Suppose a FOIA request is refused in reliance upon exemptions. Is the requester entitled to submit a further request, asking for summaries of that same information such that the summaries do not contain any exempt information?

This question was considered in Pounder v IC and MOJ (EA/2011/0116). The Tribunal agreed with the Commissioner that the answer to this question is ‘no’. A requester is only entitled to ‘information held’, so if a summary document exists at the time of the request, then that is within scope and (subject to exemptions) must be disclosed. Otherwise, public authorities are not required to create or compile summaries so as to help requesters ‘get round’ exemptions.

Section 11(1)(c) of FOIA provides that where a complainant specifies a preference for the requested information to be produced in the form of a summary or similar précis, the public authority should give effect to that request and preference where reasonably practical to do so. This provision, said the Tribunal, comes into play only once this prior question has been determined, namely: to what information is the requester entitled? The public authority must consider the scope of the request, identify the information it holds within that scope and apply exemptions as it sees fit. Only then must a ‘section 11 preference’ be given effect to where reasonably practical. If a ‘summary’ is not held at the time of the request, then it need not be created.

Robin Hopkins