The Chief Constable of South Yorkshire Police v The Information Commissioner

Under the Freedom of Information Act 2000 cost-limit scheme, a public authority may count only the costs of the activities specified in regulation 4(3) of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. The list is exhaustive. “Extracting the information” covers separating requested information from other information in the same document. It does not include deciding whether requested information is exempt, applying the public-interest test, or physically redacting exempt information. The statutory reference to the cost of complying with a request does not enlarge the specified list.

A journalist requested information and reports concerning illegal firearms from South Yorkshire Police. The police disclosed part of two documents, redacting material said to be exempt under sections 21, 31 and 38 of the Freedom of Information Act 2000. The police argued that the time spent redacting exempt material counted towards the appropriate cost limit under regulation 4 of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004.

The Information Commissioner required further disclosure or a refusal notice. The Information Tribunal dismissed the police’s appeal. The High Court appeal, brought on a point of law, concerned whether time spent redacting exempt information was included within regulation 4(3), particularly regulation 4(3)(d).

1. Appeal dismissed. The time for complying with the Commissioner’s decision notice was extended to 35 days from the handing down of judgment. The Chief Constable was ordered to pay the Commissioner’s costs.
2. Regulation 4(3) of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 contains an exhaustive list of the costs which may be taken into account when estimating whether the appropriate limit is exceeded. The word “only” and the contrast with regulations 6(3) and 7(4), which use non-exhaustive wording, support that construction.
3. Regulation 4(3)(d), permitting costs of extracting information from a document containing it, concerns extracting requested information from information in the same document which was not requested. The references to “the information” in regulation 4 must be read consistently with regulation 4(2) and section 1(1) of the Freedom of Information Act 2000.
4. Requested information remains within regulation 4(2) whether or not an exemption ultimately disapplies the duties in section 1(1), because section 1(1) operates subject to sections 1(2) and 2. That does not make the time spent redacting exempt information an allowable cost under regulation 4(3)(d).
5. The estimate is limited to the specified activities. It therefore excludes determining whether information is exempt, applying the public-interest test, issuing notices, and disclosing the information. Physical redaction of exempt information is likewise excluded.

• High Court (Administrative Court): Appeal from the Information Tribunal’s decision promulgated on 14 December 2009. The appeal was dismissed on the statutory-construction issue, subject to an extension of time for compliance.