New bitesize tools for Freedom of Information practitioners

The Information Commissioner's Office (ICO) has unveiled a series of bitesize tools aimed at supporting Freedom of Information practitioners when deciding whether to apply certain exemptions to withhold information requested under the Freedom of Information Act (FOIA).

In this article, we highlight the four new tools that FOIA officers should consider using, to help apply the relevant exemptions with greater confidence.

You may also be interested in our other article in this series which draws attention to an existing and – we think – very useful but often forgotten tool already provided by the ICO: the section 36 record of the qualified person form. You can read that article here.

The new tools – which exemptions do they cover?

The latest tools to be released focus on the following four exemptions:

• Section 12 – appropriate cost limit
• Section 22 – information intended for future publication
• Sections 30 and 31 - investigations and law enforcement
• Section 41 – information obtained in confidence.

The ICO says these new tools will complement – rather than add extra layers to – the existing detailed guidance it already makes available to public authorities in handling FOIA requests.

Each tool works in a different way but aims to reduce the inappropriate use of these exemptions, which – according to the ICO's own research into complaints it has handled - are exemptions that the ICO says public authorities need help in correctly applying.

Section 12 - cost estimate template worksheet

For us, the standout new tool is the cost estimate worksheet. This downloadable template spreadsheet in Excel format helps public authorities to estimate the cost of complying with a request for the purpose of deciding whether doing so would exceed the 'appropriate limit' and therefore whether the Section 12(1) cost exemption can be applied.

It is well established that the cost estimate has to be "sensible, realistic and supported by cogent evidence…" - Randall v Information Commissioner and Medicines and Healthcare Products Regulatory Agency (EA/2007/0004, 30 October 2007). The new Worksheet provides a practical way of helping practitioners to gather and then assess the various activities, time and other costs estimated to be required to comply with the request – something we often see public authorities struggling to do at the level of detail required.

The Worksheet provides a simple form to fill in, with basic guidance on the types of permitted activities and the level of detail to go into. There are two Worksheets to choose from depending on type of public authority you are (one sheet for central government, legislative bodies and the armed forces whose appropriate limit is £450, and another sheet for other public authorities whose limit is £600). Each Worksheet uses inbuilt formulas to calculate the total estimated cost, which offers a simple yes/no conclusion as to whether or not the relevant cost threshold is exceeded. If the exemption is then applied, the Worksheet can be saved by the public authority and serve as a useful record of the decision, in case later needed at internal review or ICO investigation to evidence its proper application.

By offering a clear and structured approach, along with some helpful drafting guidance, we can see this worksheet being a particularly useful tool for an FOIA practitioner who needs to elicit relevant and detailed activity and time breakdowns from internal colleagues who are the subject matter specialists of the requested information but are less familiar with the FOIA requirements.

Section 22 - future publication exemption tool

The future publication exemption tool is in the form of an interactive quiz on the ICO's website to help authorities decide whether it is appropriate to use the Section 22 exemption in any given case. Section 22 applies to information that the public authority has a settled intention to disclose in the future and which it would be reasonable to wait until that future date to disclose.

The tool has its limits, as it does not cover every issue that may be relevant to a public authority's consideration of this exemption. For instance, it does not go into detail around what constitutes a settled intention. But it does cover the key considerations, is quick to use, and provides some useful examples to illustrate the scenarios that may lead a user to choose either answer. It also provides clear signposts to the ICO's more detailed Section 22 guidance.

As a 'first step' in terms of ruling in or out the use of this exemption, it does look to be a useful tool in a practitioner's arsenal.

Section 30 - investigations and Section 31 law enforcement tables

This tool comes in the form of a table comparing the two exemptions, both of which may need to be considered depending on the public authority and the information requested. It can therefore be used as a starting point to identify which of the two may be appropriate in a given case, and to see at a glance how the exemption should be applied.

It is fairly high level and does not go into the detail of the multiple exemptions that exist within each of Section 30 and Section 31 (and which must be specified in a refusal notice), so this tool would need to be read alongside the detailed guidance and associated caselaw.

The ICO has indicated it intends to add a second table which will provide further guidance on one of those multiple exemptions, namely the Section 31(1)(g) exemption which relates to prejudice to a number of specified functions of a public authority.

Section 41 - in confidence exemption tool

The Section 41 tool aims to help practitioners correctly apply the exemption for information provided to a public authority in confidence, and to clearly explain their refusal to requesters.

It is in the form of a 'jargon buster' – effectively a single guidance page setting out the legal tests for the exemption to apply, along with a table explaining the various related words or phrases and "what this actually means in the section 41 context".

This could serve as a fairly useful crib sheet to break down the various components of this somewhat complex exemption. However we have our doubts as to whether this tool will help authorities to give clearer explanations of a refusal to requesters. It doesn't provide a clear step-by-step approach to the legal tests (for instance not clearly articulating the relevance and approach to the public interest defence aspect) and appears to rely quite heavily on practitioners having a good existing understanding of how to apply the exemption.

In our view, public authorities are best advised to read this in conjunction with the more detailed guidance, and to review recent ICO decisions concerning section 41 which tend to take a clear and methodical approach to explaining whether or not the exemption is met.

Conclusion

Overall these tools come as very welcome practical guidance for all FOIA practitioners; particularly for smaller public authorities or those not so familiar with using the featured exemptions.

Our experienced team of FOIA experts can assist public authorities and organisations of all sizes who are dealing with or making FOIA requests, by providing training to staff, drafting appropriate contractual clauses and assisting with handling complex requests, complaints or legal challenges. To find out more, please contact a member of our team using the details linked above.