Section 16 – Advice and Assistance

Example

In Decision Notice FS50561738, the Commissioner said public authorities should give applicants advice and assistance to clarify situations where FOI requests may be deemed defective, with the aim of helping them make an effective request for FOIA purposes.

In this case, the applicant asked the Ministry of Justice (MOJ) whether the Queen’s Bench common law court had been closed and, if that was not the case, whether he was allowed access to it. The MOJ responded that this was not a valid request under FOIA. The MOJ argued that the first part of the request was a yes/no answer while the second part was a request for confirmation of a correct court procedure which could be handled as a ‘business as usual’ response.

During the investigation, the Commissioner advised that a request for information that fails to engage section 1 of FOIA does not necessarily mean the Act is irrelevant. In the Commissioner’s view, authorities can deal with requests in the ‘normal course of business’ provided this does not result in lower standards (eg disclosing less information, or taking longer to deal with the request). For instance, if the request is not properly framed, public authorities should provide advice and assistance in line with section 16 to help the applicant make it so and bring it within the scope of FOIA.

Example

A key case in applying section 16 is Berend v the Information Commissioner and London Borough of Richmond upon Thames (LBRT) EA2006/0049 & 0050 (12 July 2007). In this case, the Tribunal concluded that failure to comply with the Code does not necessarily become a breach of section 16 of FOIA.

The appellant had submitted two similar requests for information about the sale of a long lease of a piece of land by the London Borough of Richmond upon Thames.

Following an unsuccessful complaint to the ICO, the appellant put forward two appeals before the Tribunal.

Among other grounds of appeal, the appellant said the LBRT had breached section 16 of FOIA by failing to initiate contact with him and by failing to help him reframe his request to include a request for all relevant documents in scope.

The Tribunal rejected the appellant’s arguments.

As for LBRT’s failure to initiate contact with the applicant, the Tribunal explained that there is no general duty under FOIA requiring a public authority to initiate contact with an applicant. An obligation to do so would be under the s45 Code of Practice where a request requires clarification, which was not relevant in this case.

As for LBRT’s failure to provide assistance to the applicant to reframe his request, the Tribunal argued that – under the Code – the public authority can ask for more detail about a request for information only as far as this is necessary to enable them to identify and locate the information sought if the request is ambiguous. In this case, the Tribunal noted that, read objectively, the request was clear enough to enable the LBRT to know what information the applicant wanted.

Therefore, in its findings on section 16, the Tribunal concluded that “where the public authority has complied with the Code, they will be held to have fulfilled their obligations [under section 16], however, failure to comply with the Code does not inevitably mean that a public authority has breached section 16 FOIA.” [para. 40]

This accords with the Commissioner’s view that the section 16(1) duty to provide advice and assistance ‘so far as it would be reasonable to expect the authority to do so’ is limited by section 16(2). While a public authority might choose to go beyond what the Code says, it doesn’t have to do so to comply with section 16.

Example

In Decision Notice FS50512601, Sandwell Metropolitan Borough Council (MBC) relied on the cost exemption under section 12 to withhold the information requested.

When prompted by the applicant, Sandwell MBC suggested they submit a new request for consideration, specifying exactly what information they required.

The Commissioner did not accept that this response met the requirements of section 16 as it offered no advice to the complainant, but simply the opportunity to submit a fresh request.

The Commissioner required the public authority to contact the complainant to provide advice and assistance as to how he may be able to submit a refined request which Sandwell MBC might be able to comply with within the appropriate cost limit.

Example

In Decision Notice FS50502471, the applicant made an information request to the Home Office via the ‘What do they know’ website. The applicant received an automated response to say the email address in question was not in use.

The Commissioner said the Home Office had breached section 16 since it did not tell the complainant where new requests should be sent.

Example

In Brown v Information Commissioner and The National Archives EA/2006/0088 (2 October 2007), the Tribunal reached the conclusion that:

“the duty on a public authority to provide assistance and advice under section 16 is expressly qualified by the words ‘only in so far as it would be reasonable to expect the authority to do so’. It is clear from this that the advice and assistance that it would be reasonable to expect depends upon the particular public authority in question. The issue is about what it is reasonable for ‘the’ public authority in question to do.”

This case related to a request Mr Brown made to The National Archives (TNA) for information they held “in relation to the Princess Margaret Townsend Affair and or any illegitimate child born on or about 05/01/1955 to Princess Margaret”.

Initially, TNA refused the request stating that, in the absence of evidence to substantiate the applicant’s claim, the authority could not agree to carry out a search “for records that may not exist”.

Following this refusal, the applicant tried to identify from TNA’s online catalogue which records may be relevant to his search. This resulted in more than 600 requests, each relating to specific codes for records or descriptors which the applicant obtained from his search of the catalogue.

Given the volume of the request, TNA offered two alternatives to the applicant. These were: either a relevance review, ie research aimed at finding out whether a record contains a specific piece of information, in batches of 50 records per month or full access reviews in batches of 15 records per month.

The applicant did not communicate his decision to the authority and later chased TNA to request full access reviews of 50 records per month.

After receiving this communication, TNA wrote to the applicant and informed him they would not continue processing his requests. In its refusal notice, the authority relied on section 12 and section 14 of FOIA.

The Tribunal rejected TNA’s argument. It argued that searches are a core function of TNA. As a result, TNA should have recognised from the outset that the applicant’s request would have involved searching through a large number of records. In turn, this would have led to the request exceeding the appropriate limit under section 12.

The Tribunal commented that TNA should have therefore advised the applicant to send his requests on a phased basis, in intervals of more than 60 days.

The Tribunal concluded by arguing that “it would have been reasonable to expect TNA to advise the Appellant to phase his requests in intervals of more than 60 days, and to assist him to do so in a manner that was logical, took into account of [sic] his priorities and the nature of the searches that TNA could offer” [para. 79].

Example

In Decision Notice IC-47344-F9K8, the Commissioner argued that the authority should have obtained written clarification of the request. As a result, she found the authority had failed to provide the applicant reasonable advice and assistance and was therefore in breach of section 16.

In this case, the applicant had made a request by voicemail. However, he had directed the request to the wrong agency, which forwarded it to the right authority, which was the Department of Health and Social Care (DHSC). DHSC contacted the applicant with a generic response directing him to various publicly available information sources.

The applicant responded to this communication and submitted a written request. In the Commissioner’s view, this was not a valid request under FOIA because the applicant did not describe what information he wanted. However, DHSC could identify it by reading the request in the context of the voicemail request submitted that DHSC treated as a valid request.

Section 8(1)(c) of FOIA states unequivocally that a request must be in writing, although the Commissioner considers that public authorities should be pragmatic and helpful when dealing with individuals trying to request information verbally. In the circumstances above, DHSC should have emailed the requester stating what information it believed the requestor wanted and awaited written confirmation.

The Commissioner found that, by failing to do so, the authority had breached section 16.

Example

In Michael King v the Information Commissioner EA/2010/0126 (5 January 2012), the applicant had submitted a request to the Information Commissioner’s Office for information held by the ICO about Crawley Borough Council’s non-compliance with FOIA.

The ICO gave the requested information in the form of a synopsis of each case, plus redacted case closure letters written by the ICO. A disagreement then arose as to what had actually been asked for. The applicant raised a formal complaint via the ICO and ultimately appealed to the Tribunal.

In the appeal, the complainant argued that the ICO had breached its duties under section 16 by failing to provide advice and assistance to help him clarify the nature of the information sought.

On examining the evidence, the Tribunal concluded that:

“We found that the text of the request was clear and adequately specified the information sought. Therefore we do not see why the Commissioner would have needed to clarify what it meant. Accordingly, we find the Commissioner conformed with the Code of Practice and so did not breach section 16.”

This case builds on a precedent set in Berend v the Information Commissioner and London Borough of Richmond upon Thames (LBRT) EA/2006/0049 & 50 (12 July 2007) where the Tribunal reached a similar conclusion, ie that a request should be read objectively and that the public authority is under no obligation “to go behind what appears to be a clear request”. [para 86]

Example

This is further explored in the First-tier Tribunal (FTT) decision Nick Innes v Information Commissioner EA/2009/0064 (5 May 2011).

The appellant had made a series of requests seeking information on pupils’ progress at the school. He said the information he was given could not be understood without an explanation and argued that the public authority was under a duty to provide one under section 16.

In this case, the FTT found that the duty to provide advice and assistance does not extend to explanation of the information requested. Rather, its purpose is to help the applicant identify the information they are seeking.

The FTT commented that:

“There are numerous circumstances where eg technical or scientific information is disclosed which is meaningless to the requestor, without an explanation. It may be that an explanation is not held and one would have to be created especially for the requestor for the public authority to fulfil any perceived obligation to explain the data. This goes beyond the terms of section 1(b) FOIA which provides for the communication of information where it is held, and nothing else.” [para. 27]

As a result, the Tribunal concluded that it would not have been reasonable for the public authority to have to explain the information they were disclosing.

Example

In John Slater v. Information Commissioner EA/2019/0118 (31 March 2020), the Tribunal concluded that the authority did not breach section 16.

The applicant had submitted multiple requests, most of which would individually exceed the appropriate limit under section 12. When issuing its refusal notice, the authority informed the applicant of this and advised he needed to make a more focussed request. The FTT noted that the aim of section 16 is to start a dialogue with the applicant on how they can reframe their request, not “to provide a requester with a menu, or a price list, for retrieval of the various types of information it may hold” [para. 69].

In this case, the applicant did not engage with the authority to explore how to reframe the request to bring it within the appropriate limit. Therefore, the Tribunal was satisfied that the authority had complied with its section 16 duties.

Example

This is exemplified in Commissioner of the Metropolitan Police vs Information Commissioner and Donnie Mackenzie ([2014] UKUT 0479 (AAC) 22 October 2014). The case concerned a request originally made to the Metropolitan Police Service (MPS) for information about joint agency operations.

MPS refused the request because the cost of compliance would exceed the appropriate limit. MPS also informed the complainant that it could not suggest any practical way of modifying his request to bring it within the cost limit.

The Commissioner issued a Decision Notice (FS50503796) upholding the refusal on grounds of cost and finding that MPS had complied with its duty to advise and assist.

This decision was challenged by the applicant. On appeal, the First-tier Tribunal (FTT) reached a decision whereby MPS should have provided advice and assistance to enable a refined request to be made.

MPS then appealed to the Upper Tribunal (UT) requesting more general guidance on the meaning and extent of section 16.

The UT found that the adequacy of the FTT’s reasoning was insufficient (paras 25–26) and that its conclusions on section 16 FOIA in this case were “unsustainable on the evidence before it” (paras 21–24).

In reaching this finding, the UT built on a FTT’s decision in Bruce Beckles v Information Commissioner EA/2011/0073 & 0074 (7 September 2011). In this decision, the Tribunal had commented that:

“Section 16 requires a public authority, whether before or after the request is made, to suggest obvious alternative formulations of the request which will enable it to supply the core of the information sought within the cost limits. It is not required to exercise its imagination to proffer other possible solutions to the problem.” [para. 24]

According to the UT, this “represented an accurate statement of the law”.

As a result, the UT allowed MPS appeal. It dismissed the complainant’s appeal and upheld the Commissioner’s original decision notice.

Example

In Ms McInerney v Information Commissioner and Department for Education [2015] UKUT 0047 (ACC) (29 January 2015), the Upper Tribunal (UT) argued that “a public authority is not entitled to ignore section 16” when dealing with a request considered vexatious.

In this case, the applicant had requested from the Department for Education (DfE) information about applications to establish Free Schools and DfE’s decision letters in response to such applications. DfE initially relied on section 36(2)(c) to withhold the information. On appeal, the authority relied also on section 14, citing the burden responding to the request would entail. The First-tier Tribunal (FTT) found DfE had appropriately applied section 14.

Ms McInerney appealed the decision to the UT. When examining the point of the vexatiousness of the request, the UT stated “even in what appears to be a most vexatious request, the circumstances might allow a public authority to extract one part to create a non-vexatious request. (…) In such a case, it might be appropriate to discuss the matter under section 16.”

The UT did not decide the case on this point. However, this reasoning indicates that tribunals may consider the provision of advice and assistance as appropriate when it deems a request vexatious on grounds of cost or burden alone, especially in the context of the 2018 Code. Contrary to the 2004 Code, the 2018 Code no longer states that public authorities are not expected to provide advice and assistance to applicants whose requests are vexatious. In Cruelty Free International v Information Commissioner and Home Office [2019] UKUT 299 (AAC) (30 September 2019), the UT noted this omission while also drawing attention to the inclusion of paragraph 7.17 stating that public authorities may wish to explain to an applicant why the request is vexatious as part of the section 16 duty to provide advice and assistance.