Monday, July 23, 2007

Tribunal ruling on when information is "held"

The following note on a recent Information Tribunal ruling has been submitted by Jim Matthew.

A very interesting decision notice was issued by the Information Tribunal in the case of
Mr M L Johnson v Information Commissioner and Ministry of Justice (DCA as was) on 13 July 2007 .

Although the decision went largely unremarked and found in favour of the Information Commissioner and MoJ/DCA, it does set a very valuable precedent.

In 2005 MoJ came up with the concept of “meta-requests”. Meta-requests related to information which had only been created in dealing with a prior request (and not for any other reason) or information which could only be produced by manipulating existing raw data.

This meant that requests for a wide variety of information potentially would be classed as “meta-requests” and refused, including;
  • requests for information relating to an applicant’s previous request (MoJ suggested relying on section 36, but any clearly unreasonable attempts to obtain information about withheld information might also be dealt with as vexatious);
  • requests for statistical information, ordered or summarised in any way that was not already regularly produced by the public authority (e.g. ranked lists of consultants or contractors, summary information from the DVLA database (“how many Mark 1 Ford Escorts are still on the road?”) etc).
The Campaign for Freedom of Information were one of the first to suffer from the introduction of the “meta-request” concept, when in late 2005 they requested information relating to internal reviews under the FOI Act from a number of large public authorities. Whilst MoJ were arguing that this was “meta-information” and wasn't held (or at least needed to be manipulated before the request could be answered), many departments claimed that in order to monitor their compliance with the FOI Act, they did hold the information (and could produce it in an up-to-date form at the press of a few buttons). The situation ended up with a three-way split between those who simply ignored MoJ's advice (and provided the requested information), those who blindly followed it (and refused the information) and those who had argued and eventually secured a compromise (answering the request fully (if very late), but pointing out that there was no requirement to have done so under the FOI Act – thus neatly avoiding the fact that trying to argue with the Clearing House took them well over the 20 day response time, without any public interest test argument to support an extension!).

MoJ have yet to be tested on the “information about my previous request” issue, but, the Information Tribunal have now clarified what levels of data-manipulation should be conducted and on what grounds requests requiring such manipulation could be refused.

Mr Johnson asked MoJ for summary information relating to the numbers of cases allocated to each High Court Queen's Bench Master by year since 2001 and the number of cases which each Master had “struck out”. MoJ had genuine difficulty in producing this information, which could only be obtained by manually examining some 17,000 files (see the IT decision for full details), but chose to rely on the “information not held” line to refuse the request. In considering the appeal, the Information Tribunal made several important decisions:
1) The “information not held” line can only be employed if manipulation of the raw data to produce the requested information would require levels of skill and judgement (not relevant in this instance, since all that was required was a member of staff to look through the paper files (and know that there were 3 or 4 possible terms that might be used to replace “Strike Out”, but which meant the same thing)).

2) If skill and judgement are not required, then the “information not held” line can not be employed and another reason would need to be found for refusal. In this case, the Tribunal accepted that collating the requested information would have significantly exceeded the cost ceiling.
The importance of this decision cannot be underestimated. It has knocked over one of MoJ's artificial constructs for refusing to provide requested information, hopefully more (including MOJ’s “working assumptions”) will follow.

Jim Matthew

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