Tribunal rules on adequacy of searches in FOIA request case
Introduction
Jeremy Yallop v The Information Commissioner is a decision of interest within UK information rights law, particularly pertaining to public authorities’ obligations under the Freedom of Information Act 2000 (FOIA). The case underscores the standard for adequate searches for requested information and the responsibilities of the Information Commissioner in assessing such searches. This article provides a detailed analysis of the First-tier Tribunal’s handling of the appeal brought by Jeremy Yallop against a decision of the Information Commissioner regarding a request for information to the Office for Standards in Education, Children’s Services and Skills (Ofsted).
Key Facts
The case stemmed from a request for information made by Jeremy Yallop concerning evidence mentioned by the Her Majesty’s Chief Inspector (HMCI) in a letter to a committee. Ofsted’s response to Yallop indicated that they could not locate a record of such evidence which they described as ‘anecdotal’ and therefore did not systematically record. Yallop contested this, asserting that a reasonable search would include inquiring with HMCI Amanda Spielman. The Information Commissioner upheld Ofsted’s decision, suggesting that recorded information within the scope of the request was not held. However, Yallop appealed to the First-tier Tribunal.
Legal Principals
The Tribunal’s analysis was principally focused on the interpretation and application of Section 1(1) of the FOIA, which entitles an individual to information held by a public authority specified in a request and the conditions under which the Commissioner can accept an authority’s assertion that it does not hold information. On appeal, the Tribunal applied several legal principles:
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Balance of Probabilities: Whether information is held at the time of the request is determined on this standard.
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Adequacy of Searches: Public authorities must conduct appropriate and reasonable searches in locations where the information, if it existed, would likely be found.
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Use of Staff Expertise: A reasonable search may entail using the knowledge and expertise of staff to locate the recorded information, not limited to using recorded information alone.
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Obligations Under FOIA: The information requested under FOIA must be recorded, but the process of searching for this information can include asking individuals for assistance to locate the relevant recorded information.
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Tribunal’s Discretion: The tribunal has discretion to review decisions of the Commissioner, receive fresh evidence, and make factual findings.
In this case, the Tribunal scrutinized Ofsted’s search process and the Commissioner’s rationale for deeming it sufficient. The Tribunal referenced previous tribunal decisions, including Bromley v Information Commissioner & the Environment Agency (EA/2006/0072) and Oates v Information Commissioner (EA/2011/0138), which reinforced the principles around the adequacy of searches and the obligations of the Information Commissioner.
Outcomes
The First-tier Tribunal allowed the appeal, concluding that the Information Commissioner’s Decision Notice was not in accordance with the law. The Tribunal directed Ofsted to undertake a further search for the requested information, specifically instructing them to inquire with HMCI Amanda Spielman and her office or support staff. The Tribunal did not find that Ofsted certainly holds the information but ruled that there was insufficient evidence to support Ofsted’s claim that it did not, given the scope of their searches.
Conclusion
The case Jeremy Yallop v The Information Commissioner emphasizes that public authorities must conduct thorough searches when handling FOIA requests, which may include inquiring with individuals who may recall the source of requested information. The Information Commissioner is obligated to critically assess the adequacy of those searches before concluding whether the information is held. This case serves as a precedent on the expectations and standards for searches by public authorities under the FOIA, and affirms the Tribunal’s role in ensuring that the Commissioner’s decisions comply with legal requirements.