Freedom of Information Act 2000 (FOIA) Decision notice Date: 31 March 2014 Public Authority: Address: London Borough of Hammersmith and Fulham Town Hall King Street Hammersmith London W6 9JU Decision (including any steps ordered) 1. The complainant has requested information relating to the sale of a property in the public authority s area. The London Borough of Hammersmith and Fulham ( LBHF ) refused to provide this information and cited sections section 40 (personal data), section 42 (legal professional privilege) and section 43 (prejudice to commercial interests) as its basis for doing so. However, at internal review it revised its position and cited section 12 (Cost of Compliance Limit Exceeded) as its basis for refusal. The complainant emailed a further request which LBHF failed to identify on its systems for technical reasons. It responded following the Commissioner s intervention. 2. The Commissioner s decision is that LBHF is entitled to rely on section 12 as a basis for refusing the request. It also provided adequate advice and assistance in respect of this request. However, in failing to respond to the further request within 20 working days, it contravened the requirements of section 1 and section 10 of the FOIA. 3. No steps are required. Request and response 4. On 24 May 2013 the complainant wrote to LBHF and requested information of the following description: Please provide me with copies of documentation created since 1 January 2012 by the public authority or passing between authority and its consultants or lawyers or Friends of Margravine Cemetery or any 1
other external party in respect of the planned disposal of West Lodge, Margravine Road, London W6 8HA. 5. On 14 June 2013, LBHF responded. Its response covered a number of requests from the complainant (and from his wife and an associate) to which it had applied the exemption at FOIA section 14 (vexatious request) as its reason for refusal. It was more equivocal about the 24 May 2013 request and said that it could comply with it without exceeding the costs limit but the information was likely to be exempt under section 40 (personal data), section 42 (legal professional privilege) and section 43 (prejudice to commercial interests) of the FOIA. 6. The complainant requested an internal review on 21 June 2013. The date of LBHF s letter which provides the outcome of the internal review is unclear. However, it would appear to have been sent at some point after 10 August 2013 because the letter refers in the past tense to missing a deadline of 10 August 2013. In this letter, LBHF revised its position and argued that it could not comply with the 24 May 2013 request without exceeding the cost limits referred to in section 12 of the FOIA. 7. The complainant made a further narrowed request on 27 August 2013 in the following terms: 8. West Lodge is located in Margravine Cemetery, which is a park of importance to the environment both in terms of its high level of biodiversity and its contribution to the local urban environment. The council plans to dispose of West Lodge. Under the Environmental Information Regulations 2004, please provide me with copies of documentation created since 1 January 2012 by the public authority or passing between authority and its consultants or lawyers or Friends of Margravine Cemetery or any other external party in respect of West Lodge, Margravine Road, London W6 8HA subject to the following refinements to limit the burden of work - only electronic records, except if there is are labelled files about West Lodge restricted to: - Building and Property Management division - Planning dept - communication from [named Councillor]. 9. The complainant did not receive a response to this request until the Commissioner prompted LBHF to provide it. LBHF argued initially that it 2
had not received the request. It later transpired that, for technical reasons, the email was, in effect, lost in its email system. The complainant had sent his request as a reply to an email received from LBHF s case management system. The email he received from the case management system had particular text in the subject line which he amended when making his fresh request. However, he was not alerted to the problem that might arise where he amended text in the subject line nor was he given any automated notification that there was a problem with allocation of his email on LBHF s systems. The complainant therefore had no way of knowing that his request had been lost. LBHF have since included a warning notice to all those who submit requests in the manner used by the complainant in this case. Scope of the case 10. The complainant contacted the Commissioner on 29 October 2013 to complain about the way his request for information had been handled. Shortly before this date he had contacted the Commissioner about this matter but had not supplied all the relevant correspondence in support of his complaint. 11. He complained about LBHF s failure to provide him with advice and assistance; to respond to his request of 27 August 2013 in a timely manner; and its reliance on section 12 in relation to his 24 May 2013 request. He also argued that the information included environmental information and that therefore the provisions of the Environmental Information Regulations ( EIR ) applied. 12. The Commissioner has therefore considered the following as part of his investigation: Is any of the requested information environmental information? If so, can LBHF rely on section 12 (or the closest equivalent EIR provision under regulation 12(4)(b)) as a basis for refusing to provide the requested information? Did LBHF provide a timely response to the 27 August 2013 request? Did LBHF provide adequate advice and assistance in relation to the 24 May 2013 request? Reasons for decision 3
13. Section 1(1) provides that Any person making a request for information to a public authority is entitled a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and b) if that is the case, to have that information communicated to him. 14. This two-part right to access official information is subject to exemptions. Information which is environmental information is exempt from disclosure under FOIA by virtue of section 39 of the Act. The appropriate information access regime is the EIR. Is the requested information environmental? 15. Environmental information is defined in regulation 2 as: any information in written, visual, aural, electronic or any other material form on a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a); c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements; d) reports on the implementation of environmental legislation; e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of elements of the environment referred to in (b) and (c); 16. In the Commissioner s view, when defining environmental information, for 2(1)(b) to (f) to apply, it is not necessary for the information itself to have a direct effect on the elements of the environment, or to record or 4
discuss such an effect. What is relevant instead is that the information should be on [the Commissioner s emphasis] something falling within these sections. 17. In this case, the requested information is correspondence exchanged in respect of the planned disposal of [a property in London]. The Commissioner accepts that this could include information which is environmental, such as property survey information which refers to, for example, property boundaries or access rights over the property. However, until the information is collated, it would not be possible to reach a conclusive view on this. LBHF has argued that it is not obliged to collate the information because the cost of doing so is excessive. 18. The purpose behind section 12 and EIR regulation 12(4)(b) the nearest equivalent provision to section 12 - is to avoid excessive costs to the public purse when complying with a request. It would defeat this purpose if a public authority was obliged to collate the requested information (regardless of the cost of doing so) in order to ascertain whether any of the requested information is environmental. In the Commissioner s view, a public authority should first collate the requested information before determining whether any of it is environmental information. If the cost of doing so exceeds the limit referred to in section 12 (see below), then a public authority can rely on section 12. 19. As noted above, environmental information is exempt from disclosure under the Act by virtue of section 39 the applicable disclosure regime is the EIR. However, public authorities cannot take into account the cost of considering exemptions when calculating the cost of compliance. This means that they cannot take into account the cost of determining whether information is environmental when calculating the cost of compliance. They must first collate the information, if the cost of compliance is not exceeded, and then consider whether any exemptions (including section 39). 20. This notice will therefore address whether the cost of collating the requested information exceeds the limit referred to in section 12. Section 12 Cost of compliance 21. Section 12(1) of FOIA states: Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit. 5
22. The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (the Fees Regulations ) provide that the appropriate limit for non-central government public authorities is 450. This must be calculated at the rate of 25 per hour, providing an effective time limit of 18 hours. If a public authority estimates that the time spent on complying with a request would exceed 18 hours, or 450, section 12(1) provides that the request may be refused. 23. A public authority can only take certain activities into account when assessing whether compliance with a request would exceed the cost limit. These activities are: determining whether it holds the information; locating a document containing the information; retrieving a document containing the information; and extracting the information from a document containing it. 24. Section 12 makes it clear that a public authority does not have to make a precise calculation of the costs of complying with a request. Only an estimate is required. 25. To determine whether the Council applied section 12 of the FOIA correctly the Commissioner has considered the submissions it provided to him during his investigation. The Commissioner considered whether the calculations provided by LBHF are cogent and reasonably arrived at. 26. LBHF set out the service areas, information formats and search terms it used as well as the date parameters it would need to follow when conducting a search. These included both electronic and physical files. It also explained that it may hold documents which refer indirectly to the property referred to in the request because they refer more broadly to the disposal of tied accommodation (relevant to this property). For this reason it also included more generic search terms including the phrase tied accommodation itself. 27. It also provided the complainant with the following explanation of the exercise it would need to conduct in order to respond to the request as follows: 1) determine if it does relate to your request, for example: o to confirm if it is general information about West Lodge or specifically about the disposal of West Lodge o to confirm if the information relates to the disposal of West Lodge even though West Lodge is not mentioned by name 6
2) remove any communications which have previously been sent to or from yourself [or from two named associates] 3) determine if any exemptions apply to the remaining relevant information. 28. As noted above, LBHF is not entitled to take in to account any time taken to consider the application of exemptions. This would discount any time taken to consider point 3 (using LBHF s numbering). It would also discount any time taken to remove any of the complainant s personal data. The complainant s own personal data is exempt under section 40(1) of the Act. If any of the activity described at point 2 above (again using LBHF s numbering) involves removing the complainant s personal data then, again, the time taken to do this must be discounted from LBHF s calculation of the cost of compliance. 29. The exemption at section 21 applies where the requested information is reasonably accessible to the complainant by other means. This may also be applicable to information which had previously been sent to him and to two named associates (LBHF s point 2 refers). LBHF could not take into account the time it might take to separate this information out when calculating the cost of compliance. 30. In its letter to the Commissioner, LBHF described one particular search exercise to cover 11 officers in one of its departments who were likely to hold relevant information. It said it would need to search emails to those officers and from those officers. It would also need to conduct 4 searches per batch of emails identified to cover the different phrases and single word search terms it thought would be most productive. It explained that this exercise would take 16 hours at an hour per search. It then added 65 hours time to review emails yielded by one of its research exercises in order to extract relevant information. 31. It also explained that in another exercise of a similar nature relating to a different request it took approximately 570 minutes to review 650 emails to identify the relevant information. It said that it used its experience of that search to calculate the cost of compliance here. 32. By the Commissioner s calculations, this means that LBHF asserts that it would take just under a minute to check an email for relevant information. Given that it has included erroneous factors in its calculations, namely the time it would take to consider exemptions, the Commissioner thinks that this figure could reasonably be halved some emails will take longer than 30 seconds to consider (particularly where they contain attachments), some will take considerably less than 30 seconds. However, the Commissioner accepts that the searches, even where conducted electronically, would produce a sizeable amount of 7
information which may fall within the scope of the request. LBHF would need to consider this information and extract any information which fell within the scope of the request. 33. LBHF said that it would retrieve 4500 emails from one of its searches. The time taken to extract the requested information from these records, would, in the Commissioner s view, exceed 18 hours, even if the time taken to consider exemptions were to be excluded. The time for compliance would also be exceeded if, for example, LBHF averaged 20 seconds to check each email for relevant information rather than 30 seconds. 34. The Commissioner also notes that LBHF had also identified at least one manual file containing 350 pages. LBHF estimated 30 seconds per page to search this file for relevant information which would, in itself, add up to over two and a half hours. The Commissioner considers this a reasonable calculation of time given that the officer searching for the information would not have the benefit of an electronic search facility. 35. The Commissioner finds LBHF s calculation of the cost of compliance with this request to be flawed in places, in that it has taken erroneous factors into account as part of its calculations. However, he is satisfied that the volume of information caught by the scope of the request is so great that, even if LBHF s calculations were to be halved, the cost of compliance would still exceed the appropriate limit. The scope of the request is very wide. It covers a significant period of time and includes a number of business areas at LBHF. The number of staff in each business area whose electronic records would need to be scrutinised exceeds 10 in at least one of those business areas. Section 12 - Conclusion 36. In light of the above, the Commissioner is satisfied that LBHF is exempted from its obligation to provide the information requested on 24 May 2013 by virtue of section 12(1), despite the flaws in some of its calculations. In reaching this view, the Commissioner has had particular regard to the volume of information that a search using the parameters set out in the request would yield. Did LBHF provide a timely response to the 27 August 2013 request? 37. LBHF has set out technical reasons why the complainant s request of 27 August 2013 was not picked up and processed by its systems. Any technical problems it might have had do not absolve it of its responsibilities under the Act. It should have taken appropriate measures to avoid losing requests it has now taken these steps. Had the complainant been alerted to the problem, for example, by an 8
automated message indicating that the emailed request had not been delivered, then he could have contacted LBHF about resubmitting his request. The complainant had no way of knowing that the request had not been picked up and, it appears, LBHF did not have appropriate measures in place to log all incoming requests. 38. Section 10(1) of the Act provides that a public authority must comply with section 1(1) promptly and in any event not later than the twentieth working day following the date of receipt. 39. LBHF did not respond to the complainant s request of 27 August 2013 within 20 working days. In failing to do so, it contravened the provisions of section 1(1) and section 10(1) of the Act. Did LBHF provide adequate advice and assistance in relation to the 24 May 2013 request? 40. Section 16(1) of the FOIA provides that a public authority is required to provide advice and assistance to any individual making an information request. In general where section 12(1) is cited, in order to comply with this duty a public authority should advise the requester as to how their request could be refined to bring it within the cost limit, albeit that the Commissioner does recognise that where a request is far in excess of the limit, it may not be practical to provide any useful advice. 41. The complainant asked the Commissioner whether LBHF should have got in touch with me and engaged with me as soon as it became clear that the amount of information retrieved might be too much? He implies, therefore, that LBHF has not done this. 42. The Commissioner notes that LBHF initially thought it could collate the requested information within the cost limit. The Commissioner has no reason to believe this was anything other than a genuine view. However, in its letter to the complainant setting out the outcome of its internal review (sent after 10 August 2013), LBHF says: If you were to submit a request of a more narrowed scope it may be that [LBHF] could comply with the request within the cost limits. For example, Asset Strategy & Portfolio Management, who are responsible for managing H&F s sale of West Lodge, may have a physical or electronic file dedicated to the aspects of the sale which they manage, it may be that the information contained in this file could be located within the cost limits. 43. In the Commissioner s view, this provides adequate advice and assistance in respect of this request and it was provided to the complainant as soon as LBHF became aware that the appropriate limit was exceeded. The Act allows for an internal review so that a public 9
authority can reflect on its initial response and react to any errors it identified in its initial approach. Section 16 - Conclusion 44. Given that LBHF did explain to the complainant how he might narrow the scope of his request within the cost limits, the Commissioner is satisfied that LBHF provided the complainant with adequate advice and assistance with regard to his request of 24 May 2013. 45. The Commissioner notes that the complainant s request of 27 August 2013 did not confine the scope of the request to the business areas recommended by the public authority. Instead, he refined his request in the following terms: - only electronic records, except if there is are labelled files about West Lodge restricted to: - Building and Property Management division - Planning dept - communication from [named Councillor]. 46. The fact that he did not use the refinement to his wording that was recommended by LBHF does not negate the adequacy of the advice and assistance that LBHF gave. 10
Right of appeal 47. Either party has the right to appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from: First-tier Tribunal (Information Rights) GRC & GRP Tribunals, PO Box 9300, LEICESTER, LE1 8DJ Tel: 0300 1234504 Fax: 0116 249 4253 Email: GRC@hmcts.gsi.gov.uk Website: www.justice.gov.uk/tribunals/general-regulatory-chamber 48. If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website. 49. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent. Signed Alexander Ganotis Group Manager Complaints Resolution Information Commissioner s Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF 11