Section 11 and the Form of a Request

September 19th, 2011 by Christopher Knight

Although not a decision which is likely to make front-page news anywhere, the Tribunal’s recent decision in Innes v Information Commissioner (EA/2011/0095) does contain a couple of points of practical utility. The request was for information relating to 11+ results and the appellant objected that he had requested that the information be supplied to him in the form of a Microsoft Excel spreadsheet file (other software is available). The public authority declined to do so on the basis that it was not obliged under s.11 FOIA to provide information in a particular format, and that in any event, the clarification that Excel was wanted was made after the request and so did not fall within s.11 on that basis either.

The Tribunal dismissed the appeal. It upheld the Commissioner’s practice of distinguishing between a “form” (as specified in s.11) and a ‘format’ (not specified). Requesting information be supplied electronically is a form, but requesting it in an Excel spreadsheet is a format, and a step too far. The Tribunal considered that this was the clear effect of the language of s.11(1) and that reference to Hansard was unnecessary. The Tribunal accepted that the Inner House of the Court of Session had come to a persuasively similar view in respect of the equivalent Scottish provisions: Glasgow City Council v Scottish Information Commissioner [2009] CSIH 73. The distinction is between permanent (i.e. paper) and another (i.e. electronic) form and not more specific than that.

The Tribunal confirmed that any preference must be expressed at the time of request, as clearly set out in the wording of s.11. The reasonable practicability test does not apply to this.

The Tribunal also reiterated its position that the requirements of s.16 FOIA and the accompanying Code of Practice do not extend to the public authority explaining the information it has provided to the requestor.

As noted at the outset, the case hardly sets the world alight, but it does provide a welcome clarification on what is covered by a preference for “form” in s.11(1) which is likely to be practically useful to public authorities faced with demands to supply information in a particular electronic format. The Commissioner’s public position on the point remains the clearest guidance. There is, of course, nothing to stop an authority complying with that request if it wishes to do so, but FOIA does not impose any obligation.