Department of the Environment (Northern Ireland) v The Information Commissioner: [2016] UKUT 83 (AAC): [2016] AACR 34

Upper Tribunal Administrative Appeals Chamber decision by Judge Stockman on 2 December 2015.

Read the full decision in GIA/4319/2014].

Judicial Summary

Freedom of information – meaning of information – whether distinction between “information” and the medium on which it was held

An application was made to the Department of the Environment (Northern Ireland) under the Freedom of Information Act 2000 (FOIA) for, among other things, copies of all the emails sent and received by two of its employees from 1 May 2012 to 31 May 2012 inclusive. The Department refused this application, arguing that the request was not valid under section 8(1)(c) of FOIA as it failed to describe the information requested. The Information Commissioner concluded that the applicant had described the requested information sufficiently clearly for the purposes of section 8(1)(c). The Department’s appeal against that decision was rejected by the First-tier Tribunal (F tT); it decided that the crucial issue was whether the request described the information they required and held that the Department’s approach was too limited. The Department appealed to the Upper Tribunal (UT), arguing that the F tT had erred in law by failing to give adequate reasons for its decision or to take account of the decision in M L Johnson v Information Commissioner and Ministry of Justice (EA/2006/0085) and had failed to distinguish between “information” and the medium on which information was held or by which it was communicated.

Held, disallowing the appeal, that:

  1. the F-tT had clearly understood the dispute, had explained the reasons for its decision and had not erred by failing to take into account the decision in M L Johnson v Information Commissioner and Ministry of Justice. That decision was not binding on the F-tT and was of limited value as it involved a different issue: whether the cost of compliance involved in providing the requested information exceeded the appropriate limit (paragraphs 15 to 18);

  2. the purpose of section 8(1)(c) was to enable the public authority to identify the requested information with sufficient precision that it could be ascertained whether the authority held the information, whether the information was exempt information under Part II of FOIA, whether it was exempt on cost of compliance grounds under section 12, or whether the request was vexatious under section 14. There was no requirement in the legislation to describe information by subject or topic (paragraphs 25 to 26);

  3. the appellant submitted that the request was “for a medium upon which information is recorded”. However, there was no conceptual difference between a request for a particular e-mail and a particular piece of handwritten correspondence. Each involved a request for the information carried by the particular medium (paragraph 28);

  4. under section 1(3) of FOIA, the statutory obligation to provide information was relieved when the information requested was described in such a way that the public authority could not reasonably identify what it was that the requester was asking for. In the present case the scope of the request for information was clear, and the F tT’s finding that the request was valid had been reasonable (paragraphs 29 to 30).

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