Innes v Information Commissioner & Anor

Under the Freedom of Information Act 2000, an applicant who requests an electronic copy may ordinarily specify the software format in which it is supplied, such as Excel. The preference remains subject to reasonable practicability. It must be expressed when the substantive request is made, although a later communication may in substance constitute a fresh request.

A request for information about how a public authority’s data is organised, made to help formulate a focused request, is a request for advice and assistance under section 16. That duty may be satisfied by reasonable alternative assistance, including annotated screenshots and an offer to explain relevant fields.

Mr Innes made requests under the Freedom of Information Act 2000 concerning the operation of the 11+ examination by Buckinghamshire County Council. He requested the substantive information in Excel format, but the Council supplied PDF versions of spreadsheets. He also sought information about the database headers and fields so that he could formulate a properly focused request.

The Information Commissioner rejected his complaints on 14 March 2011. The First-tier Tribunal upheld that decision on 25 August 2011, and the Upper Tribunal, by a decision dated 16 April 2013 in GIA/3436/2011, upheld the First-tier Tribunal. The central issues before the Court of Appeal were whether section 11 permitted a preference for a particular software format and whether the Council had complied with its duty to provide advice and assistance under section 16.

Disposition. The appeal was allowed in relation to the section 11 complaint and dismissed in relation to the section 16 complaint. Underhill LJ gave the judgment. Sir David Keene agreed, and Longmore LJ agreed with the conclusions while adding a short clarification.

1. Section 11. The court held that a preference for electronic communication under section 11 may extend to the particular software format in which the information is embodied. Once an applicant can require information in electronic form, specifying Excel is a natural further specification of its form. The entitlement remains subject to reasonable practicability, including whether the authority already holds the information in that format, can readily convert it, and can do so consistently with any software licence. The conclusion was specific to software format.
2. Timing and fresh request. The words requiring a preference to be expressed on making the request mean that the preference must ordinarily accompany the original substantive request. This protects the timetable under section 10. However, the later e-mail requesting Excel files could be treated in substance as a fresh request for the same information with a section 11 preference. Sections 14(1) and 14(2) did not prevent that analysis.
3. Section 16. The October 2009 requests sought assistance in identifying the fields or headers by reference to which information was organised, so that a focused request could be formulated. They were therefore requests for advice and assistance under section 16, not substantive requests under section 1. The First-tier Tribunal had approached the issue on the wrong basis, but the appeal still failed. The Council did not hold a separate list of headers; it supplied annotated screenshots and offered further explanations. On the material before the Tribunal, it could not properly find a breach of section 16. The Court of Appeal’s role was limited to correcting an error of law.
4. Authorities. The observations in Glasgow City Council v Scottish Information Commissioner [2009] CSIH73; [2010] SC 125 concerned a different issue and were expressly treated as obiter. They did not determine the software-format question. The criteria in Pepper v Hart [1992] UKHL 3; [1993] AC 593 were satisfied only for the separate question whether electronic rather than paper communication could be required. The Council was given 21 days to make written representations if it sought a different consequential order.

• Court of Appeal (Civil Division) — [2014] EWCA Civ 1086: allowed the appeal on the section 11 complaint and dismissed it on the section 16 complaint.
• Upper Tribunal (Administrative Appeals Chamber) — Judge David Williams, 16 April 2013, GIA/3436/2011: upheld the First-tier Tribunal’s decision.
• First-tier Tribunal — Judge Alison McKenna and members, 25 August 2011: upheld the Information Commissioner’s decision.
• Information Commissioner — decision dated 14 March 2011: rejected the complaints.