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An organisation is allowed to count time spent on errors in calculating when it can refuse a Freedom Of Information (FOI) Act request, the Information Tribunal has ruled.

FOI legislation says that public bodies must give people the information they ask for in an official request. They are allowed, though, to refuse the request once it has become too costly based on a formula of man hours used to find the information. Currently, an organisation can refuse a request if it estimates that it will take more than 18 hours to fulfil.

The Information Tribunal has now said that an organisation which uses up those hours based on a misunderstanding of the original request can legitimately count them towards the total used as the basis of a refusal.

The Information Tribunal is the appeals body for rulings by FOI watchdog the Information Commissioner's Office. It ruled in a case brought against the NHS Trust in South Essex by a Mrs B Francis.

Francis had requested information about treatment that her son received in a number of hospitals before his death in 1998. The Trust sent her some, but not all, of the information she asked for. Some it could not find and some it withheld, believing it to be the subject of legal privilege.

The Information Commissioner applied a public interest test to the legally privileged information and said that it was not in the public interest for that privilege to be overruled.

"We accept that Mrs Francis has a great personal interest in information relating to the circumstances in which her son died, but that is not the same as the public interest in those circumstances, which has been largely satisfied," said the original decision on 21 July 2008.

The Tribunal reserved one aspect of the case for further discussion and negotiation. It became clear during last year's hearing that the NHS Trust had misunderstood the meaning of one of Francis's requests for information.

The Trust agreed to go back and search for the relevant information in the light of its new understanding. It did, and disclosed everything that it found, but could not find occasional missing pages.

The Trust explained some administrative reasons why some pages might be missing but said that it did not want to search further because the case had used up more than the amount of time the Trust was required to dedicate to it under law.

The Information Commissioner's Office produced a draft decision notice which said that this was a reasonable position, though Francis objected to that. She said that the time limit should not apply because the Trust had not dealt with the request properly in the first place.

"We can understand Mrs Francis’ frustration that the limit set by section 12 should remove the need for the Trust to make further attempts to locate documents, but that is not a matter for us to take into account," said the Tribunal's new ruling. "The limit was set by Parliament and the Trust are fully entitled to rely on it."

"They have in any case substantially exceeded the limit and as a public body they have other demands on their resources. That they did not initially comprehend the request, and therefore did not address it properly, does not prevent them relying on the limit now," it said.

"The limit in section 12 applies to the request as a whole, not separately to its constituent parts. As a result of the Trust’s further searches, Mrs Francis has received some further documents," it said.

See: The new ruling (4pg/34k pdf) July's ruling (13pg/53kb pdf)

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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