In the usual end of term rush, the Court of Appeal has handed down judgment in Innes v Information Commissioner  EWCA Civ 1086 on the provision in section 11 FOIA which allows a requestor to express a preference for communication by a particular means, so long as it is reasonably practicable to give effect to the preference. The issue in Innes was that Mr Innes had requested certain school admissions information and had sent a further email shortly afterwards asking for that information to be supplied to him in Excel format. The ICO, the FTT and the Upper Tribunal had all ruled against Mr Innes, in part relying on the Scottish decision of Glasgow City Council v Scottish Information Commissioner  CSIH 73;  SC 125.
The Court of Appeal, however, took a different view. The judgment of Underhill LJ is surprisingly long, but can be quite quickly summarised. His initial reasoning was that provision of information in permanent form encompassed hard or electronic copies, but no more than that; what was sought was the right to choose the form of permanent form in which the information is provided, but FOIA gives no such right: at . However, Underhill LJ, with some hesitation (not shared by Longmore LJ), went on to accept that that was not the end of the matter. It was a natural use of English to describe the software format in which a copy of the requested information was provided as an aspect of its “form”. It naturally flowed that he could choose the format in which that electronic information was provided. The fact that a software format such as Excel was more than simply a means of presenting information did not mean that the format could not be described as an aspect of the form of the information. Such a reading fitted with the apparent philosophy of the Act. Citizens were given the right of access to public information at least in part so that they could make use of that information, and there was no countervailing policy consideration. A construction of the Act that made it easier for them to do so effectively was to be preferred: at -. No assistance was drawn from Hansard, the Glasgow case or the dataset amendments. The upshot is that, so long as the request is reasonably practicable and does not require the public authority to put the information into a new format or breach its licence conditions, a request to be supplied with information in a specific programme should be complied with.
The Court also took a non-technical approach to when the request was made. Underhill LJ accepted that the wording of section 11 meant that the request for the format must be made at the time of the information request, and could not be made later. However, it was also quite happy to construe the follow-up email of Mr Innes as further, replacement, FOIA request: at . It is not perhaps entirely to see how those two points are readily compatible, or least how the latter does not fundamentally undermine the former.
Mr Innes had also raised a section 16 complaint. Underhill LJ had some criticisms about the reasoning of the FTT – particularly about the approach it had adopted to what was a section 1 request and therefore what section 16 applied to – but accepted that on the material before it the First Tier Tribunal could not properly have found a breach of section 16 on the part of the Council, it having explained the information it had provided and offered to provide further explanations if required: at . Underhill LJ agreed that section 16 did not encompass assistance in explaining information which he had requested and which had been provided, providing that it was information supplied under section 1: at .
Edd Capewell appeared for the ICO.