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ICO lo Consideration of the identity or
motives of the applicant.
Freedom of Information Act
Environmental Information Regulations
Contents
Introduction ............................................................................. 2
Overview ................................................................................. 2
Circumstances where an authority can take identity into account ... 4
Determining whether the request is valid (FOIA only) ................ 4
Aggregation of costs under section 12 (FOIA only) ..................... 5
Information comprising the requester’s own personal data (FOIA
and EIR) ............................................................................... 5
Information accessible by other means (FOIA and EIR) .............. 6
Repeated requests (FOIA)....................................................... 7
Circumstances under which an authority may take the requester’s
identity and motivation into account. .......................................... 7
Vexatious/manifestly unreasonable requests ............................. 7
Enquiring about the reasons behind a request to help identify what
information is required .............................................................. 8
Applying exemptions with a prejudice, adverse effect or other harm
based test ............................................................................... 8
More information .................................................................... 11
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Introduction
1. The Freedom of Information Act 2000 (FOIA) gives rights of
public access to information held by public authorities.
2. The Environmental information Regulations (EIR) give rights
of public access to environmental information held by public
authorities.
3. Overviews of the main provisions of FOIA and the EIR can be
found in
The Guide to Freedom of Information and
The Guide
to the Environmental Information Regulations.
4. This is part of a series of guidance, which goes into more
detail than the Guides, to help public authorities to fully
understand their obligations and promote good practice.
5. This guidance explains the principle that requests for
information should generally be considered without reference
to the identity of the requester or the motives behind the
request.
Overview
In most cases, authorities should consider FOI and EIR requests
without reference to the identity or motives of the requester.
Their focus should be on whether the information is suitable for
disclosure into the public domain, rather than the effects of
providing the information to the individual requester.
Anyone can make a request for information, regardless of who
they are or where they live.
There is no requirement for the requester to explain why they
need the information or to provide justification for their request.
An authority may however take the requester’s identity and
motives into account in some limited circumstances.
The requester’s identity may be taken into account when;
o the authority has reason to believe that the requester
hasn’t provided their real name;
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o determining whether the cost of two or more requests can
be aggregated under section 12 of FOIA;
o the requested information contains the requester’s own
personal data;
o assessing whether the information is reasonably accessible
to the requester by other means; and
o assessing whether the request is a repeated request.
The requester’s identity and motive may be taken into account
when the authority is considering refusing a request as vexatious
or manifestly unreasonable.
If the request is ambiguous or unclear and knowing the purpose
behind it would help the authority to identify and locate the
requested information, then a public authority can ask the
requester why they want the information. They should
remember, however, that requesters do not have to reveal the
reason behind their request if they don’t want to.
If the authority intends to apply a prejudice or adverse effect
based exemption or exception, and is concerned about how the
requester will use the information, then it should apply the
prejudice or adverse effect test in the normal way. This means
that it should consider whether releasing the information
into the
public domain would or would be likely to prejudice the interests
protected by the exemption or exception.
6. In most cases, public authorities should consider freedom of
information requests and requests for environmental
information without reference to the identity or motives of the
requester.
7. Authorities should view disclosure as a release of information
into the public domain. This means that they must consider
the consequences of disclosure to the world at large, and not
just the impact of providing the material to the requester.
8. It follows that the key question an authority must ask itself
when deciding how to respond is whether the information is
suitable for disclosure to anyone and everyone.
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9. This principle was endorsed by the Information Tribunal in
S v
Information Commissioner and the General Register Office
(EA2006/0030, 9 May 2007) when it stated;
‘We wish to emphasise at this point that the Freedom of
Information Act is applicant and motive blind. A disclosure
under FOIA, is a disclosure to the public [ie the world at
large]. In dealing with a Freedom of Information request there
is no provision for the public authority to look at from whom
the application has come, the merits of the application or the
purpose for which it is to be used.’ (Para 80)
10. In most cases, no matter who the requester is, whether a
journalist, researcher, MP, business or a member of the
public, they should receive the same response, in terms of
substantive outcome, as anyone else making an identical
request.
11. So for example, a school teacher who asks for ‘documents
relating to alleged financial irregularities at your organisation’
should receive identical material to an MP who requests the
exact same information.
12. However, as with many general principles, there are
exceptions to the rule. In some situations, it will be
appropriate to take the identity or motive of the applicant into
consideration. These are covered in more detail below.
Circumstances where an authority can take identity into
account
Determining whether the request is valid (FOIA only)
13. Section 8(1)(b) of the FOIA requires that a request for
information must include the real name of the requester.
14. If the requester;
fails to provide a name;
can’t be identified from the name provided (for example
because they have only used their first name or
initials); or,
is using an obvious pseudonym,
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then their request won’t meet the requirements of section
8(1)(b) and will technically be invalid.
15. It will therefore be permissible for a public authority to
enquire about the identity of a requester if it has reason to
believe that they haven’t provided their real name. Before
doing this however we would recommend that a public
authority refers to our guidan
ce Recognising a request made
under the Freedom of Information Act (section 8).
16. There is no equivalent to section 8 in the EIR. This means that
a request made under the EIR will be valid irrespective of
whether the requester provides their real name.
Aggregation of costs under section 12 (FOIA only)
17. Under section 12(1) of the FOIA, a public authority can refuse
to comply with a request for information if the cost of
compliance would exceed a set limit (the ‘appropriate limit’).
18. When calculating the costs, the authority can combine the
costs of any related requests received within a period of 60
consecutive days from;
the same person; or
people who appear to be acting in concert or in
pursuance of a campaign.
19. Therefore, in some cases the requester’s identity will be a
relevant consideration in determining whether the appropriate
limit has been exceeded.
20. More detailed information on aggregating the cost of requests
can be found in our guidance
Requests where the cost of
compliance with a request exceeds the appropriate limit.
Information comprising the requester’s own personal
data (FOIA and EIR)
21. If the information caught by a freedom of information request
contains the personal data of the requester, then that
information will be exempt under Section 40(1), and should
be dealt with as a ‘subject access request’ (SAR) under the
Data Protection Act (DPA).
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22. Regulation 5(3) of the EIR states that the right to make
information available on request doesn’t apply to the
requester’s own personal data. Where the information caught
by a request for environmental information contains the
requester’s own personal data then it should also be dealt
with as a SAR under the DPA.
23. In order to consider whether these provisions apply a public
authority will need to take into account the identity of the
requester. The section 40(1) exemption and regulation 5(3)
are covered in more detail in our guidan
ce Personal
information (section 40 and Regulation 13).
24. For further information on SARs, please see ou
r Subject
Access Code of Practice.
Information accessible by other means (FOIA and EIR)
25. Section 21 of FOIA provides an exemption for information that
is reasonably accessible to the requester by other means.
26. The authority may need to take the requester’s identity into
account when determining if section 21 applies. This is
because in some cases, the question of accessibility will
depend upon the requester’s individual circumstances.
Indeed, information that is reasonably accessible to one
person won’t necessarily be accessible to another.
27. More detailed information on section 21 can be found in our
guidance
Information reasonably accessible to the applicant
by other means.
28. Under regulation 6 of the EIR, the requester has the right to
ask that information is made available to them in a particular
form or format when they make their initial request.
29. However, if the information is already publicly available and
easily accessible to the applicant in another form or format,
the authority doesn’t have to provide the information in the
way the requester has specified.
30. As with section 21 of FOIA, the requester’s circumstances will
sometimes be a relevant factor in deciding whether the
information is easily accessible to them.
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31. The issue of accessibility to the applicant is covered in more
detail in our guidan
ce Form and format of information
(regulation 6).
Repeated requests (FOIA)
32. Section 14(2) of the FOIA stipulates that an authority can
refuse a request that is identical, or substantially similar to a
previous request submitted by the same individual.
33. The authority will therefore need to be clear about the identity
of the requester in order to determine whether section 14(2)
is engaged.
34. Further information on the application of section 14(2) can be
found in our guidan
ce Dealing with repeat requests.
Circumstances under which an authority may take the
requester’s identity and motivation into account.
Vexatious/manifestly unreasonable requests
35. An authority may take the requester’s identity and motivation
for making a request into account when determining whether
a request is vexatious (or manifestly unreasonable if the
request falls under the EIRs).
36. The requester’s identity and motives may be relevant when
considering the context in which the request is made, the
burden which it might impose, and the value of the request.
37. The Upper Tribunal considered the relevance of the
requester’s motives in the case of
Information Commissioner
vs Devon County Council & Dransfield [2012] UKUT 440
(AAC), (28 January 2013) when it stated;
‘…the motive of the requester may well be a relevant and
indeed significant factor in assessing whether the request
itself is vexatious…the proper application of section 14 cannot
side-step the question of the underlying rationale or
justification for the request…’ (Para 34)
38. For more detail on how to decide whether a request is
vexatious or manifestly unreasonable please see our
guidance;
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Dealing with vexatious requests.
Regulation 12(4)(b): Manifestly unreasonable requests.
Enquiring about the reasons behind a request to help
identify what information is required
39. There is no requirement under FOIA or the EIR for a requester
to explain why they need the information or to provide
justification for their request.
40. However, it is acceptable for an authority to enquire about the
requester’s motives where the request is ambiguous or
unclear, and knowing the reason for the request would help
the authority identify the information the requester needs.
This may often make good sense for both sides and if
approached correctly, enquiring in this way can be seen as
good customer service.
41. Where this is the case, the authority should make clear that it
wants the information solely for clarification purposes and no
other reason. The requester should not be given the
impression that the information is more or less likely to be
withheld if they do (or do not) explain the reasons behind
their request, and the public authority cannot insist that the
motive behind the request is revealed.
42. Further advice on interpreting requests is available from our
guidan
ce Interpreting and clarifying requests.
Applying exemptions with a prejudice, adverse effect or
other harm based test
43. In keeping with the general principle that disclosure is to the
world at large, when an authority is considering an exemption
with an associated prejudice test, that test should focus on
the consequences of disclosing the information to the wider
public.
44. This means that the key question the authority must consider
is whether there is a real and significant chance that a
member of the wider public will use the information in a
manner that would prejudice the interests protected by the
exemption.
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45. The test is therefore not so much about the identity and
motivation of the individual requester, but rather the purposes
for which that information is likely to be used if released into
the public domain.
46. This same approach will also hold true where the request falls
under the EIR and the authority wants to apply one of the
‘adverse effect’ exceptions in regulation 12(5). These
exceptions are subject to an ‘adverse effect test’ similar to the
FOIA prejudice test.
47. However, if the authority has reason to believe that the
requester, as a member of that wider public, would use the
information in a way that would prejudice the interests
protected by the exemption, then it may take this into
account when assessing the likelihood that prejudice or
adverse effect will occur.
48. The following Information Tribunal ruling, which concerned
Section 38 of FOIA (the exemption for information likely to
endanger the physical or mental health of any individual),
provides an example of a situation where the requester’s
identity and motives were deemed to be relevant factors.
49. Here, the judge concluded that there was a risk the requester,
as a member of the wider public, would use the information in
a manner that would prejudice the health and safety of other
individuals.
In
Hepple v ICO and Durham County Council (EA/2013/0168,
26 February 2014) the requester had asked for copy of an
investigation report into a pupil referral unit. The Council
refused to disclose the report, relying on several exemptions,
including section 38.
The Council drew the Information Tribunal’s attention to three
text messages the requester had sent to one of the individuals
involved in the handling of the report. Those texts (which were
sent a year after the request) had led the Police to issue the
requester with a formal notice under the Protection from
Harassment Act. The Tribunal was satisfied that the texts
evidenced a state of mind likely to have existed at the time of
the request.
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It stated;
‘…it is frequently said that an information request should be
considered without reference to the motive of the person
making the request. That certainly ensures that focus is
maintained on the fact that disclosure to a single requester
is, effectively, disclosure to the world. But assessing an
information request on this “motive blind” basis ought not to
prevent us from considering the potential risk to safety posed
by the requester him/herself.
In this case we drew the clear impression that the texts had
been transmitted with the purpose of menacing those whose
addresses the Appellant had acquired. We are satisfied that
they disclose an attitude of mind that justifies our concluding
that disclosure would have created a risk to the safety of those
mentioned in the text messages…(Paras 36 & 37)
50. Even though section 38 refers to endangering rather than
prejudicing health and safety it contains a harm based test
and so the same principles as covered in the prejudice test
will apply.
51. Similarly, although section 40(2) of FOIA and regulation 13 of
the EIR (the provisions for third party personal data) don’t
contain an explicit prejudice test, considering whether
disclosure of third party personal data would breach the DPA
principles may involve some consideration of harm or
detriment to the data subject. The same principle will
therefore apply and the test will be whether putting the third
party personal data into the public domain will breach of the
DPA principles.
52. For more detailed information on how to carry out a prejudice
based test please see our guidan
ce The Prejudice Test.
53. More detailed information on the application of the adverse
effect exceptions can be found in our guidan
ce How
exceptions and the public interest test work in the
Environmental Information Regulations.
54. For further detail on the provisions for third party personal
data please see our guidan
ce Personal information (section 40
and regulation 13).
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More information
55. Additional guidance is available
on our guidance pages if you
need further information on the public interest test, other
FOIA exemptions, or EIR exceptions.
56. This guidance has been developed drawing on ICO
experience. Because of this it may provide more detail on
issues that are often referred to the Information
Commissioner than on those we rarely see. The guidance will
be reviewed and considered from time to time in line with new
decisions of the Information Commissioner, Tribunals and
courts.
57. It is a guide to our general recommended approach, although
individual cases will always be decided on the basis of their
particular circumstances.
58. If you need any more information about this or any other
aspect of freedom of information, please
contact us, or visit
our website at
www.ico.org.uk.
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