Upper Tribunal rules on complying “promptly” with an FOI request

The Upper Tribunal has ruled on what “promptly” means in the FOI Act. The answer’s no surprise, but it’s helpful to have binding authority

The Freedom of Information Act 2000 (FOIA) demands that a public authority must (subject to the application of exemptions) provide information to someone who requests it within twenty working days. But it goes a bit further than that, it says (at section 10(1))

a public authority must comply…promptly and in any event not later than the twentieth working day following the date of receipt

But what does “promptly” mean in this context? This issue has recently been considered by the Upper Tribunal, in John v ICO & Ofsted 2014 UKUT 444 AAC.Matters before the Information Commissioner (IC) and the First-tier Tribunal (FTT) had turned on when the initial request for information had been made and responded to. The IC held that Ofsted had failed to respond within twenty working days, and Ofsted appealed this. Mr John argued before the FTT that although the IC had found in his favour to the extent that it held that Ofsted had failed to respond within twenty working days, it had failed to deal with the issue of whether Ofsted had responded promptly. The FTT found in Ofsted’s favour, but did not, Upper Tribunal Judge Jacobs observed, deal with Mr John’s argument on promptness. That was an error of law, which Judge Jacobs was able to remedy by considering the issue himself.

“Promptly” he observed, has a range of dictionary meanings, some of which relate more to attitude (“willingly”, or “unhesitatingly”) and others more to time (“immediate”, or “without delay”). The context of section 10(1) of FOIA “is concerned with time rather than attitude, although the latter can have an impact on the former”. It is clear though that “promptly” does not mean, in the FOIA context, “immediately” (that, said Judge Jacobs, would be “unattainable”) but is more akin to “without delay”:

There are three factors that control the time that a public authority needs to respond. First, there are the resources available to deal with requests. This requires a balance between FOIA applications and the core business of the authority. Second, it may take time to discover whether the authority holds the information requested and, if it does, to extract it and present it in the appropriate form. Third, it may take time to be sure that the information gathered is complete. Time spent doing so, is not time wasted.

What is particularly interesting is that Judge Jacobs shows a good understanding of what the process for dealing with FOIA requests might be within Ofsted, and, by extension, other public authorities:

A FOIA request would have to be registered and passed to the appropriate team. That team would then have to undertake the necessary research to discover whether Ofsted held the information requested or was able to extract it from information held. The answer then had to be composed and approved before it was issued.

In the instant case all this had been done within twenty working days:

I regard that as prompt within the meaning and intendment of the legislation. Mr John has used too demanding a definition of prompt and holds an unrealistic expectation of what a public authority can achieve and is required to achieve in order to comply with section 10(1).

This does not mean, however, that it might not be appropriate in some cases to enquire into how long an authority took to comply.

The Upper Tribunal’s opinion accords with the approach taken in 2009 by the FTT, when it held that

The plain meaning of the language of the statute is that requests should be responded to sooner than the 20 working days deadline, if it is reasonably practicable to do so. (Gradwick v IC & Cabinet Office EA/2010/0030)

It also accords with the IC’s approach in guidance and decision notices under FOIA, and its approach under the Environmental Information Regulations 2004 (where the requirement is that “information shall be made available…as soon as possible and no later than 20 working days”).

Most FOI officers will greet this judgment as a sensible and not unexpected one, which acknowledges the administrative procedures that are involved in dealing with FOIA requests. Nonetheless, as a binding judgment of an appellate court, it will be helpful for them to refer to it when faced with a requester demanding a response quicker than is practicable.

Appeals and Cross Appeals

A further issue determined by the Upper Tribunal concerned what should happen if both parties to a decision notice disagree with some or all of its findings and want to appeal, or at least raise grounds of appeal: must there be an appeal and cross-appeal, or can the respondent party raise issues in an appeal by the other party? Judge Jacobs ruled, in a comprehensive a complex analysis that merits a separate blog post (maybe on Panopticon?), that “although cross-appeals are permissible, they are not necessary”