s.21(1), 21(2)(a) & (b)

Reg 6(1)(b)

Issue Reasonably accessible information
Line to take:

The phrase ‘reasonably accessible’ under s21 refers to whether the applicant can reasonably obtain all the information to which s21 has been applied.  It does not refer to whether the applicant can access a reasonable proportion of the information to which the exemption has been applied.

Further Information:

Section 21 of the FOIA states as follows:

“21. – (1) Information which is reasonably accessible to the applicant otherwise than under s.1 is exempt information”.

In the case of Colin P England v London Borough of Bexley, the complainant asked for the addresses of empty properties in Bexley, the reasons why the properties were empty and other information about the properties’ ownership.  The Land Registry holds details of land ownership for registered but not unregistered land and around 30% of land is unregistered.  Thus whilst it would be reasonable to expect the complainant to approach the Land Registry, he would not be able to obtain all the information he had requested in this way.    

The issue before the Tribunal was whether the fact that 70% of the information requested was available meant that the information requested was reasonably accessible or whether all the information had to be reasonably accessible.

One dissenting member of the Tribunal agreed with the decision notice in finding that the requested information was reasonably accessible to the complainant because “…in section 21 the word ‘reasonably’ qualifies the ‘accessible’…” (para 113).   

However, the majority decision of the Tribunal found that:

“…in the majority’s view, ‘reasonably accessible’ applies to the mechanism that any applicant has available to him or her to obtain the information.  We do not interpret the section as stating that a public authority has no obligation to provide information where a reasonable amount of that information is available elsewhere…” (para 113).

The Commissioner now considers that the approach taken by the majority is the correct one.  Thus, s.21 can only be claimed where all the information to which s21 has been applied is reasonably available to the complainant and any investigation will consider how reasonable it would be for the complainant to access all the information to which the exemption has been applied.  

Environmental Information Regulations

The Commissioner considers that the above approach may be useful only insofar as specifically interpreting the “…already publicly available…” element of Regulation 6(1)(b) but this should not be read across to other aspects of Regulation 6 (see LTT119).  

Source Details
IT Colin P England / London Borough of Bexley (10 May 2007)
Related Lines to Take
LTT25, LTT26, LTT119
Related Documents
EA/2006/0060 & 0066 (England),
Contact HD
Date 27/09/2010 Policy Reference