Little v ICO and Welsh Assembly Government (EA/2010/0072) is the latest application of the principles in DBERR v IC and Platform (EA/2008/0096) concerning “manifestly unreasonable” requests under regulation 12(4)(b) EIR. In particular, it deals with a public authority’s reliance on that exemption based on the excessive time which would be required to comply with the request.
The Tribunal confirmed that manifest unreasonableness – whilst not a condemnatory term – did imply a higher threshold than mere unreasonableness. A certain obviousness was required. Beyond that, no more precise definition could be given, and terms such as “self-evidently” were not applicable. The cost of compliance is relevant, but only as one factor among many. A request may be manifestly unreasonable if the cost of compliance is disproportionate the importance of the issue, or if compliance would divert resources so as significantly to disrupt the public authority’s normal activities. These, however, are only examples, and each case must be decided on its own facts. On the facts of this case (which concerned information on the disposal of land owned by Forestry Commission Wales for the purposes of wind farm development) the requests were manifestly unreasonable.
Two points of general interest emerge.
First, the “cost of compliance” provision under section 12 FOIA may not be used as a yardstick for determining manifest unreasonableness under regulation 12(4) EIR. The provisions are entirely separate, and one offers no guidance on the other.
The second is that compliance with the duty to advise and assist under regulation 9 EIR is a precondition for reliance on regulation 12(4)(c) (the exemption applicable where a request is too general) – but not for reliance on manifest unreasonableness under regulation 12(4)(b). This does not mean, however, that the duty to advise and assist is irrelevant to regulation 12(4)(b). The Tribunal was clear that “a public authority should expect, in the appropriate case, to have to engage with the request, and the requester, to consider whether a more manageable and reasonable formulation of the request can be achieved, before refusing a request for being manifestly unreasonable”.
The Tribunal also observed that the preparation of a 20-page list of files which might contain the requested information was not required under regulation 9 in this case – but once such a list has been prepared, the failure to provide the requester with a copy might cast a public authority’s efforts under regulation 9 in an unfavourable light.