Out-Law News 3 min. read

Requests for FOI disclosures in particular formats must generally be adhered to, rules Court of Appeal

Public bodies must generally adhere to individuals' requests for information to be provided in a specific electronic format under freedom of information (FOI) laws, the Court of Appeal in London has ruled.

Lord Justices Longmore and Underhill and Sir David Keene ruled that public bodies should meet eligible requests for information to be disclosed in a specific format unless it is not "reasonably practicable" for them to do so (22-page / 413KB PDF).

In practice, this means that public bodies can refuse requests for information to be disclosed in a particular format where they do not store that information in the format requested or licensing restrictions apply but otherwise generally must meet a request to provide information in a specific format, the judges said.

The Court of Appeal was ruling in a case that concerns a request member of the public Nick Innes had made to Buckinghamshire County Council for information about school exams in the area to be disclosed in the format of Microsoft Excel spreadsheet files.

The Council had provided Innes with the information he had requested but it was disclosed in PDF documents and not Excel files as requested, meaning the data "could not be manipulated or processed in any of the ways permitted by the standard Excel software", the judgment said.

Innes complained to the Information Commissioner that, in not meeting his format request, the Council had breached its duties under section 11 of the Freedom of Information Act (FOIA). However, the Information Commissioner and two subsequent information rights tribunals ruled that the Council had not acted in breach of its FOIA duties when it had not provided the data in Innes' preferred format.

Under section 11 of FOIA, public bodies are required to adhere to eligible requests for the disclosure of information to be communicated to them in "any one or more" of the ways stipulated under the Act "so far as reasonably practicable" to do so.

The Act lists the right of individuals to request a copy of the disclosable information "in permanent form or in another form", be given "a reasonable opportunity to inspect a record containing the information" and be provided with "a digest or summary of the information in permanent form or in another form" acceptable to them, subject to the qualification that it is 'reasonably practicable' for the public authority to meet that request.

Innes claimed that his request for the data to be disclosed as Excel files was "a request for it to be provided in a particular 'form'" and that it therefore fell to the Buckinghamshire County Council to consider this request under section 11 of FOIA, according to the ruling.

Innes said his argument was supported by the overarching aims of the legislation to make information "as accessible as possible to members of the public" and that it did not create additional burdens for public bodies since the qualification that they need only adhere to specific format requests where it is 'reasonably practicable' still applied.

However, the Information Commissioner argued that the right of individuals to choose the 'form' that disclosable information be provided to them in was limited to giving individuals a choice only between requesting information in either hard copy or as an electronic copy. The watchdog claimed that "the particular software format in which information was supplied was not an aspect of its form".

In his leading judgment, Lord Justice Underhill admitted that a strict reading of FOIA does not give individuals a "right to choose … the form of permanent form in which the information is provided". However, he concluded that "an applicant’s right to choose to have information provided to him in electronic form extends to a right to choose the software format in which it is embodied".

In reaching his decision, Lord Justice Underhill considered how UK law makers had intended section 11 of FOIA to be read.

"It seems to me a natural use of English to describe the software format in which a copy (or digest) of the requested information is provided as an aspect of its 'form," Lord Justice Underhill said. "Once it is accepted that an applicant can require provision of information in electronic form it seems to me only a small step to hold that he can also choose the format in which that electronic information is provided: the one naturally follows from the other."

The judge said his determination "fits …with the apparent philosophy of the Act".

"Citizens are given the right of access to public information at least in part so that they can make use of such information," Lord Justice Underhill said. "A construction of the Act which makes it easier for them to do so effectively is to be preferred. Conversely, it is hard to see any policy objection to a construction which enables an applicant to specify a preferred software."

"If an authority is asked to provide information in a software format in which it is not already held (or into which it cannot readily be converted) it would be entitled to seek to rely on the reasonable practicability qualification; I doubt if it was part of the purpose of the Act to oblige authorities to input information into a spreadsheet when it does not already exist in that form (though that was not of course the case here). The authority could likewise invoke the reasonable practicability qualification if the provision of information in the way sought would be inconsistent with the licence governing its use of particular software," he said.

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