To have and to hold: new guidance from the ICO on what constitutes 'holding' information under the Freedom of Information Act 2000

In many cases, it will be simple for a public authority to locate information requested under the Freedom of Information Act 2000 (FOIA). However there are circumstances where the authority has difficulty in determining whether it actually 'holds' the requested information. In response to these concerns, the Information Commissioner's Office (ICO) has published new guidance to assist public authorities with this process. The guidance covers:

Extracting Information

The ICO states that a public authority will 'hold' information if it holds the building blocks required to generate it and no complex judgement is required to produce it. For example, a public authority may receive a request for information in a list or a schedule; if the authority does not hold the information in this particular format but does possess the requested data, it must extract and organise this data into the requested form. The extraction of existing data and presenting it as a schedule is not the creation of new information. The information is therefore 'held' by the authority.

The level of skill and judgement required to answer a request will determine whether information is 'held'. Public authorities may for example be required to manipulate the relevant building blocks of information by applying mathematical calculations to the data. Generally, if answering a request involves exercising sophisticated judgement, the information will not be 'held'. Correspondingly if only a reasonable level of judgement is required to identify the relevant building blocks, or manipulate those blocks, the information will be 'held'.

Deleted information

Public authorities are entitled to delete information they no longer require. If information was still said to be 'held' when it had been intentionally deleted in line with the public authority’s disposal schedule, it would undermine the principle of good records management. With this in mind it follows that:

Extent of the Search

In the event that a Commissioner receives a complaint that a public authority has not provided any or all of the requested information, the Commissioner will decide on the balance of probabilities whether the information was 'held' by the authority. In doing so he will assess:

Costs of dealing with a request

The cost of determining whether information is 'held' and providing it if it is, has a bearing on a public authority’s obligation to respond to a request. Under section 12 of FOIA, a public authority is not obliged to comply with a request if the cost of certain activities, including locating, retrieving and extracting the information would exceed the appropriate limit. For detailed ICO Guidance on Section 12 click here.

Comment

The Guidance provides valuable clarification on FOIA obligations at a time when the number of FOIA requests received by local authorities is increasing. It will allow public authorities to become more confident in determining whether they hold the information requested, making them more efficient in handling FOIA requests. However, the guidance is only a recommended approach – it must be borne in mind that every case is individual and will be judged on its own unique circumstances. Whilst this guidance has been produced by the English ICO and relates to English legislation, it will also act as a useful point of interest for Scottish public authorities who receive requests under the Freedom of Information (Scotland) Act 2002 until such time as an equivalent Scottish guidance is produced.

To see the full guidance click here.