Litigants are increasingly using Freedom of Information Act (FOIA) requests as a litigation tactic for early disclosure in disputes against public authorities or where a public authority is a third party. A FOIA request is cheap to make and can exert significant pressure, often leading to early settlement of a dispute or the avoidance of incurring the cost of a court issue fee.
A recent decision of a FOIA case by the First Tier Tribunal (Derek Moss v The Information Commissioner) is a good reminder of two things:
- focussed, narrow requests are the most likely to lead to disclosure of documents, and
- public authorities are required when refusing disclosure on the grounds of cost to offer advice as to how such requests could be reformatted in order to enable some disclosure to take place.
What is a FOIA request?
FOIA entitles any person to request information from any public authority in England, Wales or Northern Ireland. Public authorities include government departments, local authorities, the NHS, state schools and police forces. Information includes hard copy and electronic documents, letters, emails, photographs, and sound or video recordings.
Unless one of the exemptions applies, the public authority is required to provide the requested information within 20 working days of a request. In the context of a protracted dispute, 20 working days is relatively short, making a FOIA request a valid tactic in disputes where early disclosure may be helpful.
Why should I make a narrow request?
It is always tempting to make a very wide-ranging request under FOIA, in an attempt to ensure that it doesn’t miss anything. An example of such a request was made as part of the request in Derek Moss v IC:
“Any information held, including e-mails and other electronic records, printed or handwritten notes, relating to the selection and appointment of Renaisi as consultants for the regeneration programme and the work they have been, or are expected to be, instructed to do.”
One of the most frequently used exemptions to disclosure by public authorities, however, is Section 12. This applies where the cost of providing the information requested exceeds the statutory limit (defined as either 24 or 18 hours of staff time depending on the type of public authority). As a result, wide requests are relatively easy for a public authority to refuse on the basis that the search for documents will take too long (as it did in the Derek Moss case).
How can I narrow my request?
We recommend you consider exactly what it is you want to see, and wherever possible only ask for that. Examples of more appropriate requests in this particular case may have been:
“Sufficient information to explain the selection and appointment of Renaisi as consultants for the regeneration programme and the work they have been, or are expected to be, instructed to do”; and
“Printed or handwritten notes made at the evaluation meeting carried out in or around March 2016, relating to the selection and appointment of Renaisi as consultants for the regeneration programme”.
It is possible that the response to a narrow request will not be helpful to your dispute. It may be that the public authority doesn’t hold the information requested, or that the information provided is not relevant or useful. If this is the case, though, you could always make another targeted, narrow request.
What can I do if my request is refused on the grounds of cost?
Following case law, public authorities are required under Section 16 of FOIA to suggest obvious alternative formulations of the request that will enable them to supply the core of the information sought within the cost limits. In Derek Moss v The IC, the Council failed to do this, and as a result it has now been ordered to “provide advice and assistance to enable a reformulation of the request“.
If your request is refused on the grounds of cost, you should write to the public authority and remind it of its obligation to provide this assistance, thus putting the burden on them to come up with a possible solution.
Are there any other methods of getting information that might help my dispute?
FOIA does not give people the right to access their own personal data. Such a request should be made under the Data Protection Act, in the form of a Subject Access Request. We discuss the use of SARs as a litigation tactic here.
Environmental information is not available under FOIA, but is available in a similar way to FOIA under the Environmental Information Regulations (EIR). As such, the discussion above about FOIA requests extends broadly to requests under the EIR, as it has a similar (but not identical) exemption in relation to the cost of complying with requests.
With an increased awareness generally of rights of access to personal data and publically held information, using FOIA, EIR or Subject Access Requests is increasingly being seen as a legitimate litigation tactic. Where a dispute arises and one of these avenues is available, it is certainly worth exploring as the information elicited could fundamentally change the shape of the litigation.