AI and FOI: Tribunal clarifies public authorities’ obligations

The recent case Ed Surridge vs Information Commissioner and the Cabinet Office [2024] UKFTT 00597 (GRC) has clarified that the Freedom of Information Act 2000 (FOIA) does not mandate the use of AI in the handling of FOI requests, even if it could theoretically speed up the process. This decision will come as welcome news to public authorities who do not yet have AI tools available to them – FOIA does not require such authorities to use AI where it does not already do so.

Key takeaways

The Surridge case confirms:

• The cost limit (section 12 of FOIA) is to be assessed based on how the public authority actually holds the information – not how the information could or should have been kept
• FOIA does not oblige public authorities to use AI solutions to speed up their processes
• Even if it would be theoretically possible to use an AI tool to speed up the search process, if that solution is not actually available to the public authority then it is not relevant for the cost assessment
• The Court gave little weight to evidence from the requester that AI-suggested search paths (requested via AI chatbots) indicated that searches could be conducted more quickly – the accuracy and methodology of such chatbot evidence cannot be verified, in contrast to expert witness evidence.

Case summary

An individual, Mr Ed Surridge (the Appellant), made a request under the FOIA, relating to wildlife preparedness for the safeguarding of people and their homes near woodland. The Cabinet Office estimated the scope of the request would involve reviewing 3,565 emails and would take approximately 43 hours. As such, the Cabinet Office refused the request as it would exceed the appropriate limit of £600 or 24 hours of work under section 12(1) FOIA and the Fees Regulations.

The Appellant appealed to the Commissioner, and the Commissioner issued a Decision Notice which upheld the Cabinet Office's decision. The appellant then appealed to the First-tier Tribunal (General Regulatory Chamber) (FTT), challenging the adequacy of the searches conducted by the Cabinet Office, and suggesting that AI tools could be used to locate the information more efficiently. The Cabinet Office applied for a strike out on the basis that the appeal has no reasonable prospect of success.

Held

The Tribunal struck out the appeal, saying the Commissioner had not erred in law in its Decision Notice. The Tribunal assessed the applicability of section 12 FOIA based on the processes actually used and adopted by the Cabinet Office rather than how the information should have been stored or searched. The Tribunal also accepted that the Cabinet Office did not have the AI tools available to undertake the search that the Appellant had in mind. The Tribunal gave little weight to the evidence provided by the Appellant which relied upon AI chatbot searches, saying that AI tools cannot provide an explanation for their reasoning or methodology or justify the sources their relied upon, unlike an expert witness.

Practical guidance

The Courts have not yet considered a case where a public authority does use AI tools in its everyday practice, so we are yet to have definitive guidance on how such tools may be expected to be used when handling complex FOI requests.

However, we think it is reasonable to assume that where AI tools become more widely used across an organisation to improve the efficiency of its operations, the benefits of those tools are likely to be expected to be put to similar use when conducting reasonable and proper searches in response to FOI requests. That position will inevitably depend on the particular technology used, and its scope in terms of the information it processes and the degree of transparency in its methodology. In addition, careful consideration will need to be given to guard against other issues, such as inadvertent discrimination from using AI tools, or the risk of hallucinations, and the AI essentially fabricating documents/pieces of information. This will require robust human oversight to identify possible issues. The potential implications for the handling of FOIA requests should therefore be carefully considered by organisations when permitting and expanding the use of such AI tools.

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This article was also authored by Leila Snape, Trainee Solicitor at Womble Bond Dickinson.