Thursday, December 17, 2009

Tribunal clarifies redaction costs

The Information Tribunal has dispelled any remaining doubt over whether the cost of redacting exempt information can be taken into account by public authorities when estimating the costs of complying with a request.

This issue had been considered by the Tribunal in Jenkins v IC and Defra (EA/2006/0067), where it expressed the view that the time cost of redacting exempt information could not be counted for the purposes of the Fees Regulations. However, the Jenkins case was determined on the basis of other exemptions and, in any case, the Tribunal said that the issue was not free from doubt.

The Jenkins case was approved of in DBERR v ICO and FoE (EA/2007/0072), but DBERR did not rely on section 12 and and the Tribunal heard no submissions on it. Chief Constable of South Yorkshire Police and The Information Commissioner (EA/2009/0029) was therefore the first case where the time cost of redactions was the substantive issue and the Tribunal considered it in detail.

The Tribunal concluded:
Section 12 is a good administration constraint. It is a preliminary exercise limited to estimating the costs of the initial mechanical processing of the request for information. Insofar as sequencing is important to the arguments made in this appeal, making the cost estimate under section 12 (to scope the work entailed in order to weed out voluminous and excessively costly requests for information), precedes the separate and more focussed task of responding to those requests for information that fall within the cost limit.
Second, the common thread running through the Allowable Tasks is that they are of an administrative nature. A public authority which is in receipt of a request has to determine whether it holds the information, it has to locate the information and then to retrieve or extract it. The relative ease with which a public authority can make an advance estimate of the potential costs involved in carrying out these non-judgemental tasks, contrasts markedly with the difficulty that is likely to be involved in estimating how long it would take to decide whether or not any of the exemptions in sections 21 to 44 of the Act apply to some or all of the information requested, and whether the exempt material could be edited so that some part of the information requested could be released.
It is also clear from the time limits in the Fees Regulations (18 hours and 24 hours depending on the public authority), that if it covered the time cost of redactions, in addition to the tasks listed in regulation 4(3), many, if not most, requests involving exemptions, particularly multiple exemptions, could be refused. This too, in our view, could not have been the legislative intent.

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