Innes v Information Commissioner & Anor

This is an appeal against a decision of the Upper Tribunal (Judge David Williams), dated 16 April 2013, upholding the decision of the First Tier Tribunal (Judge Alison McKenna and members), dated 25 August 2011, which itself upheld a decision of the Information Commissioner, the First Respondent, dated 14 March 2011 rejecting a complaint brought by the Appellant, Mr Nick Innes. It arises out of a series of requests made by Mr Innes in the course of 2009 and 2010 under the terms of the Freedom of Information Act 2000 to Buckinghamshire County Council, the Second Respondent, about the operation of the 11+ exam in the county.

Mr Innes has appeared before us in person, as he did before the Upper Tribunal. The Commissioner has been represented by Mr Edward Capewell of counsel, who also appeared below. The Council has taken no part in the appeal.

Section 1 (1) of the 2000 Act creates the basic right to obtain information from a public authority. It reads:

“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.”

Section 10 prescribes the timetable within which an authority must comply with a request. The details are immaterial for our purposes; but, broadly and subject to various qualifications, an authority must comply by not later than the twentieth working day following the date of receipt of the request.

Section 11 prescribes how a public authority may communicate information pursuant to a valid request under section 1. It reads:

“Means by which communication to be made

(1)

Where, on making his request for information, the applicant expresses a preference for communication by any one or more of the following means, namely—

(a)

the provision to the applicant of a copy of the information in permanent form or in another form acceptable to the applicant,

(b)

the provision to the applicant of a reasonable opportunity to inspect a record containing the information, and

(c)

the provision to the applicant of a digest or summary of the information in permanent form or in another form acceptable to the applicant,

the public authority shall so far as reasonably practicable give effect to that preference.

(2)

In determining for the purposes of this section whether it is reasonably practicable to communicate information by particular means, the public authority may have regard to all the circumstances, including the cost of doing so.

(3)

Where the public authority determines that it is not reasonably practicable to comply with any preference expressed by the applicant in making his request, the authority shall notify the applicant of the reasons for its determination.

(4)

Subject to subsection (1), a public authority may comply with a request by communicating information by any means which are reasonable in the circumstances.”

In the interests of brevity, I will at some points below refer to the expression of a preference as to the means by which requested communication should be communicated as a “section 11 request”; and also to the section as giving an applicant a choice as to such means (though that is not quite accurate because of the qualification about reasonable practicability). I should note that with effect from 1 September 2013, i.e. since the events with which we are concerned, section 11 has been amended: I deal with this further at para. 27 below.

Section 16 provides that, over and above the primary duty to provide information, public authorities are under a duty to assist members of the public in connection with requests under the Act. It reads:

“Duty to provide advice and assistance

(1)

It shall be the duty of a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it.

(2)

Any public authority which, in relation to the provision of advice or assistance in any case, conforms with the code of practice under section 45 is to be taken to comply with the duty imposed by subsection (1) in relation to that case."

Section 45 requires the Secretary of State to issue a Code of Practice. The relevant parts of the section read as follows:

“(1)

The Secretary of State shall issue, and may from time to time revise, a code of practice providing guidance to public authorities as to the practice which it would, in his opinion, be desirable for them to follow in connection with the discharge of the authorities' functions under Part I.

(2)

The code of practice must, in particular, include provision relating to—

(a)

the provision of advice and assistance by public authorities to persons who propose to make, or have made, requests for information to them,

(b)- (e) ...”

(Both section 1 and section 16 fall under Part I of the Act.) A Code has duly been issued. Paras. 8 and 10 read as follows:

“Clarifying the request

8.

A request for information must adequately specify and describe the information sought by the applicant. Public authorities are entitled to ask for more detail, if needed, to enable them to identify and locate the information sought. Authorities should, as far as reasonably practicable, provide assistance to the applicant to enable him or her to describe more clearly the information requested.

10.

Appropriate assistance in this instance might include:

• providing an outline of the different kinds of information which might meet the terms of the request;

• providing access to detailed catalogues and indexes, where these are available, to help the applicant ascertain the nature and extent of the information held by the authority;

• providing a general response to the request setting out options for further information which could be provided on request.

This list is not exhaustive, and public authorities should be flexible in offering advice and assistance most appropriate to the circumstances of the applicant.”

We do not have full information about the requests made by Mr Innes to the Council, or the associated correspondence, but the following will suffice for present purposes.

It seems that Mr Innes’s initial request was in very wide terms and was refused by the Council on the basis that it would be too expensive to comply with. That apparently led to correspondence about how his request might be refined. In the course of that correspondence the Council referred to a “database table” held by it. On 29 October 2009 Mr Innes e-mailed the Council as follows:

“I think it best if you just provide me with all of the headers in this DB table – please can you do that ?

Also

If there are links to other tables from this table, would you also explain what these tables are as that data may be useful also.

So I confirm that if data exists in relation to children that have taken (or eligible for) the 11+, beyond that contained in the table already requested above, I’d like to know what that data is (Table/Headers/Data description).”

The next day he sent a further e-mail, which included the following:

“I require all the headers of this DB table(s) from which the 11+ results data was taken as well as fields from any other tables that are linked to these records in the DB that form a view of the child in question. This is not restricted to what would strictly be called 11+ results data …”

Mr Innes’s e-mails of 29 and 30 October were not a request for information falling within the terms of section 1. Rather, what he was doing was seeking information about the way in which the data held by the Council was organised – that is, by reference to what “headers” or “fields” – so that he could formulate a properly focused request for information. It is common ground that that was a request for “advice and assistance” within the meaning of section 16.

The Council’s response was to send Mr Innes on 25 November 2009 a set of thirteen screenshots showing interfaces with the database, each of which was annotated with an explanation of what the screen showed: I shall return to this aspect in more detail below. We have been supplied with copies of the screenshots themselves but not with any covering letter or e-mail from the Council. It seems likely that there was some such letter and that it said something to the effect that the screenshots should give Mr Innes the assistance that he required; but he tells us that it did not say anything else of substance. It also seems, though we do not have the communications in question, that Mr Innes asked for and was given certain further information about what appeared on the screenshots – for example, certain abbreviations were explained.

On 20 January 2010 Mr Innes submitted the following request to the Council:

“Please provide the following 11+ information:

1)

School

2)

VRTS Score

3)

Attitude to Work

4)

Academic Recommendation

5)

1^st Test Score

6)

2^nd Test Score

7)

Both Test Dates

8)

Plus, if tested by us other than at a school, the test venue and time for each test

9)

Plus, if there has been an application for test modifications, there is a more detail just to record the application process and outcome

10)

Appeal data – Success/Fail

For 2007, 2008, 2009.

Also, it is not clear to me what all the headers of the 2 Databases actually are and what is available to me. (I did not deduce that ATT and HTR correspond to the headers you described). Since there may well be others, can you simply list all the headers please?”

That is, on analysis, both a substantive request for information under section 1 – i.e. for information under the ten headings which are listed – and also, in the final paragraph, a request for further advice or assistance under section 16. The ten headings appear all to correspond to headers or fields apparent on the screenshots which he had been sent in November 2009, but he told us that he did not in fact derive them from that source but from other information available to him.

On 7 February 2010 Mr Innes sent a further e-mail to the Council in which he asked that the information sought under headings 1-10 in his earlier request should be provided to him “in Excel format”: that is the Commissioner’s description of the request – we have not seen the e-mail itself and do not know exactly how it was phrased. It appears to have been common ground at all stages that that request should reasonably have been understood as a request to send the information as Microsoft Excel files (that is, not simply as printouts or screenshots of the material as it would be displayed by Excel).

On 8 March 2010 the Council wrote to Mr Innes to inform him that it was processing his request and to apologise for the delay. So far as the final paragraph of his e-mail of 20 January 2010 was concerned, it told him that it had already provided him with all the information regarding the database headers in the form of the annotated screenshots. It offered to explain further any of the fields or abbreviations which he did not understand.

By an e-mail dated 17 March 2010 the Council sent Mr Innes, in purported compliance with his request for information dated 20 January 2010, 184 pages of Excel spreadsheets containing the information which he sought. However, contrary to the request in his e-mail of 7 February, they were not supplied as an Excel file or files but as PDFs. The result of course was that, although he had all the information for which he had asked, it could not be manipulated or processed in any of the ways permitted by the standard Excel software (e.g. generating graphs or tables or performing statistical analyses).

Mr Innes complained to the Commissioner about the Council’s response to the requests to which I have referred above. It seems that he may have complained about other matters too; but we do not have a copy of the complaint itself, and we are only concerned with those aspects of his complaint which led to the decisions in the two Tribunals and in respect of which he has appealed. As explained before us (though, as will appear, the position may not have been quite so clear below) they can be summarised as follows:

The Commissioner rejected both complaints, as did the First Tier Tribunal. I summarise their reasons below. In the Upper Tribunal Judge Williams dealt only with the section 11 complaint: again, I will summarise his reasoning below. He gave short written reasons for refusing permission to appeal to this Court: in those reasons he said that he had not dealt with the section 16 issue because it raised no issue of law falling within his jurisdiction.

Lewison LJ gave permission on the papers for Mr Innes to appeal in relation to the section 11 complaint (ground 1 in the Appellant’s Notice) but not in relation to the section 16 complaint (ground 4); but at an oral hearing Richards LJ allowed the appeal to proceed on the latter ground as well.

I consider the two complaints in turn.

There are in fact two issues in relation to this complaint – one concerning the construction of section 11 (1) and the other involving a procedural point peculiar to the history of Mr Innes’s request. The former is the more significant and was the focus of the argument before us, and I will take it first.

The Commissioner addresses this issue at para. 31 of his Decision Notice. He says:

“Cases have arisen leading to decision notices relevant to this case, such as that in FS50094281 Bath and North East Somerset Council … where a complainant requested an electronic copy in a particular format, for example in a word document or a PDF file. The Commissioner’s view is that there is a distinction between the form in which a piece of information is communicated e.g. an electronic form, and how the data is arranged within that form i.e. the specific software format. In short, although an applicant can ask for an electronic copy they are not entitled to specify down to the next level, the specific software format.”

I have looked at the earlier decision referred to by the Commissioner, but it does not contain any more detailed reasoning.

The First Tier Tribunal also deals with the matter briefly. It says, at para. 25:

“The Tribunal finds that the meaning of s. 11 is clear and that on a straightforward reading it does not include the ability to express a preference for the electronic format in which information should be provided. The Tribunal agrees with the First Respondent that the distinction made in s. 11 is one between “permanent form” or “another form” i.e. paper or electronic forms. This view is supported by the persuasive authority of the Scottish Court’s decision referred to at paragraph 22 above.”

The Scottish decision referred to is the decision of the Inner House in Glasgow City Council v Scottish Information Commissioner [2009] CSIH73, [2010] SC 125, which I discuss at para. 26 below.

The discussion by Judge Williams in the Upper Tribunal is fuller: indeed it is clear that he considered the section 11 issue with considerable care. He starts, at para. 38, with the observation (disagreeing on this point with the Commissioner and the First Tier Tribunal) that the word “form” could be used in many different senses and that its use in section 11 (1) could not be regarded as unambiguous. He quotes one of the (many) senses given in the Oxford English Dictionary, “a particular way in which a thing exists or appears”. He observes that “format” likewise is used in different ways, sometimes interchangeably with “form”. To anticipate, I agree with all of that. He then goes on to review various materials which had been relied on by the parties as aids to the construction of section 11, namely the effect of section 102 of the Protection of Freedoms Act 2012; the Glasgow City Council case; the Environmental Information Regulations 2004; and a passage from Hansard relating to the committee stage of the bill which became the 2000 Act. His dispositive reasoning is at paras. 51-57. Having expressed the view, echoing what he had already said at para. 38, that it was unhelpful to express the issue in terms of a distinction between “form” and “format”, he continues:

“54 … the question becomes: to what extent can a requester dictate the way in which he or she is provided with the information requested ? The Glasgow case deals with that clearly when applied to paper-based disclosures of information. A requester is in general terms entitled to receive the details of any disclosable information that is recorded but not to receive that disclosure in the precise way in which it is recorded (for example by a specific deed, or on a specific form).

55 In my view exactly the same principle should be applied under the 2000 Act to non-paper-based disclosures. A requester can indicate a preferred means of disclosure and an authority may comply. But the requester can only insist on the way in which the information is disclosed in more general terms, for example in hard copy or by electronic means.”

It will be convenient to summarise at this stage the materials referred to by the Upper Tribunal as having been relied on by the parties (though I can omit the Environmental Information Regulations since in the end they were not relied on before us (Footnote: ¹)).

The Glasgow City Council case. This was an appeal against a decision of the Scottish Information Commissioner under the Freedom of Information (Scotland) Act 2002. Section 11 of the Scottish Act reads (so far as material) as follows:

“Means of providing information

(1)

Where, in requesting information from a Scottish public authority, the applicant expresses a preference for receiving it by any one or more of the means mentioned in subsection (2), the authority must, so far as is reasonably practicable, give effect to that preference.

(2)

The means are -

(a)

the provision to the applicant, in permanent form or in another form acceptable to the applicant, of a copy of the information;

(b)

such provision to the applicant of a digest or summary of the information; and

(c)

the provision to the applicant of a reasonable opportunity to inspect a record containing the information.

(3)

… .”

It will be observed that those provisions are in substance identical to section 11 (1) of the 2000 Act. One of the issues was whether an applicant was entitled under the Scottish Act to request copies of documents containing information, as opposed only to the information contained in those documents; and it was argued by the applicant that a request for such copies constituted a request for the information to be provided in a particular “form” within the meaning of section 11 (2). In that context Lord Reed, giving the opinion of the Court, said at para. 57 (p. 145):

“When section 11 (2) (a) refers to the "form" in which a copy of the information may be provided, it appears to us to have in mind such possible forms as electronic files, paper documents, audio or video tapes, or verbal communication. That is consistent with the sense in which the word "form" is used elsewhere in the Act (e.g. in sections 8 (1) (a) and 47 (2) (a)).”

(The two sections of the Scottish Act there referred to are not equivalent to any provision of the 2000 Act.) Those observations were not directed to the particular issue which we have to decide and were in any event strictly obiter, since the appeal was decided on a different point; but they were nevertheless evidently carefully considered. As we have seen, Judge Williams believed that the Court’s reasoning could be applied by analogy to the present case.

The 2012 Act. Section 102 of the Protection of Freedoms Act 2012 (which received royal assent on 1 May 2012 but came into force in the relevant respects on 1 September 2013) inserts into section 11 a new sub-section (1A) in the following terms:

“Where—

(a)

an applicant makes a request for information to a public authority in respect of information that is, or forms part of, a dataset held by the public authority, and

(b)

on making the request for information, the applicant expresses a preference for communication by means of the provision to the applicant of a copy of the information in electronic form,

the public authority must, so far as reasonably practicable, provide the information to the applicant in an electronic form which is capable of re-use.”

A new sub-section (5) defines “dataset” in elaborate terms which I need not set out here: it is sufficient to borrow the summary definition from the Commissioner’s Guidance on Datasets, which says that a dataset “is a collection of factual information in electronic form to do with the services and functions of the authority that is neither the product of analysis or interpretation, nor an official statistic and has not been materially altered”. (Section 102 also inserts new sections 11A and 11B relating to other aspects of dataset provision; but they are immaterial for our purposes.) It seems that although Mr Capewell initially sought to rely on these provisions before the Upper Tribunal he eventually decided not to pursue the argument. Judge Williams did, however, examine them in some detail, and at para. 40 of his decision he observed that section 102 showed “that there is seen by Parliament to be a gap in the present legislation that Parliament found it necessary to deal with by amendment to section 11”.

Hansard. At the Committee stage in the House of Lords Lord Lucas proposed an amendment, no. 82, to the clause of the Freedom of Information bill (clause 10) which became section 11 and was in the terms eventually enacted. The amendment would have substituted for the phrase “in permanent form or in another form acceptable to the applicant”, which he said was insufficiently clear, a provision for the information to be provided “in a form specified” by the applicant. Proposing the amendment in a debate on 17 October 2000 he said, among other things:

“If I wanted information in electronic form, as I would do, I should – we all should – be able to expect electronic information under an internet government. I do not want to be fobbed off with a paper copy that I can make no good use of. It is quite reasonable to ask for the information in electronic form.”

Lord Falconer of Thoroton, for the Government, responded as follows:

“The intention of Amendment No. 82 is to ensure that an applicant should always be able to require that information is supplied to him or her only in his or her preferred format, to include electronic format – which I believe is what the noble Lord, Lord Lucas, has particularly in mind. The major way of seeking to achieve that is to delete the words "in permanent form". But that makes no difference to the construction of the provision. If those words are deleted, the right of the applicant is to have the material provided to him in a form that is acceptable to him so far as is "reasonably practicable". Getting rid of the words "in permanent form" would not change that at all; even if they remained in the provision, the right would be the same. So there is no real difference between the Government and the noble Lord, Lord Lucas, in that respect.”

The effect of that answer is that the amendment is unnecessary because the bill as drafted will ensure that an applicant can choose to have the requested information provided “in his or her preferred format, to include electronic format”: it seems that Lord Falconer believed that it had that effect because the words “acceptable to the applicant” gave the applicant the right to specify the form in which the information was provided. It was Mr Innes’s contention that the Minister’s statement precisely covers the present case, but Judge Williams regarded it as inconclusive.

Mr Innes’s essential point is that as a matter of ordinary English a request for information to be provided in a particular software format is a request for it to be provided in a particular “form” and thus that it falls naturally within the language of section 11 (1) (a). The word “form” is very general and there is no warrant for adopting a restrictive construction. On the contrary, allowing it to cover such matters as software format leads, he submits, to a sensible result and one which promotes the underlying objective of the Act that information should be made as accessible as possible to members of the public. No unreasonable burden is placed on public authorities, since they can always invoke section 11 (2) if it is not reasonably practicable to comply with such a request. If public authorities are allowed to provide information in the form of their choice, that leaves them free to supply it in a form which is positively obstructive and unhelpful – as, he says, occurred in the present case, where it would have been perfectly easy for the Council to provide Excel files. Mr Innes submitted that Lord Falconer’s answer in the debate set out above showed that he regarded the concept of “form” as including “format”.

Mr Capewell’s position was, unsurprisingly, that adopted by the Commissioner in the decision under challenge – that is, that the choice as to the “form” in which information was supplied which an applicant enjoys under the section connotes a choice between, essentially, hard copy on the one hand or electronic on the other. He submitted that the particular software format in which information was supplied was not an aspect of its form; rather, it constituted the way in which information was arranged. He submitted that that was essentially the reasoning of the Upper Tribunal, which he endorsed. He submitted that the Hansard extract relied on by Mr Innes was at best ambiguous and did not satisfy the requirements of Pepper v Hart [1992] UKHL 3, [1993] AC 593.

I have not found this point at all easy. The essential starting-point is of course the language of the statute. Although the argument before us, as below, appeared to proceed on the assumption that the purpose of section 11 was to give applicants a choice of the “form” in which information is supplied, the only question being what that meant, it does not seem to me as straightforward as that. The subject-matter of section 11 is not the form in which the requested information is supplied but the “means” by which it is communicated. Three kinds of “means” are identified, namely (to paraphrase) – (a) to be provided with a copy of the information; (b) to be given the opportunity to inspect it; and (c) to be given a digest of it. Those options do not have anything to do with the form in which the information is to be supplied in the sense which is in issue in this case. The concept of “form” only comes up in the context of the distinction – relevant only to options (a) and (c) – between “permanent form” and “another form”. “Another” can only mean “other than permanent”, and I will where convenient use “non-permanent” as a synonym. Two questions then arise – (1) what kinds of “copy” are to be regarded as permanent and non-permanent; and (2) whether the phrase “acceptable to the applicant” qualifies both “permanent form” and “another form” or only the latter.

As to (1), Mr Capewell submitted that copies (or digests) of information in “permanent form” means hard copy, i.e. in practice documents on paper, and copies (or digests) in “another form” meant copies provided in electronic form. I find that unconvincing: in what sense is a disc or even an e-mail attachment less “permanent” than paper ? The natural meaning of communication in non-permanent form would seem to me (subject to one point) to be communication by word of mouth. I note that the Commissioner in his current Guidance on Means of Communicating Information says (at para. 22):

“The reference in section 11 (1) (a) to receiving a copy of the information in “another form acceptable to the applicant”, rather than in “permanent form”, implies that a requester could ask for a verbal response, such as a telephone call or a meeting, rather than a written response. This is unlikely to arise very often, but if the requester does ask for this then we would advise the public authority to keep a written record of the conversation and the information that they provided, so that in the event of any complaint they can demonstrate that they have met their duty under section 1 to provide the information requested.”

The qualification referred to above is that it is awkward to speak of providing a “copy” of information in the context of an oral communication. But that drafting awkwardness must, I think, yield to the natural meaning of “permanent”.

As to (2), Mr Capewell submitted that “acceptable to the applicant” qualified both “permanent form” and “another form”. That does not seem to me the natural reading. The phrase “in permanent form or in another form acceptable to the applicant” naturally falls into two parts separated by “or”, and with the word “form” appearing in both parts: if the final words were meant to qualify both the phrase ought as a matter of syntax to read “in a permanent or other form acceptable to the applicant”.

It would follow from that reasoning that Mr Innes’s complaint is ill-founded, for the straightforward reason that the Council’s only obligation was to provide him with a copy of the information requested in permanent form, which it did. What he seeks is the right to choose – so to speak – the form of permanent form in which the information is provided, but the Act gives no such right.

I have been tempted to stop there and conclude that the appeal should be dismissed on that basis; but I have to recognise that my approach appears to be heterodox. If it is correct, not only can an applicant not choose in what software format the information is provided but nor can he choose whether it should be provided in hard copy or electronic form: both are “permanent”, and the Council will discharge its obligation by supplying either. That does not represent the Commissioner’s position. Both in his original decision and in the submissions made by Mr Capewell he has accepted that an applicant who requests a copy of information in permanent form has the right also to choose as between paper and electronic communication. It is also inconsistent with what Lord Falconer told Parliament (see para. 28 above) and with the view, albeit obiter, of the Court of Session (see para. 26) on the substantially equivalent provisions of the Scottish Act. That is an impressive consensus. It can also fairly be said that, putting aside the particular issue before us, given the overall philosophy of the Act Parliament is unlikely to have intended a situation in which authorities were entitled to supply information in hard copy to an applicant who had requested an electronic copy or vice versa.

In the light of those considerations I have, not without some unease, concluded that section 11 (1) can be construed as entitling an applicant to request more than simply “permanent” or non-permanent. I can hardly say, in the light of the views referred to above, that my own preferred reading of section 11 (1) is unambiguously correct, and this seems to me one of the rare cases in which the Pepper v Hart criteria are satisfied: the Minister did in the passage which I have quoted make a clear statement directed to the very question of whether an applicant is entitled to request information in hard copy or electronic form. (I should make it clear that this is a different question from whether his answer helps on the actual issue in this case – as to which see para. 43 below.)

I thus finally come back – after an entirely self-imposed detour – to the question to which the parties’ submissions were principally directed, namely whether an applicant’s right to choose to have information provided to him in electronic form extends to a right to choose the software format in which it is embodied. On this aspect too I have not found the decision entirely easy, but on balance I prefer Mr Innes’s submissions. My reasons are as follows.

The starting-point is that it seems to me a natural use of English to describe the software format in which a copy (or digest) of the requested information is provided as an aspect of its “form”. Mr Capewell sensibly eschewed the suggestion that there was a necessary verbal distinction between “form” and “format”; but the distinction which he advanced between the “form” in which information is provided and the way in which it is “arranged” does not seem to me to be any more clear-cut. Once it is accepted that an applicant can require provision of information in electronic form it seems to me only a small step to hold that he can also choose the format in which that electronic information is provided: the one naturally follows from the other. It is worth considering the case of information which will be embodied in text (i.e. rather than numbers): it would in such a case be rather unusual for an applicant to say “can I have it in e-format ?” rather than, say, “can I have it as a Word document ?”. It is true that a software format such as Excel is more than simply a means of presenting information: it enables the recipient of the information, if he or she himself has the appropriate software and licence, to do things with it. But I do not think that that feature means that the format cannot be described as an aspect of the “form” of the information. After all, the same is true, even if the functions are more familiar (at least to lawyers), of word-processing software: if information is provided in the form of text embodied in, say, a Word document it can be edited and copied in a variety of ways which facilitate its use.

Such a reading fits, as Mr Innes says, with the apparent philosophy of the Act. Citizens are given the right of access to public information at least in part so that they can make use of such information. A construction of the Act which makes it easier for them to do so effectively is to be preferred.

Conversely, it is hard to see any policy objection to a construction which enables an applicant to specify a preferred software, and Mr Capewell did not advance one. If an authority is asked to provide information in a software format in which it is not already held (or into which it cannot readily be converted (Footnote: ²)) it would be entitled to seek to rely on the reasonable practicability qualification; I doubt if it was part of the purpose of the Act to oblige authorities to input information into a spreadsheet when it does not already exist in that form (though that was not of course the case here). The authority could likewise invoke the reasonable practicability qualification if the provision of information in the way sought would be inconsistent with the licence governing its use of particular software (Footnote: ³).

Various other – more or less plausible – kinds of request that applicants might make about the “form” in which information might be requested were canvassed in oral submissions, but I see no value in discussing them here. My conclusion in this case is specific to the issue of software format.

As will appear, I have reached that conclusion without reference to the various materials which the parties sought to rely on as aids to the construction of the statute. I have not found these helpful. I will address them briefly.

So far as Mr Innes’s reliance on Hansard is concerned, Lord Lucas’s amendment was concerned only with the right to choose to have information presented in electronic form, as opposed to hard copy, and not with the question of software format, and Lord Falconer’s response cannot be regarded as directed to that question (though I have of course relied on it for a different purpose at para. 36 above).

The same applies to the passage from the opinion of the Court in the Glasgow City Council case relied on by Mr Capewell and the Upper Tribunal: the Court was not concerned with the issue before us, and Lord Reed’s observations cannot be treated as expressing any view about it.

As for the 2012 Act, Mr Capewell did not attempt to revive the point before us, but I should say something about it because it was referred to, albeit not centrally, in the reasoning of the Upper Tribunal. It may be, as Judge Williams thought, that the effect of the construction of section 11 (1) which I favour means that the rights granted by the new sub-section (1A) were to some extent already available under the old Act, although I should emphasise that we were not taken through the new provisions. But even if that is so it can cast no light on the meaning of the earlier Act. The new provisions provide a self-contained code in relation to datasets, which the Government regarded as desirable in its own right, and the promoters of the bill may have taken no view on the extent of any overlap with the original Act. Even if they did, it would hardly be surprising if they thought it safer to accept the Commissioner’s view that the Act conferred no right on applicants to require the provision of information in a particular software format; but it does not follow that they were right to do so.

As noted above (see para. 14), Mr Innes’s request for the information which he was requesting to be provided in Excel format was made about a fortnight after his request for the information itself. The First Tier Tribunal found that that meant that the request was not made “on making his request for information”, within the meaning of section 11 (1) and was ineffective for that reason irrespective of the answer on the substantive issue (see para. 26 of its Reasons). In the Upper Tribunal Judge Williams agreed. At para. 58 of his Decision he said:

“I do not therefore need to decide the related question about when Mr Innes raised the issue of the supply of the information in Microsoft Excel format. I agree with the respondents that Mr Innes made his specific request about the Microsoft Excel format too late. But I have dealt with the underlying issue of principle because it is always open to a requester to make a further request if the initial request does not succeed.”

Mr Capewell pointed out that Mr Innes had not sought to challenge the reasoning of the Tribunal on that point, but I do not think that we should on that account decline to consider whether it is correct. It had been argued in both Tribunals and Mr Capewell was in a position to deal with it.

In my view the natural meaning of the phrase “on making his request for information” is indeed that the expression of a preference under section 11 (1) about the means by which the requested information is to be provided must be made at the time of the original request. I see no reason to strain for a looser meaning. An authority is obliged to respond within the fairly tight timetable prescribed by section 10 of the Act (see para. 4 above). It should therefore take steps to comply with the request for information very soon after it is received, and if there has been no request under section 11 (1) it will have to decide for itself which means of communication to adopt: it may decide to make copies of the information under head (a), and to do so in a particular form, or it may decide to prepare a digest of the information. It would be quite wrong if, after such steps had been put in train but before the information had been finally provided, the applicant was entitled to require a different means of communication, which might require the authority to change course and render compliance with the statutory deadline impossible. No doubt in some cases there would be no real disruption because the work had not started or changing course would be straightforward, but that would not necessarily be so. The statutory timetable can only be made to work if any expression of a preference under section 11 (1) is contemporaneous with the making of the substantive request.

Thus far, therefore, I agree with both Tribunals. But that is not necessarily the end of it. We asked Mr Capewell why Mr Innes’s e-mail of 7 February 2010 – that is, for the information to be provided as Excel files – could not be treated as a fresh request for the same information, but this time including a section 11 request. He submitted that that was not a permissible construction: the e-mail clearly referred back to the original request. He said that the right course was for Mr Innes to make a fresh request for the information, incorporating the section 11 request from the start, which it was open to him to do. I think that that is too technical an approach. If Mr Innes had on 7 February said in terms “Sorry, I forgot to specify in my request of 20 January that I would like the information as Excel files – please treat that request as cancelled and treat this as a new request for the same information in that form”, there could be no question that that was a valid request, which would start the clock ticking as from 7 February. Yet that seems to me to be in substance the effect of what he did say (Footnote: ⁴). I can see that it might possibly involve some extra or wasted work for the Council, if it had already begun to prepare the information in one form, to have to put it into another; but that does not seem to me to be a basis on which the request could be refused. Section 14 of the Act relieves an authority from an obligation to comply with a vexatious request (see sub-section (1)) or a request which is identical or substantially similar to a request which has previously been complied with (until after a reasonable interval has elapsed) (see sub-section (2)); but neither of those provisions would apply in these circumstances.

I would therefore reject the submission that Mr Innes failed to make a proper section 11 request.

I would allow the appeal on the section 11 complaint. It is not, however, entirely clear what the practical consequences of such a decision, if My Lords agree with it, should be. The most straightforward outcome would be for the Council forthwith to supply the information sought in the form of an Excel file or files – if, that is, Mr Innes still wants the information after this lapse of time and is not content to rest on his victory in principle – and on the face of it Mr Innes is entitled to such an order. But it may be that there are practical difficulties, and I would give the Council 21 days from the date of this judgment to submit written representations if it seeks some different form of order, with Mr Innes (and the Commissioner if he wishes) having 21 days to respond.

The request with which we are here concerned is set out at para. 9 above. The Council’s response was to send Mr Innes the annotated screenshots described at para. 11. His essential complaint before us is that the screenshots, even as annotated, did not enable him to identify the “headers” denoting the fields by reference to which 11+ information was stored on the Council’s database; and that the Council was obliged, in accordance with its duty under section 16 (as amplified in the Code), to give him a list of the headers. As he put it at para. 6 of his skeleton argument:

“It is not possible to discern what the headers/fields of the DB are from these screen shots. In Request 1 and 2 above, I repeated the request for a list of headers with descriptions where necessary, in order that I could understand the scope of the information stored. The council declined to provide this support. Neither the council, the ICO or the first tier tribunal could explain how it was possible to discern the headers from the provided screen shots. The Tribunal and ICO have both treated the request for the headers/fields/description as a request for information, where in fact this was a clarification/scope request as per s. 16 COIA and paragraph 10 of the Code of Practice.”

At para. 13 he says:

“The information I am interested in is a data base (DB) related to 11+ testing in the Bucks area. The scope and extent of the information in the DB I do not know, and therefore I have requested to know what that information is in outline. This description may be in the form of headers or some other way that would give me an overview of what the information is. I cannot do this from the screen shots and I do not want an explanation of the screen shots as this is not what I am looking for.”

We do not have the terms of Mr Innes’s complaint to the Commissioner, and we do not therefore know how it was formulated. At para. 12 of the Decision Notice it is described as being that “the Council had not provided him with everything he had requested”. Consistently with that description, the Commissioner treated the complaint as being about non-compliance with the Council’s duty under section 1 of the Act; and he rejected the complaint, at paras. 25-26 of the Decision Notice, on the basis of a factual finding that the Council did not maintain a list of headers and accordingly did not hold any “further information within the scope of the request”. The Decision Notice makes no reference to section 16. Nevertheless, it appears that the Council’s response to the complaint did to some extent address the question of what it had done to assist Mr Innes. Para. 3 of the Decision Notice describes the screenshots as being “annotated to explain every field”. That might by itself be simply the Commissioner recording what the Council had told him; but it is in fact clear that he accepted what he was told. Para. 24 of the Notice reads:

“The Council has confirmed to the Commissioner that it has provided the complainant with screenshots to show everything it records in relation to the subject matter of this request, to provide the complainant with a list of these headers would be an improper use of its limited resources given that the information had already been provided to enable the complainant to produce his own list. The Council has re-iterated that it is happy to provide further explanation for any fields within these databases which the complainant does not understand.”

In ground 4 of his appeal to the First Tier Tribunal Mr Innes developed essentially the point summarised at para. 52 above, i.e. that the screenshots did not enable him to identify the headers/fields by reference to which information was held and that that was contrary to the Council’s duty to provide advice and assistance: there is no explicit reference to section 16 but para. 10 of the Code is invoked. The statement at para. 3 of the Decision Notice that “the screenshots were annotated to explain every field is described as “simply not true – a pure fabrication”: he says that he “simply cannot understand from the screen shots what does and does not correspond to the contents of [the database]”. He does not, however, go into any detail. Although the case is unquestionably put as a breach of the duty to assist, there is also a complaint that “the Council have not provided the recorded information requested”, which tends to suggest a breach also of section 1; and Mr Innes describes the Council’s claim, accepted by the Commissioner, that it had no list of headers, as “of course nonsense”.

The Commissioner responded in some detail, with submissions inter alia about the scope of section 16. Mr Innes lodged further submissions in rebuttal, but no new points are made beyond an invitation to the Tribunal to look at the screenshots, which would reveal that “many of the so-called fields have most certainly no annotations”.

The Tribunal was required to hold an oral hearing. The Commissioner and the Council asked to be excused from attendance and to rely on written submissions. Mr Innes objected but the Tribunal acceded to their request, and the Commissioner produced written submissions accordingly. In the event Mr Innes did not attend the hearing and the Tribunal proceeded in his absence. In its Reasons the Tribunal explained and justified the course which it took; but there is no objection to it on this appeal.

In its Reasons the Tribunal dealt with ground 4 as follows:

“29.

The Tribunal notes that [the Council] offered to assist the Appellant in interpreting the information provided in response to his first request. The Appellant now argues that the Second Respondent had a duty, arising from section 16 FOIA and the accompanying Code of Practice, to provide advice and assistance to help him with interpretation. The Tribunal notes that paragraph 10 of the Code refers to circumstances in which a request is ‘clarified’ and not to a request for assistance after the provision of the requested information. The Tribunal concurs with the decision of a differently constituted Tribunal in another appeal by the Appellant, in which it was stated that ‘… paragraph 10 of the Code is aimed at assisting Appellants in identifying the information that they wish to request and not at explaining the information that they have requested’.

30.

The Appellant has … argued that [the Commissioner] erred in finding that all the information covered by the first information request had been disclosed to the Appellant. This seems to be on the basis that he suspects that there is a list of headers which could also have been provided to him. The Appellant has not advanced any grounds upon which the Tribunal could make this finding of fact and the Tribunal notes that it could only overturn this aspect of the Decision Notice if it were satisfied that the First Respondent had erred in concluding on the balance of probabilities there was no more information which could have been disclosed to the Appellant. The burden of proof in persuading the Tribunal that this state of affairs was more likely than not to exist rests with the Appellant and the Tribunal finds that he has not discharged that burden. The Tribunal accordingly finds against the Appellant on this ground.”

As noted above, in the Upper Tribunal Judge Williams did not deal with this issue because he believed that it gave no rise to issue of law. Whether or not he was right to take that course does not ultimately matter, since the question is whether the First Tier Tribunal was right to dismiss the appeal against the decision of the Commissioner.

My initial view, expressed in the version of this judgment circulated to the parties in draft, was that Judge Williams was right to treat this issue as a pure dispute of fact. Having considered further written submissions from Mr Innes, I accept that that approach is over-simple. However, I remain of the view that the appeal on this issue should be dismissed. My reasons are as follows.

In my view the Commissioner was wrong to treat Mr Innes’s requests of 29 and 30 October 2009 as falling under section 1 of the Act. I am reluctant to be too critical of him because we do not know how the complaint was formulated; but, with the benefit of the argument which we have heard, it seems to me clear that on a fair reading of those requests Mr Innes was not asking whether particular information existed, or to have it communicated to him, but for assistance in formulating a request; and, as I have said (see para. 10 above), it was in fact common ground before us that that is the correct analysis. However, the section 16 point was explicitly considered in the First Tier Tribunal, and the real question for us is whether its decision was wrong.

As to that, although again I would not wish to be too critical of the Tribunal, which did not have the benefit of oral argument, I have to say that I find its reasoning unsatisfactory. Para. 29 of its Reasons proceeds on the basis that what Mr Innes was seeking was assistance in explaining information which he had requested and which had been provided. I agree that that falls outside the scope of section 16, but I do not think that it was what Mr Innes was doing: the screenshots were not “information” supplied under section 1 but a response to his request to be told what headers/fields existed. Para. 30 repeats the same error as the Commissioner in treating the request as being made under section 1 and thus as capable of being answered by a finding that the “information” did not exist.

However, it does not follow that the appeal should be allowed. It is in my view clear that on the material before it the First Tier Tribunal could not properly have found a breach of section 16 on the part of the Council. Mr Innes’s request was, in essence, to be told the fields/headers by reference to which information was held on the database. There is a finding of fact, explicitly upheld by the Tribunal and unchallengeable on appeal, that the Council did not have a list of those headers. Instead it sent Mr Innes the annotated screenshots. It maintained, and the Commissioner accepted, that the annotations “explained every field”. Mr Innes disputed the truth of that; but his submissions did not condescend to particulars, and he did not attend the hearing in order to amplify the respects in which they were defective. I need not myself express a view, since the only role of this Court is to see whether the Tribunal made any error of law, but I should say (to put it no higher) that it is far from self-evident that the screenshots do not identify the fields by reference to which the information is held. I do not see how in those circumstances the Tribunal could have overturned the Commissioner’s conclusion. Further and in any event, the Commissioner had found that the Council was “happy to provide further explanation for any fields within these databases which [Mr Innes] does not understand” (Decision Notice, para. 24); and the Tribunal acknowledged that offer at the start of para. 29 of its decision. If the annotations were in some particular respects inadequate I see no reason why that offer would not satisfy the Council’s duty under section 16.

I would accordingly dismiss the appeal as regards the section 16 complaint.

I agree.

I also agree with the conclusions reached by Underhill LJ. I would not myself have been disposed to hold that non-permanent means only communication by word of mouth since an electronic communication is, in common parlance, at least less permanent than paper and can appropriately be described as “another form” in contradistinction to “permanent form”. But this does not matter since my Lord has resisted the temptation to decide the appeal on that basis.

I further agree that the question of construction raised by this appeal is not assisted by references to Hansard or by the decision of the Court of Session in the Glasgow City Council case.

To my mind the words of section 11(1) of the 2000 Act are not intended to give the person requesting information only a choice between being provided with the information in permanent form or being provided with the information in another (non-permanent) form. That would be a restriction on the requester’s ability to say what was or was not acceptable which would be surprising to find a statute intended to open up channels of information in bureaucracies which had hitherto been closed. The protection afforded to the public authority is that it is only required to give effect to that preference “so far as reasonably practicable”.