Matthew Davis v IC (Freedom of Information Act 2000)

Factual and Procedural Background

The Appellant, a journalist with an interest in health service statistics, submitted two closely related requests for information to the Health and Social Care Information Centre ("HSCIC") on 19th July 2011. HSCIC, which collates and analyses health statistics for the Department of Health and provides public services either free or for fees, responded on 1st August 2011 by invoking the absolute exemption under section 21 of the Freedom of Information Act 2000 ("FOIA"), asserting that the requested information was reasonably accessible to the Appellant by other means, specifically through a chargeable service.

The Appellant complained to the Information Commissioner’s Office ("ICO") after HSCIC maintained its position on review. The ICO initially ruled that HSCIC did not hold the requested information for the purposes of FOIA section 1(1)(a), and therefore could not rely on the section 21 exemption. This decision was surprising given HSCIC's willingness to supply the information for a fee. The Appellant appealed the ICO’s decision to the First-tier Tribunal.

During the appeal, the ICO changed its position and accepted that HSCIC did hold the requested information and upheld the section 21 exemption. The Tribunal joined HSCIC as a respondent to provide evidence about its publication scheme, costs, and procedures.

The Tribunal heard detailed evidence from HSCIC witnesses about the publication scheme, the cost recovery service for bespoke information requests, and the nature and complexity of the dataset involved. The core funding from the Department of Health covers general aggregated data provision, while bespoke requests, such as those made by the Appellant, are charged to the requester based on the time and skill required to produce the information.

Legal Issues Presented

1. Whether the requested information was "reasonably accessible" to the Appellant by other means within the meaning of FOIA section 21.
2. Whether the Tribunal has jurisdiction to determine the reasonableness of access to information when the publication scheme has been approved by the ICO under FOIA sections 19 and 20.

Arguments of the Parties

Appellant's Arguments

• The fee of £1,550 quoted by HSCIC made the information not reasonably accessible for a person of ordinary means.
• Cited previous ICO decisions where high fees rendered information not reasonably accessible, including cases where fees were described as "prohibitive".
• Compared HSCIC unfavourably with other government departments, asserting that HSCIC was evading its FOIA responsibilities by relying on section 21 to refuse requests.
• Conceded that HSCIC published significant material free of charge but argued that the charges for bespoke data were a means to circumvent FOIA cost provisions.
• Asserted that how private request management should be funded was not his concern.

Respondents' Arguments (ICO and HSCIC)

• HSCIC maintained that the requested information was exempt under section 21 as it was reasonably accessible through their approved publication scheme and cost recovery service.
• The ICO argued that Parliament intended the approval of publication schemes under FOIA sections 19 and 20 to provide clarity and finality on what constitutes reasonable access.
• Section 21(3) of FOIA means that if information is made available in accordance with an ICO-approved publication scheme, it is to be regarded as reasonably accessible.
• Approval of the publication scheme by the ICO acts as a "kite mark" indicating reasonable accessibility, which can be revoked if charges become unreasonable.
• Disputed the Tribunal’s jurisdiction to reassess the reasonableness of access once the ICO has approved the publication scheme.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Tribunal’s analysis focused primarily on the interpretation of FOIA section 21(3) in the context of sections 19 and 20. The Tribunal considered whether the determination of reasonable accessibility is conclusively made by the ICO’s approval of a publication scheme or whether the Tribunal retains jurisdiction to evaluate this issue on a case-by-case basis.

The Tribunal initially expressed reservations about the Respondents’ interpretation, noting that the use of the word "merely" in section 21(3) might suggest that the ICO’s approval does not absolutely bar further assessment. It also noted that this interpretation could deprive the Tribunal of its statutory role as the first-instance forum for FOIA interpretation and leave requesters with limited remedies.

However, the Tribunal ultimately accepted the Respondents' view, reasoning that Parliament’s detailed scheme for publication scheme approval and the requirement to specify charges logically supports the conclusion that ICO approval establishes reasonable accessibility. The Tribunal recognized the ICO as the appropriate authority to determine reasonableness and that the approval can be revoked if charges become unreasonable.

As a fallback, had the Tribunal retained jurisdiction to decide the issue, it would have found that the information was reasonably accessible on the facts. The charges for bespoke requests were moderate relative to the time, skill, and work involved, and the service published as much information as reasonably possible free of charge.

Holding and Implications

The Tribunal DISMISSED the Appellant’s appeal.

The Tribunal held that the information requested was exempt from disclosure under FOIA section 21 because it was reasonably accessible to the Appellant via the HSCIC’s ICO-approved publication scheme, which included a cost recovery service for bespoke requests. This decision confirms that the ICO’s approval of a publication scheme under FOIA sections 19 and 20 effectively determines reasonable accessibility for the purposes of section 21(3).

The direct effect is that the Appellant is not entitled to the requested information without payment of the specified fees. The decision does not establish new precedent beyond affirming the statutory framework governing publication schemes and exemptions under FOIA.