About this detailed guidance
This guidance discusses section 11 of the Freedom of Information Act (FOIA) and is written for use by public authorities. Read it if you have questions not answered in the Guide to FOIA, or if you need a deeper understanding of how to communicate information under section 11.
- What does FOIA say?
- When should the requester express their preference?
- Section 11(1): choice of means of communication
- Section 11(1)(a): the form of the information
- Section 11(1)(b): opportunity to inspect
- Section 11(1)(c): digests and summaries
- What is meant by ‘reasonably practicable’?
- Section 11(3): explaining reasons for not complying with a preference
- Section 11(4): any means reasonable
- Can we charge a fee for communicating the information?
- What else should we consider?
The Freedom of Information Act 2000 (FOIA) gives 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 explains how you should comply with your duty under section 11 of FOIA regarding the means of communicating information to the requester.
- Section 11 is relevant when you are providing information to a requester in response to a FOIA request. If you are not providing the information because of an exemption, section 11 is not relevant.
- Section 11 places certain duties on a public authority as regards how you provide information in response to a FOIA request.
- The requester may express a preference for having the information communicated by a particular means, namely a copy of the information, an opportunity to inspect it or a digest or summary.
- The requester must express their preference at the time of making the request.
- The preference may be for the information in a particular form, eg electronic or hard copy. If the preference is for an electronic copy, this can include a preference for a particular electronic format.
- If the requester prefers to inspect the information, you should make it available for inspection if this is reasonably practicable.
- If the requester wants a digest or summary, you must establish whether this is a request for one that already exists or a preference for you to prepare one.
- A digest or summary means a shortened version of all the information that is not exempt from disclosure. It does not mean a non-exempt version of exempt information.
- You must make the information available by the preferred means so far as reasonably practicable. What is reasonably practicable will depend on factors such as how the information is held, the cost of complying with the preference, and your resources and security.
- If you are not complying with the requester’s preference, you must explain why. In that case, you may provide the information by any means reasonable.
- You may charge a fee to cover the cost of communicating the information.
- If you are not communicating the information by the preferred means, it would be good practice for you to discuss this with the requester to find an acceptable alternative.
- If the information is already reasonably accessible to the requester, it may be exempt under section 21 of FOIA. If so, section 11 does not apply.
- You should be aware of any other statutory duties you may have under other legislation to provide information in other languages.
- There are provisions in section 11 regarding datasets. These are dealt with in a separate guidance document.
- If the information is environmental, you must consider your duties under regulation 6 of the Environmental Information Regulations (EIR).
Section 11 of FOIA states:
11 Means by which communication to be made.
(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 permanent form or in another form acceptable to the applicant,
the public authority shall so far as reasonably practicable give effect to that preference.
(2) In determining for the purposes of this section whether it is reasonably practicable to communicate information by particular means, the public authority may have regard to all the circumstances, including the cost of doing so.
(3) Where the public authority determines that it is not reasonably practicable to comply with any preference expressed by the applicant in making his request, the authority shall notify the applicant of the reasons for its determination.
(4) Subject to subsections (1) and (1A), a public authority may comply with a request by communicating information by any means which are reasonable in the circumstances.
Subsections 11(1A) and 11(5) are about datasets. We have a separate guidance document on datasets.
Section 11 is about how you should provide information you are releasing under FOIA. It is relevant when you have identified information you are going to provide in response to a request under FOIA. Section 11 is not relevant if you are not providing the information because to comply with the request would exceed the appropriate limit, or the request is vexatious or repeated, or the information is exempt under Part II of FOIA.
FOIA recognises that requesters may want to receive information in different ways. For example, they may prefer to have it in hard copy or electronic form. Alternatively, they may want to come to your offices and inspect the information. The various ways you can provide the information are called the ‘means of communication’.
Section 11 imposes certain duties on you if a requester expresses a preference for a particular means of communication. This guidance document explains when those duties arise, their extent and what you must do to comply with them.
You need only comply with a requester’s preference for the means of communication if they express it when submitting their FOIA request. You do not have a duty to comply with the preference if the requester expresses it later, either after you have started to deal with the request or after you have provided the information.
In the First-tier Tribunal case of W J Bunton v Information Commissioner (EA/2011/0058, 9 March 2012) (“Bunton”), Homes for Islington had provided some information in response to a request from Mr Bunton. In subsequent correspondence, he asked for the information in a particular electronic format. The First–tier Tribunal found that, in not complying with this, the authority had not breached section 11, because he had expressed this preference after he had made his request:
“…we conclude that the Appellant did not express a preference for the form (or format) of the information he was requesting at the time he made the request. His request was made on 29 June 2008 and his expression of preference for a format was made on 29 October 2008. Section 11 FOIA is clear about the requirement to express a preference about the form in which the information is to be provided at the time of making the request.” (para 20)
The Court of Appeal case of Innes v Information Commissioner and Buckinghamshire County Council ( EWCA Civ 1086, 31 July 2014) confirmed this approach. In the leading judgment, Underhill LJ said that “the natural meaning of the phrase “on making his request for information” is indeed that the expression of a preference under section 11(1) about the means by which the requested information is to be provided must be made at the time of the original request. I see no reason to strain for a looser meaning.”
If a requester expresses a preference after submitting the original request, you need not follow that preference. You can only consider the preference if they wish it to be treated as a new request. You should make this clear to them. This will ensure that a late expression of preference does not disrupt your ability to comply with the request within the statutory time limit.
However, if the requester expresses a preference at a point after submitting their request but before you have started to do any work on it, you may use discretion to consider the preference.
Section 11(1) lists three means of communication for which a requester may express a preference. These can be summarised as:
- a copy of the information;
- an opportunity to inspect the information; and
- a digest or summary of the information.
Each of these options is discussed in more detail below.
The requester is not restricted to one option. Section 11(1) refers to “one or more of the following means”. For example, the requester may want to inspect the information and also receive a copy.
Section 11(1)(a) refers specifically to “a copy of the information in permanent form or in another form acceptable to the applicant”. We consider this to mean that a requester can ask for a copy of the information in the form they prefer, eg hard copy, electronic, audio tape.
In decision notice FS50468577, the requester asked the London Borough of Bexley for a paper copy of the Chief Executive’s business diary for a particular month. The Council provided an electronic copy, by email, as it held the diary in electronic form. The Commissioner found that the Council had breached section 11 by not giving effect to the requester’s preference for a paper copy. It could have taken screenshots of the diary for the relevant period, printed them off and given them to the requester. After the Commissioner’s investigation, the Council did so.
A requester may express a preference to receive the information in a particular form. If a preference is expressed for information in electronic form, this also extends to the particular electronic format. So a requester can express a preference for the information in Word, PDF or Excel format, for example. You must provide the requested information in the specified form so far as reasonably practicable.
This interpretation is supported by the Court of Appeal’s decision in the following case:
In the Court of Appeal case of Innes v the Information Commissioner and Buckinghamshire County Council  EWCA Civ 1086) (“Innes”), the Council had provided information that Mr Innes had requested as a series of screenshots in PDF format. Mr Innes argued that he had asked for the information as an Excel spreadsheet and under section 11(1) he was entitled to receive it in that file type.
The Court of Appeal said a preference for information in electronic form means a requester can express a preference for a particular electronic format. In the leading judgment, Underhill LJ based this, firstly (at para 38), on the plain meaning of the word ‘form’:
“The starting point is that it seems to me a natural use of English to describe the software format in which a copy (or digest) of the requested information is provided as an aspect of its “form” ….. Once it is accepted that an applicant can require provision of information in electronic form it seems to me only a small step to hold that he can also choose the format in which that electronic information is provided: the one naturally follows from the other”; and, secondly (at paragraph 39), on a purposive construction of section 11:
“Such a reading fits, as Mr Innes says, with the apparent philosophy of the Act. Citizens are given the right of access to public information at least in part so that they can make use of such information. A construction of the Act which makes it easier for them to do so effectively is to be preferred.” The Court of Appeal therefore agreed with the requester as regards section 11.
In view of the Innes judgment, “form” in section 11(1)(a) should be interpreted as including format. It is therefore similar to the comparable provision in regulation 6 of the Environmental Information Regulations which refers to “form or format”. In our guidance on that provision we recognise that in general usage the phrase “form or format” has a wide meaning and that there is often no clear distinction between the two terms.
This approach also reflects the growing trend towards open data which seeks to increase the proactive publication of information by public bodies. This trend also seeks to improve ease of access and enhance the re-use of information by using standardised, open formats. A requester’s ability to express a preference for a public authority to provide information in a file type such as CSV, for example, will allow the information to be easily re-used. However, you need not provide the information in this format if it is not reasonably practicable.
When providing information in a re-usable format, you should take steps to ensure that any exempt information in the underlying data is redacted to avoid inadvertent disclosure. For example, you should ensure that any personal data is redacted so it is not unintentionally disclosed. The risk of this happening occurs with spreadsheets in particular. Therefore, you should ensure that requested information is prepared safely for release. For example, when data is presented in the form of a ‘pivot’ table, the source data is retained. If possible, you should consider disclosing the information in a CSV file format instead.
Similarly, a preference for the information to be provided in hard copy form will include hard copy format, although in practice this is limited as there are fewer options for hard copy. Theoretically, a requester may ask for a hard copy of the information to be provided as a photocopy or as a printed sheet. However, this would not extend to the requester being able to express a preference for how the information is set out within the hard copy form. Our interpretation of “format” in this context is that a requester cannot ask you to reorganise the information within the hard copy form. For example, the requester cannot ask you to set out the information under particular headings or subject categories. However, you remain obliged to consider the information you hold within the scope of the request and to extract and supply relevant information that is not exempt.
This approach was confirmed by the Information Tribunal in the case of Keston Ramblers Association v the Information Commissioner and London Borough of Bromley (EA/2005/0024, 26 October 2007) concerning a request under the Environmental Information Regulations, specifically for copies of correspondence between the public authority and seven different bodies. The requester argued that the authority had not met its obligations in terms of form or format and should have sorted the information into seven groups, relating to the seven bodies. The Tribunal considered that “form or format” did not mean subject categories:
“…. Mr Pitt-Payne and Mr Wong submitted that the expression “form or format” is not a reference to categories of subject-matter, but is a reference to whether the information should be supplied by means of paper copies, or electronically, or by viewing of a microfiche, and so on. We think that submission is probably correct, ….”
In terms of electronic format, the equivalent to the Keston Ramblers case would be a request for the information to be laid out in certain columns or rows as opposed to a request for the information to be provided in Excel format. Whereas the latter would be a legitimate expression of preference for means of communication under section 11, the former would not be. What might constitute the hard copy equivalent of a preference for a particular electronic format is not as straightforward. However, it may be legitimate for a requester to express a preference for information on expenditure by geographical area to be provided in the form of a table rather than in map form. A hard copy table comprising figures and words can be regarded as a different format to the same information portrayed in map form, as the data can be read and extracted in a different way. In other words, these are two different ways in which the information is configured or arranged in the hard copy form. If it is reasonably practicable to do so, you should comply with such a preference.
There are more specific provisions in section 11(1A) that relate only to datasets. If you hold the information as a dataset, and the requester has expressed a preference for an electronic copy, then you must provide it in a re-usable form, so far as reasonably practicable. These provisions are explained in detail in our guidance document on Datasets.
A requester may express a preference for a form in a conditional way. For example, “I would like the information in electronic form if it is in a Microsoft Office format, but if not then in hard copy.” The requester cannot specify that they want the information sent to them in a particular way. For example, if the requester asks you to send them the information by recorded delivery, you need not do so.
Under section 11(1)(a) you need not provide a copy of a specific document. This is because section 11(1)(a) refers only to “a copy of the information”. A requester may ask for a copy of a specific document, but you need not provide this as long as you supply all the information in the document that is not exempt. In most cases the easiest way to do this is simply to provide a copy of the document, but in other cases you may provide the same information in other ways. For example, if a request is for the information on a set of completed forms, you do not necessarily have to provide copies of each of the completed forms. In that case, it may be possible to provide a blank form together with the extracted entries from the completed forms. The issue is whether you have met your duty under section 1 of FOIA to provide all the information requested. The duty under section 11(1)(a) regarding a preference for a particular form does not affect this.
Section 11(1)(a) refers to receiving a copy of the information in “another form acceptable to the applicant”, rather than in “permanent form”. This implies that a requester could ask for a verbal response, such as a telephone call or a meeting, rather than a written response. However, this scenario is unlikely to arise often. If the requester does ask for this, we advise you to keep a written record of the conversation and the information you have provided. Then, if the requester complains about your handling of the request, you can demonstrate that you have met your duty under section 1 to provide the information requested.
Under section 11(1)(b), if a requester wants to inspect a record containing the information they have requested, you should allow them to do this, so far as reasonably practicable.
This subsection refers to inspecting “a record containing the information”, not just to inspecting the information. In that case you must provide access to the actual records instead of only information extracted from them.
You need only comply with this preference “so far as reasonably practicable”. In many cases you will be able to allow the requester to inspect the records on your premises during normal business hours. If you are a small authority or do not have your own premises, this may be less practicable.
In decision notice FS50299777, the requester had asked to inspect the accounts of Shotteswell Parish Council for the years 2004/2005 and 2005/2006. The Commissioner considered that this was a preference for a particular means of communication, ie inspection, under section 11(1)(b). The Commissioner found that in the particular circumstances it was not reasonably practicable for the Parish Council to give effect to the requester’s preference:
“… the Commissioner has decided that as the Council does not have its own premises and it is clear that a difficult relationship has developed between itself and the complainant, the Commissioner considers that it was reasonable in the circumstances for the Council to make the information available to the complainant by other means. As already noted, it appears that the complainant had already been provided with hardcopies of the accounts and they had been displayed on the notice board.” (paragraph 59)
The First-tier Tribunal upheld the Commissioner’s decision notice, and struck out the requester’s appeal against it in Mr Bruce Teuten v the Information Commissioner and Shotteswell Parish Council (EA/2010/0159, 5 January 2011).
We consider that the intention behind this provision is that requesters should be able to inspect original records if they wish to do so. However, this may not always be reasonably practicable. In these cases, you may allow the requester to inspect copies of the information instead. Examples of this could be where the original copies are particularly fragile, or where redaction is needed because an exemption applies.
If it is not reasonably practicable to allow inspection, you must still communicate the information to the requester by other means.
Under section 11(1)(c) a requester may express a preference for a digest or summary of the information, rather than a copy or an opportunity to inspect it.
The Oxford English Dictionary defines ‘digest’ as “a digested collection of statements or information; a methodically arranged compendium or summary of literary, historical, legal, scientific, or other written matter”, and ‘summary’ as “containing or comprising the chief points or the sum and substance of a matter”.
We consider that section 11(1)(c) refers to a digest or summary of all the information that has been requested, ie a shortened version. For example, the information requested may be a long report, and a requester may prefer to receive a shorter version that summarises the key points. This does not mean the requester can ask for a version of the information that is tailored to their particular requirements. It also does not mean that you have to produce a bespoke statistical analysis of the requested information.
It is important to distinguish between requests for a summary of the information. The first scenario is where a requester has asked for a pre-existing summary. The second scenario is where the requester has asked for information but wants you to summarise it, instead of providing 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”. In that example, the question is whether an executive summary exists already. This is about whether you hold the specific information that has been requested. You should therefore consider whether you hold the requested information under section 1 of the FOIA, rather than as a section 11 issue.
An example of the second scenario would be where a requester asks you for, “the council’s report on its new healthy living initiative in the form of a summary”. In this case, the requester is expressing a preference for communication by a particular means. Since they want you to summarise the information they are interested in, section 11 applies. FOIA does not require a public authority to create new information to answer a request, so in this case you would not have to write a new summary. The question is whether you can produce a summary by extracting parts of the information that has been requested. In the example above, it may be possible to cut and paste paragraphs from the report to produce a summary. If this is not reasonably practicable, it may be reasonable to provide the full report instead. There is a further discussion of this in the section on ‘Reasonably practicable’ below.
If you are in any doubt as to whether the first or second scenario applies, you should ask the requester whether they are requesting a pre-existing summary, or whether they want you to summarise the information you hold.
Section 11(1)(c) does not enable a requester to obtain a summary of information that would otherwise be exempt. The duties in section 11 only apply to information that can be released under FOIA. If the information requested is exempt from disclosure, then section 11(1)(c) does not require you to produce a ‘non-exempt’ summary of it.
In decision notice FS50290504, the requester asked the Ministry of Justice (MoJ) for a summary of the key points covered in correspondence between the European Commission and the UK government, regarding alleged deficiencies in the UK’s implementation of the Data Protection directive. He had previously asked for the actual correspondence, and this had been withheld under section 27. His new request was intended, as he later said in his appeal to the First-tier Tribunal, “to allow an abbreviated, non-exempt account of the key issues to be disclosed”. The MoJ again withheld the information under section 27.
The Commissioner commented on the requester’s preference for a summary:
“… whilst section 11(1)(c) provides that a public authority should give effect to the preference of a requester as to the means by which they wish the information to be communicated, it does not mean that exemptions cited should relate to anything other than the recorded information held by the public authority. In this case, therefore, the exemptions cited by the public authority relate to the recorded information from which the list and summary would be collated, rather than to information collated into the form requested by the complainant.” (para 16)
In other words, if a requester has expressed a preference for a digest or summary, the public authority must consider whether any exemptions apply to the information requested, not to any summary that they would have to provide to meet the preferred method of communication. If all or part of the information is exempt from disclosure, the requester cannot use section 11(1)(c) to obtain a ‘non-exempt’ summary of the exempt information.
In the subsequent First-tier Tribunal case, the Tribunal agreed with the Commissioner’s approach, although in the end their decision did not depend on this point. (Dr C Pounder v the Information Commissioner and the Ministry of Justice (EA/2011/0116, 27 October 2011), at para 6)
If a requester has asked for a copy of the information, for example a copy of a specific document, you cannot provide a summary of the document instead. This is because a request for a copy of a document is a request for all the information in the document. It would be difficult for you to argue that you had provided all the requested information if you had only provided a summary. The issue here is whether you have met your duty under section 1 to provide the requested information, rather than whether you have met your duties under section 11.
You are required to comply with the requester’s preferred means of communication “so far as reasonably practicable”. Section 11(2) says that in determining what is reasonably practicable, “the public authority may have regard to all the circumstances, including the cost of doing so”. The relevant circumstances 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, and to provide a copy may damage the document.
- The cost of complying with the requester’s preference. You can take into account the cost in assessing whether it is reasonably practicable to comply. However, the work that would be involved in complying with the preference does not count towards the appropriate limit in section 12. This is because the activities you can take into account in calculating whether the limit would be exceeded do not include communicating the information. The activities are listed in the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004.
- 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.
The following example shows how the Commissioner assessed what was reasonably practicable in a particular case.
In decision notice FS50356379, the requester had submitted requests to the governing body of Tidemill Primary School for information from governors’ meetings, and specified that she wanted the information electronically. The governing body offered to make the information available for inspection. The Commissioner found that, as some of the information was held electronically, it would have been reasonably practicable to email that part of it to the requester. The governing body had not complied with section 11 regarding that information.
However, the Commissioner found that the governing body had not breached their section 11 duty regarding other information they held in hard copy. This amounted to over 1,500 A4 pages, and it would have taken several days to scan and email these documents. The Commissioner accepted that:
“…because of the large number of documents that fall within the scope of the complainant’s request, it would not be reasonably practicable for the information to be provided in the requested format. This is particularly the case because of the limited nature of the technological and staffing resources available to the public authority.” (para 27)
Furthermore, although some of that information had originally been produced electronically, it had come from a range of sources, including individual governors’ own PCs and external bodies. The Commissioner accepted that “... it would be difficult and time-consuming to determine which have been held or retained electronically”. (para 28)
Arguments that providing information in the preferred form would allow unauthorised copying, and hence infringement of copyright, are not relevant to whether it is reasonably practicable to comply with the requester’s preference. FOIA provides a right of access to information but not a right the re-use of that information (except in relation to datasets). You can take actions to prevent infringement of your copyright, but this does not affect how information should be communicated under FOIA. This is shown in the following example.
In decision notice FS50217416, the Student Loans Company declined to provide an electronic copy of a training manual because of concerns about copyright and confidentiality. It said it would need to have a legal document drawn up to ensure that the manual was not posted on websites or reproduced without permission, and the cost of doing so meant complying with the preference for an electronic copy was not reasonably practicable.
The Commissioner found that the Company had not met its duty to give effect to the requester’s preference. He considered that “…issues of possible copyright infringement fall outside the scope of the Act and that if any breaches of such legislation were to transpire then the Company should more properly address these elsewhere”. (para 15)
The Company’s concerns about copyright and confidentiality ”do not deal with the question of whether it would be reasonably practicable to provide the information in the preferred format. Therefore the Commissioner considers any steps the Company considers it needs to take in order to allay its concerns in relation to copyright and confidentiality can also not be taken into account.” (para 18)
If you decide it is not reasonably practicable to comply with a requester’s preference, then under section 11(3) you must explain your reasons for this.
Decision notice FS50423888 concerned a request to the Bamford Academy for copies of its staffing policies. The requester had asked for electronic copies. The Academy eventually offered to provide hard copies but did not explain why it could not provide electronic copies.
The Academy explained to the Commissioner, during his investigation, that it was using the local authority’s policies, and it only held these in hard copy; to ask the local authority for electronic copies would incur a further cost.
The Commissioner accepted it was not reasonably practicable for the Academy to provide electronic copies. However, he found the Academy had breached section 11(3) in failing to inform the requester why it could not comply with their preference (para 73 of the decision notice).
If the requester is not happy with your decision as to what is reasonably practicable, they may complain. You should treat this as a request for an internal review of the handling of the request. If the requester is dissatisfied with the outcome of the internal review, they may complain to the Information Commissioner.
Section 11(4) says that, subject to section 11(1), a public authority may communicate the information “by any means which are reasonable in the circumstances”.
If you decide it is not reasonably practicable to comply with the requester’s preference, you may provide the information by any other means that are reasonable in the circumstances. In the example above, it was reasonable for the Bamford Academy to provide the information in hard copy.
This subsection also means that, if the requester has not specified in what form they would like the information, it will generally be reasonable for the form to be dictated by how they have submitted their request. For example, if a requester submits their request by email, it is reasonable to assume they want to receive the information electronically. This could be in the body of the email response or as an attachment, unless the requester specifies otherwise.
We also consider that, if you charge a fee for hard copy information, but not for an electronic copy, then it would be good practice to offer the information in the form that would not attract a charge.
You may charge a fee for communicating the information, under section 9 of FOIA and regulation 6(2)(b) of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 no 3244 (“the Fees Regulations”):
6.—(1) Any fee to be charged under section 9 of the 2000 Act by a public authority to whom a request for information is made is not to exceed the maximum determined by the public authority in accordance with this regulation.
(2) Subject to paragraph (4), the maximum fee is a sum equivalent to the total costs the public authority reasonably expects to incur in relation to the request in–
(a) informing the person making the request whether it holds the information, and
(b) communicating the information to the person making the request.
(3) Costs which may be taken into account by a public authority for the purposes of this regulation include, but are not limited to, the costs of–
(a) complying with any obligation under section 11(1) of the 2000 Act as to the means or form of communicating the information,
(b) reproducing any document containing the information, and
(c) postage and other forms of transmitting the information.
(4) But a public authority may not take into account for the purposes of this regulation any costs which are attributable to the time which persons undertaking activities mentioned in paragraph (2) on behalf of the authority are expected to spend on those activities.
If the requester has asked for a hard copy to be sent by post, you can charge a fee to cover the cost of, for example, photocopying, or purchasing removable media such as a memory stick, CD or DVD, or postage. However, regulation 6(4) means you cannot charge for staff time in communicating the information. Once you have located, retrieved and extracted the information you are going to provide, you cannot charge for the time you take photocopying that information, printing out screen prints, or saving electronic information to removable media.
Further information about fees is available in our guidance document on Fees that may be charged when the cost of compliance does not exceed the appropriate limit.
If the cost of complying with the request (not the cost of complying with the preferred means of communication) would exceed the appropriate limit, you have no duty under section 1(1) of FOIA and you need not communicate the information. However, you may still choose to do so, and you can charge a fee under section 13 of FOIA and regulation 7 of the Fees Regulations. In that case, not only can the fee cover the cost of communicating the information, it can also include the cost of staff time in communicating it. This is calculated at £25 per hour. This is explained further in our guidance document on Fees that may be charged when the cost of compliance exceeds the appropriate limit.
The duty to provide advice and assistance to requesters is set out in section 16 of FOIA and the section 45 Code of Practice. The Code of Practice does not refer specifically to the means of communicating the information. However, if you cannot provide the information by the preferred means, we consider it would be good practice for you to discuss with the requester whether you can provide it in another form that would be acceptable. In any case, under section 11(3), you must notify the applicant why you cannot comply with their preference.
If the information is reasonably accessible to the requester, it may be exempt under section 21. If this is so, you do not have to provide the information in response to the request. There may be a case where the information is already available to the requester under your publication scheme but not in the form in which the requester would prefer to receive it. If so, you need not provide the information in the requester’s preferred form under section 11. This is because, if the information is exempt, you have no duty to communicate it to the requester. However, if it is exempt under section 21, you should explain to the requester how they can access it.
In the First-tier Tribunal case of Liam Costello v the Information Commissioner and Northamptonshire County Council (EA/2011/0291, 3 July 2012), the requester had asked the Council for a copy of the Admission Agreements between the Council and another body when that body was admitted to the Local Government Pension Scheme. The Council did not provide a copy because the information was available for inspection in their offices, in compliance with other legislation.
The Commissioner found, in decision notice FS50368428, that the information was exempt under section 21. The Council therefore did not have a duty under section 11 to comply with the requester’s preference for a copy.
The Tribunal agreed with the Commissioner that it was necessary to consider whether the information was exempt under section 21 before considering section 11 (paragraph 16 of the Tribunal decision).
Although the Tribunal accepted our approach, they found that in this case the Commissioner did not have sufficient evidence to conclude that the information was in fact reasonably accessible to the requester. They concluded that section 21 was not engaged, so they did go on to consider section 11.
A requester might ask for information to be translated into a particular language, but you have no duty to do this under section 11. This is because the preferences set out in section 11(1) of FOIA do not include translations. However, you may have a statutory obligation to translate the information 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 guidance relates only to FOIA. If the information is environmental, you will instead need to consider your duties under the Environmental Information Regulations (EIR). Further information on this is available in our guidance document on Form and format of information (regulation 6 EIR).
For further information about this topic and request handling under the two different pieces of legislation, see:
You may also wish to consider the guidance on: