EIR and FOIA, so far as they appear to be unaware of them.

The Code does not set a limit to the level of advice and assistance that you are required to provide. It states that you should be flexible and provide the level of advice and assistance most appropriate to their specific circumstances.

What is most appropriate to the circumstances will not necessarily be limited to the steps outlined in the Code. Rather, it will vary from case to case. Sometimes you will not have to take all the Code’s recommended steps to comply with regulation 9. However, sometimes you will need to exceed them.

In practice, this means you could still be found in breach of regulation 9 even if you have followed the Code’s recommended steps. For example, this may happen when failing to take account of something that the Code does not cover but which may still be advice and assistance that would have been reasonable for you to provide in certain specific circumstances.

In what circumstances should we provide advice and assistance?

Giving advice and assistance is a wide-ranging duty. Often, it may be relevant to most, if not all, stages of the request process.

The circumstances when you may need to offer advice and assistance include:

  • prospective applicants, ie where someone has made clear they intend to make a request for information;
  • where the request is too vague or general;
  • where the information is already publicly available; or
  • where the request has been turned down because of an exception (eg, reg 12(4)(b) and (c)).

This list is not exhaustive. As previously mentioned, the duty to provide advice and assistance under regulation 9 is wide. You should consider each situation carefully and decide the most appropriate level of advice and assistance in the circumstances.

Example

An individual tells a public authority that they are interested in its energy efficiency and the waste it generates.
The public authority gives the potential applicant advice and assistance by explaining the types of information it holds and its charging policy. It also informs the individual that its website includes yearly energy-efficiency reports in its publication scheme.

The duty to provide advice and assistance can also be triggered if you are aware – at the time of the request – that the applicant may actually be seeking other information, beyond what they have asked for in the request.

In this situation, you should respond by providing the information the applicant has requested. However, if your examination of the request shows that the applicant is clearly seeking other information and what this is, you should also advise and assist them with a view to enabling them to make another request.

Example

In Decision Notice FER0816970, the Commissioner found the authority in breach of regulation 9 for failing to help the applicant clarify a request that had more than one objective reading.

The applicant had asked Cheshire East Council for “correspondence regarding the commissioning of the speed limit of the B5077”. The Council had considered changing the speed limit on this road in both 2016 and 2018. On both occasions, it had carried out consultations. When dealing with the applicant’s request, the Council assumed they were interested in the most recent one and disclosed that information.

The Commissioner concluded that there was more than one reasonable interpretation of the request and argued the Council should have assisted the applicant clarify his request at the point of receiving it. As a result, the Commissioner decided the Council had breached regulation 9 of EIR by not providing adequate advice and assistance to the applicant.

In practice, the duty to provide advice and assistance is about good customer service. It is the means by which you can engage with an applicant to establish what they want and, where possible, to help them obtain it.

This also means that discharging this duty is unlikely to cause you any additional burden as it should be fulfilled by your usual customer service standards.

How far should we go to provide advice and assistance?

Regulation 9(1) says you have a duty to provide ‘reasonable’ advice and assistance. The term ‘reasonable’ is not defined in the EIR. However, as previously mentioned, the Code says you should be flexible and treat each request or proposed request individually, depending on the circumstances.

In many cases, the nature of the advice and assistance required is likely to be clear from the outset. In others, you will need to have a discussion with the applicant to see what advice and assistance would be appropriate, and therefore reasonable.

As we have seen, the Code gives examples of types of advice and assistance that may be appropriate.

The examples in the Code are not exhaustive. More often than not, what is the ‘reasonable’ level of advice and assistance you need to provide will be dictated by the specific circumstances of the case. For instance, in some circumstances ‘reasonable’ advice and assistance could include:

  • informing a potential applicant of their rights under the EIR;
  • helping an applicant to focus their request, perhaps by saying what types of information are available;
  • informing an applicant that information is available elsewhere, and explaining how to access it; or
  • keeping an applicant informed of the progress of their request.

Example

In Decision Notice FS50596886, the Commissioner found that the authority did not provide the applicant with meaningful advice as it failed to help them be more specific and narrow down the scope of their request.

The complainant requested all information about a listed building held by named officials at a District Council. The Council initially dealt with the request under FOIA and refused the request under section 12 because the cost of compliance would exceed the appropriate limit. At this stage, the Council had simply asked the complainant to be more specific and to narrow the scope of the request.

During the Commissioner’s investigation, the Council recognised that the request should have been handled under EIR. As a result, it refused the request by relying on regulation 12(4)(b), ie that it was manifestly unreasonable as it was too voluminous and would therefore cost too much to comply with it.

In reaching their finding, the Commissioner considered the EIR Code of Practice, specifically its suggestion that the public authority could give the applicant access to detailed catalogues and indexes where these are available. In this case, the Commissioner found that this was the type of advice and assistance the Council should have considered giving to the applicant to meet its advice and assistance obligations.

As previously said, there will be occasions where you will need to go beyond the Code’s recommended steps to comply with regulation 9. You should be mindful not to take a ‘one size fits all’ approach. Rather, you should always consider what reasonable advice and assistance you can provide on a case-by-case basis, depending on the circumstances.

In general, the Commissioner expects you to give as much advice and assistance as possible but also accepts that sometimes there may be no advice or assistance you could reasonably give, in the specific circumstances.

Example

In Decision Notice FER0463795, a request was made to a Council for information about a planning application. The Council applied various exceptions to the information requested. The Commissioner disagreed that the exceptions applied and ordered that the information be disclosed.

The requester also argued the Council had failed to give any advice and assistance during the handling of the request.

Regarding the provision of advice and assistance, the Commissioner considered the good practice recommended by the EIR Code of Practice. This falls into three broad categories:

  • Assisting potential requesters to submit their requests.
  • Helping applicants to better describe the information they are seeking (clarification).
  • Assisting requesters who have asked for information in a specific form and format (regarding the application of regulation 6).

The Commissioner looked at the Council’s handling of the request and decided that the request did not trigger any of the broad classes of advice and assistance identified above. The Commissioner also found it unclear what further steps the Council might have taken, beyond the EIR Code’s explicit recommendations, in handling the request. The Commissioner therefore found that the Council had complied with regulation 9(1).

The Commissioner will consider any complaints about providing reasonable advice and assistance on a case-by-case basis.

How should we handle a request formulated in too general a manner?

Usually, a request is formulated ‘in too general a manner’ if it is unclear what information the applicant wants, thereby making it difficult for you to identify and locate it.

If you have received this kind of request, regulation 9(2) says you must contact the applicant for more details about their request. Regulation 9(2) also expects you to help them give these details. For example, you should help them describe more clearly what they seek.

If, after providing reasonable advice and assistance, the requester fails to refine the request, regulation 12(4)(c) allows you to refuse to disclose environmental information.

Example

In Decision Notice FER0783541, the Commissioner found that the authority was right in relying on regulation 12(4)(c) as it had tried to seek clarification from the applicant about the request without receiving a response.

The applicant had asked Cambridgeshire County Council for information about the legal status of a “vehicle footway crossover and access way”. The Council responded by providing the applicant with a plan of the area and asking them to indicate on the plan the precise area they were seeking information about. This was because part of the area described in the request was public highway and part of it was privately owned. The Council argued that, without knowing the exact area the applicant was interested in, they could not respond correctly.

The requester never provided this clarification. As a result, the Commissioner found regulation 12(4)(c) was engaged.

How should we handle contact with the applicant?

It is good practice to contact an applicant or prospective applicant at an early stage when providing advice and assistance. You should maintain a dialogue with them while dealing with the request, keeping them informed at every stage.

You should also ensure the advice and assistance you provide is clear and intelligible to them.

To contact the applicant for clarification, the EIR Code suggests you use telephone, fax or email. However, the method you choose will depend on the circumstances. For instance, an applicant with limited internet access may prefer contact by phone.

Similarly, you should try to provide the information in the form and format requested by the applicant, unless there is another reasonable approach or the information is available and easily accessible in another format. If this is not possible, as part of your duty to provide advice and assistance, you should explain to the applicant why you cannot reasonably provide the information in their preferred format. When considering form and format, you should be mindful of your obligations under other laws, for example equality legislation. In the same way, statutory provisions may apply that may require you to provide information in other languages, for example duties arising from the Welsh Language Act 1993 and the Welsh Language (Wales) Measure 2011.

When contacting an applicant, you should also be prepared to explain why you need more information. For example, you should explain why the request as it stands is unclear.

You should be mindful not to give the applicant the impression you are trying to determine the motive behind their request. However, there may be situations when knowing the reason for it may help you to identify what the requester is seeking. In such instances, you should explain to them why it would be useful for you to know the aim of their request. However, you should make clear that this is not a requirement and you cannot insist on a reason if they are unwilling to provide one.

It is good practice to keep a record of any advice and assistance or clarification you have given. If there is a dispute or complaint, this will help you demonstrate your compliance.

What are the timescales for responding to an applicant?

If an applicant has formulated their request in too general a manner, regulation 9(2)(a) states that you must contact the applicant as soon as possible or within 20 working days of the date of receiving the request.

If you receive clarification from the applicant, you should treat this as a new request. This means that the 20 working day statutory limit for responding starts from the date you receive the clarification.

This applies only if you used the exception in regulation 12(4)(c). That is, you refused the request because it was formulated in too general a manner and you provided advice and assistance in line with regulation 9.

The 20 working day clock does not stop if you can easily identify and locate the information being requested but you decided to ask the applicant if they are also interested in some other information.

If the applicant does not provide clarification, you will still need to respond to the original request within 20 working days.

For this reason, it is important you contact the applicant as soon as possible if you have received an unclear request.

What reasonable advice and assistance should we provide when refusing a request?

If you are refusing a request because it was formulated in too general a manner, you should provide advice and assistance in your refusal notice and help the applicant refine their request.

This is a requirement if you are relying on regulation 12(4)(c).

If you are using a different exception, there is no formal requirement to provide advice and assistance in your refusal notice.

However, if you are refusing the request under regulation 12(4)(b) as manifestly unreasonable because of burden or cost, the Commissioner normally expects you to provide the applicant with reasonable advice and assistance to help them submit a less burdensome request.

Failure to provide advice and assistance does not necessarily invalidate the use of this exception.

However, First-tier Tribunals have been unwilling to support the use of regulation 12(4)(b) when public authorities have not tried to give the applicant advice and assistance. The Tribunals have held that, when applying the exception for manifestly unreasonable requests because of burden or cost, public authorities should act in a reasonable way, which includes giving advice and assistance.

Example

In Mersey Tunnels Users Association vs IC & Halton Borough Council EA/2009/0001 (24 June 2009), the Tribunal considered the exception for manifestly unreasonable requests (regulation 12(4)(b)) in terms of whether it would be costly and burdensome to respond to the request. As part of this, the Tribunal looked at the duty to provide advice and assistance. It acknowledged that regulation 12(4)(b), unlike regulation 12(4)(c), does not specifically require compliance with regulation 9. However, it also argued that:

”(…) we do not consider that a public authority can rely on this exception if it has itself acted unreasonably in dealing with the request. In this case we consider that the Council has acted unreasonably itself by not clarifying the scope of the request.”

The position of this judgment was supported by the Tribunal in the more recent case of Bright vs IC & City of York Council EA/2015/0107 (16 November 2015). In this case, the Tribunal noted at paragraph 14 that they:

”accept and adopt a previous decision of this Tribunal in our understanding of this exception, and in particular (…) A public authority will not be able to claim that a request is manifestly unreasonable where it has acted unreasonably in dealing with the request, for instance by failing to comply with its duty to advise and assist the requestor.”

There may be cases where you cannot provide part of the information falling within the scope of a request that is manifestly unreasonable because of the costs involved. In these circumstances, you should contact the applicant to ask what part of the request is most important to them, and decide whether you could provide it.

The Commissioner would expect you to help the applicant rephrase their request in a way that would enable you to provide some information.

Example

In Decision Notice FER0558525, the Commissioner found the authority in breach of regulation 9 for failing to reasonably advise and assist the applicant to reframe the request in a way that would make it less burdensome.

The requester had asked a Council for “details of any statutory notices issued under the Highways Act 1980 such as those issued under Sections 152, 154, 167 and 230 (and any other sections as appropriate) that remain open i.e. where the matter has not been resolved by the property/land owner.” The Council refused the request because it was manifestly unreasonable under regulation 12(4)(b).

The Council had cited the exception because the cost and burden of dealing with the request was too great as the information requested was not held in a centralised way. The Council told the Commissioner that it did give such information in response to land searches (Con29 searches) regarding a specific property for a modest fee. But, in this case, the applicant was asking for information about the entire county.

The Council gave no advice and assistance about refining the request.

The Commissioner found that the authority had correctly applied the exception for manifestly unreasonable requests. However, in the Commissioner’s view, it would have been reasonable for the Council to suggest the request be made regarding specific properties.

As a result, the Commissioner found that the Council had breached regulation 9(1) by not giving appropriate advice and assistance.

Therefore, it is good practice to always consider what appropriate advice and assistance you can give the applicant when issuing a refusal notice, if this would be reasonable in the circumstances.

What reasonable advice and assistance should we provide about charging for information?

The EIR allows you to charge a reasonable fee for making environmental information available.

As part of your regulation 9 obligations, you should consider what advice and assistance you can give the applicant on the options for making information available, including as regards applicable charges.

If an applicant says they are unwilling to pay the fee, it is good practice to help them refocus their request by explaining what sort of information may be available for a lesser fee.

If an applicant does not intend to pay the fee, the Code says you should also consider whether you hold any information that might interest the applicant which you could provide free of charge.

The Commissioner also takes the view that, as part of your duties under regulation 9, you should offer applicants the opportunity to inspect the documents first. This would enable them to decide whether they are willing to pay for a copy.

Example

In Keston Ramblers Association v Information Commissioner and London Borough of Bromley EA/2005/0024 (26 October 2007), the Tribunal offered some observations on the interaction between regulation 8 (fees) and regulation 9 (advice and assistance) of the EIR, although this was not central to the appeal.

In this case, the relevant information held by the public authority comprised over 300 pages of documents. In its submissions to the Tribunal, the Commissioner suggested that, where a public authority had collated the requested information and offered to provide copies for a fee, the duty to provide advice and assistance would normally require the authority to offer applicants the opportunity to inspect the documents first. This would allow applicants to decide whether they simply want to inspect the documents or whether they wish to pay for copies.

The Tribunal said this was likely to be the correct approach and would avoid “any sense of grievance” arising from applicants paying for copies of information that may not be relevant to what they are interested in.

Further reading

If you wish to explore topics regarding the provision of advice and assistance, please refer to the following guidance:

Given its relevance for the discharge of your duties under regulation 9, we also recommend you read the EIR Code of Practice.