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Information accessible to the applicant by other means (section 21)

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26 June 2023 - We have:

About this detailed guidance

This guidance is written for use by public authorities. It discusses in detail the application of the section 21 exemption, which removes information accessible to an applicant by another route from the section 1 right of access under the Freedom of Information Act (“FOIA”). Read this detailed guidance if you have questions not answered in the Guide.

This guidance does not apply to requests for environmental information. There is no direct equivalent to section 21 under the Environmental Information Regulations (“EIR”) 2004.

Obligations under other pieces of legislation, such as the Equality Act 2010, may be relevant when applying section 21 of FOIA.

In detail

What does FOIA say?

21 Information accessible to applicant by other means.

(1) Information which is reasonably accessible to the applicant otherwise than under section 1 is exempt information.

(2) For the purposes of subsection (1) —

(a) information may be reasonably accessible to the applicant even though it is accessible only on payment; and

(b) information is to be taken to be reasonably accessible to the applicant if it is information which the public authority or any other person is obliged by or under any enactment to communicate (otherwise than by making the information available for inspection) to members of the public on request, whether free of charge or on payment.

(3) For the purposes of subsection (1), information which is held by a public authority and does not fall within subsection (2)(b) is not to be regarded as reasonably accessible to the applicant merely because the information is available from the public authority itself on request, unless the information is made available in accordance with the authority’s publication scheme and any payment required is specified in, or determined in accordance with, the scheme.

The overall purpose of section 21 is to remove information which an applicant can access via another route from the general right of access under section 1.

Section 21 is an absolute exemption. Once you are satisfied that the information is accessible to the applicant – via another access regime, your publication scheme or when the information is otherwise reasonably accessible – you do not need to consider the public interest balance.

Section 21 does not include the exclusion from the duty to confirm or deny. This means that:

  • To rely on section 21, you must first establish if you hold for the purposes of FOIA the information as described in the request. You cannot claim the section 21 exemption based on theoretical considerations about whether or not you hold the requested information or information of the same type.
  • You must respond to the applicant to confirm or deny holding the requested information. If you do hold it, you must explain why section 21 applies. You should also inform the applicant where and how they can obtain the information.

If you need more guidance about establishing if you hold the information for the purposes of FOIA, please read our guidance on Information you hold for the purposes of FOIA.

If you need more information about writing your refusal notice, please read our guidance on Refusing a request: writing a refusal notice (section 17).

You cannot rely on section 21 when you believe the requested information engages another exemption in Part II of FOIA. If another exemption applies, that means the information is not accessible. Consequently, section 21 cannot apply.

Is the requested information reasonably accessible to the applicant?

To engage the section 21(1) exemption, you must assess if the requested information is reasonably accessible to the applicant. This means accessible other than through a request for information under section 1 of FOIA.

The use of the expression “to the applicant” sets section 21 apart from other exemptions in Part II. Under subsection 21(1), the word “reasonably” qualifies accessible. This means that, unlike other exemptions in Part II of FOIA, section 21 requires you to take into account the applicant’s specific circumstances. This applies unless you can demonstrate that section 21(2)(b) or section 21(3) are relevant. The test of “reasonable” accessibility under section 21(1) depends on the specific circumstances of that particular applicant.

Effectively, section 21 draws a distinction between information that is available to the general public and information that the applicant can reasonably access outside of FOIA.

The requested information may be accessible elsewhere. However, before applying section 21, you must consider if the applicant can actually and reasonably access the information they requested. This also means you need to direct the applicant to where they can find the information. For example, you need to indicate where in the public domain the applicant can access the information or explain what existing alternative access regime is available to them.

If the information is only accessible by inspection, including under a different piece of legislation, you must consider if it is actually reasonably accessible to the applicant before you can rely on section 21 to refuse the request.

Example

In Costello v Northamptonshire County Council and Information Commissioner (EA/2011/0291, 3 July 2012), the First-tier Tribunal (‘FtT’) found that the authority was not entitled to rely on section 21 because the information was not in fact accessible to the applicant due to their personal circumstances.

The applicant had requested a copy of the information.

The council responded that the information was available for inspection and refused to supply a copy by relying on section 21.

During the Commissioner’s investigation, the council explained that the applicant did not live far from the council’s premises and had not experienced issues visiting in the past.

However, during the hearing, the applicant argued they could not make an appointment to inspect the document on a working day. This was because their place of work was far away from the council’s office.

Based on this evidence, the FtT concluded:

“we are not satisfied that the information requested was reasonably accessible to the Appellant and therefore consider that the exemption provided in section 21 of FOIA is not engaged.” [para. 26].

When considering if information is reasonably accessible, remember any obligations you have under other pieces of legislation, such as the Equality Act 2010 and the Welsh Language (Wales) Measure 2011.

In what circumstances can we rely on section 21?

There are two circumstances in which you can automatically refuse a request made under section 1 by relying on the section 21 exemption.

These are:

  • Section 21(2)(b) – there is a legal obligation to make a copy of the requested information available to members of the public under other legislation; or
  • Section 21(3) – you are making the requested information available under your publication scheme.

If the above do not apply, you need to check if the requested information is reasonably accessible to the applicant via other means. You need to do this before you can rely on section 21 to refuse the request.

In most cases, deciding that the exemption applies is fairly straightforward. For example, you are aware that the information is reasonably accessible via sources in the public domain.

However, sometimes, you might be unclear about whether the information is genuinely accessible to the particular applicant. If this happens, you should do more than simply explaining to the applicant how they can obtain the requested information.

You cannot rely on section 21 if the requested information is part of a historical record preserved in The National Archives or The Public Record Office of Northern Ireland. This is by virtue of section 64 of FOIA.

In the following sections, we explain when section 21 is likely to apply. We also explain what we expect you to do to ensure you have considered reasonable accessibility to the applicant when you rely on this section.

Is the requested information in the public domain?

A common situation in which you can usually rely on section 21 by virtue of section 21(1) is when the information is available to the general public via sources in the public domain. Examples of public domain sources include:

  • websites;
  • open-access newspapers and journals; and
  • official reports available online.

This is because, if the information is realistically accessible to a hypothetical member of the general public via sources in the public domain, you can normally assume that the applicant – as a member of the general public – can also reasonably access the information.

However, you should always check that:

  • the information in the public domain matches the information as the applicant described it in their request, and
  •  the information publicly available is, in fact, accessible to them. As explained before, this is because the test of ‘reasonable accessibility’ is linked to the applicant’s particular circumstances.

For example, even though the information is available on your website, the applicant may not have reasonable access to the internet or there are special circumstances which make the information not reasonably accessible to them.

Therefore, when relying on section 21(1) to refuse a request on the basis that the information is publicly available, we expect you to show that:

  • the information in the public domain matches what the applicant asked for;
  • you have given precise directions to the applicant to enable them to find it without difficulty and without a great deal of searching necessary to locate it; and
  • you have considered the applicant’s particular circumstances of the applicant and you are satisfied that they can reasonably access the information.

Example

In Ames v. Information Commissioner and the Cabinet Office (EA/2007/0110, 24 April 2008), the Information Tribunal (now called First-tier Tribunal) decided that the public authority was not entitled to rely on section 21. This was because the information in the public domain did not match the description of the information the applicant had requested.

The Tribunal also noted that – even if that had been the case – the authority would not have complied with section 21 because they had not clearly signposted the applicant to where to find the information on the website link they had provided.

The applicant had asked for information about which officials had made changes to a draft of the executive summary of a dossier on Iraq’s weapons of mass destruction dated 10-11 September 2002.

The Cabinet Office (CO) had responded by providing a link to the website of the Hutton Inquiry. The authority explained that the evidence they provided to the inquiry referred to the drafting of the dossier. In their response, the CO also confirmed that they did not hold information about the staff who had amended the version of the executive summary draft dated 10-11 September.

On appeal, the Tribunal found that:

  • The CO had complied with its obligation to confirm or deny holding the requested information [para. 22].
  • Section 21 was not engaged in relation to the request as submitted by the applicant.

On this, the Tribunal said:

“Section 21 (read with sections 1 and 2) requires that the information requested is accessible by other means; it is not sufficient that there is other information (or evidence) accessible which is ‘relevant to the request’.” [para. 18, emphasis in the original].

Further, the Tribunal noted that – even admitting section 21 was engaged – it did not mean the information was ‘reasonably’ accessible to the applicant. The Tribunal said that [para. 19]:

“We are not at all sure that (…) it would be legitimate for the public authority to say to the applicant that the information is somewhere to be found on a large website (…). It may be different if the public authority were to provide a link or some other direct reference to where the requested information can actually be found.”

We have produced separate detailed guidance about Information in the public domain. This page gives you more information about what you should do to handle requests when information is already in the public domain.

Sometimes, the request is ambiguous and you might struggle to understand what the applicant is after. If you are unsure, you should ask the applicant to give you more details. You should do this before relying on section 21(1) by pointing to publicly available information which you believe could answer the request. This is also part of your duties under section 16 to provide advice and assistance to applicants. Giving assistance at an early stage can help you to clarify what an applicant is looking for and to decide if section 21 applies.

Example

In Oxford Phoenix Innovation Ltd v. Information Commissioner and The Governing Body of the College of All Souls of the Faithful Departed Oxford ('the College') (EA/2021/0227, 14 June 2022), which was resolved by agreement between the parties, the First-tier Tribunal said:

“[T]he content of the Consent Order demonstrates how early assistance in the formulation of the request and in identifying and understanding each other’s stand points would probably have resolved this appeal without the acrimony, effort, and cost to all concerned.” [para. 48].

In this case, the applicant wanted information about the aims of the College as a charity. However, they did not make this clear in the request. The College relied on section 21 to refuse the request and provided a link to the page on the website which explained the College’s general aims.

During the investigation, the Commissioner decided that the authority was entitled to rely on the exemption. He also established that the applicant could reasonably access the information.

During the hearing, the Tribunal commented that – on an objective reading of the request as the applicant had framed it – the College had applied the exemption correctly. However, it also went on to say that the parties could have resolved their dispute more swiftly “had more assistance been given in understanding what information was being requested at the outset” [para. 48].

 

You can also rely on section 21 in those circumstances where you placed the requested information in the public domain by previously making it available to the applicant in response to an FoI request.

Example

In O’Hanlon v Information Commissioner (EA/2019/0241, 4 March 2020), the First-tier Tribunal said that the applicant’s challenge to the authority’s reliance on section 21 was “devoid of logic” [para. 26].

This was because the applicant had already received the information in response to a previous FoI request.

The applicant had asked for a copy of the correspondence between the Information Commissioner’s Office (ICO) and an NHS Trust. This followed an information rights complaint they had made to the ICO about the Trust.

The Trust provided the requested information. However, they withheld part of the correspondence by relying on section 21 because they had already provided the applicant with this information in response to a previous FoI request.

The applicant challenged this on appeal. The Tribunal rejected their argument, concluding that “[S]ince Mr O’Hanlon has the documents he does not need to exercise a right under s1 in order to access them; they are already in his possession.” [para. 26].

If you keep a disclosure log of your previous responses to FoI requests and make this available in your publication scheme, you can also rely on section 21 by virtue of section 21(3). We explain more about the application of section 21(3) in the section Is the requested information available via your publication scheme?

Is only part of the requested information reasonably accessible to the applicant?

If only part of the information publicly available matches the description of what the applicant has asked for, you can apply section 21(1) to that part of the request. As usual, remember to check if the information is reasonably accessible to the applicant. You should then consider the remainder of the requested information separately.

As explained before, under section 21(1), the word “reasonably” qualifies “accessible”. This means that you cannot apply section 21 if you believe that a “reasonable” amount of information is accessible to the applicant via other means.

The Tribunal clarified this early on in the case below.

Example

In Colin P England and London Borough of Bexley v Information Commissioner (EA/2006/0060 & 0066, 10 May 2007), the Information Tribunal (now called First-tier Tribunal) decided that section 21 did not apply to the requested information. This was because the relevant test is whether the information is reasonably accessible to the applicant, not whether a reasonable amount of information was available to them.

The applicant had asked for information about vacant, empty or abandoned residential properties which the council knew about in the area.

During the Commissioner’s investigation, the Commissioner found that part of the requested information was accessible through the HM Land Registry. As a result, the Commissioner decided that section 21 applied.

On appeal, the Commissioner argued that the relevant test to apply was whether the information was “reasonably available”. Therefore, it was not necessary for all of the requested information to be available to the applicant to engage section 21 [para. 111].

The Tribunal rejected this argument. In a majority decision, the Tribunal concluded that [para. 113]:

“in section 21 the word “reasonably” qualifies the “accessible” and 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. If that were the case, public authorities would be able to provide incomplete information to applicants and it is likely that there would be arguments over what percentage of available information is considered to be reasonable. It also runs the risk of attempts to avoid the impact of the legislation by making non-contentious information in a particular class available and then seeking to claim section 21 in order to avoid disclosing contentious information, by arguing that a substantial amount of material is already available to the applicant.”

Is the requested information accessible to the applicant via another piece of legislation?

You can rely on section 21 when the information is available via a different piece of legislation in two circumstances.

The first circumstance is when the other piece of legislation gives a right of access to certain information to a particular class of people. This is by virtue of section 21(1).

When relying on section 21 on this basis, you should check that:

  • the requested information matches the information available via the other piece of legislation; and
  • the applicant belongs to the class of people who have right of access under that piece of legislation.

If these conditions are met, you can rely on section 21. This is because the information is available to the applicant outside of FOIA through access via other legislation.

Examples of this scenario include:

  • Under section 3(1) of the Access to Health Records Act 1990 (AHRA), executors, personal representatives and any person who may have a claim arising from a patient’s death have a right of access to the health records of a deceased patient.

    For instance, if an applicant asks you for the health records of a patient and you can demonstrate that they are entitled to the same information via the AHRA, you could refuse to provide the information under FOIA.
  • Each financial year, when they have finished preparing their accounts, local authorities must make them available for inspection for a period of 30 working days. Under section 26 of the Local Accounts and Accountability Act 2014 (LAAA), any interested person or any journalist can inspect the accounting records and any related document during this period. Section 25 gives additional rights to local government electors. The LAAA also gives the right to make copies of the documents available for inspection.

    When you receive a request under FOIA for this type of records, you could rely on section 21 if:
    • The applicant is an interested person or a journalist. An interested person is someone who has an interest in the local authority’s finances, whether direct or indirect. For example, a local resident paying council tax or a business-rate payer (eg shops and offices in the local area). The meaning of ‘journalist’ is defined in section 26(1A) of the LAAA.
    • The timing of the request under FOIA coincides with the inspection period, ie the 30-working-day period when local authorities must make the accounts available for inspection.

When you are relying on section 21 on the basis that the applicant belongs to a class of people who has right of access to the information via another piece of legislation, you must assess the extent to which the information is reasonably accessible to them via the alternative route.

Factors to consider are:

  • the procedural steps the applicant has to go through to obtain the information outside of FOIA,
  • the applicant’s personal circumstances when the information is only available via inspection,
  • timeframes for access.

You should also consider whether the alternative route of access places restrictions on sharing the information further.

When you disclose information to an applicant under FOIA, you are effectively placing that information in the public domain. Applicants receiving information under FOIA are free to share that information further, subject to any copyright restrictions which might apply to further use of that information.

Safeguarding this principle is a relevant consideration when you rely on the section 21 exemption in this scenario.

Equally, intellectual property rights do not act as a barrier to disclosures under FOIA. For more information about this, please read our detailed guidance on intellectual property rights and disclosures under FOI.

The second circumstance in which you can rely on section 21 because the information is available via other legislation is the one set out in section 21(2)(b).

Under this section, you can refuse to provide the information under FOIA when you or any other person – including another public authority – have a legal duty under the other piece of legislation to make the information available to members of the public upon request. You can also rely on this section if the information is only available on payment.

Contrary to the scenario examined above, for section 21(2)(b) to apply, the information must be available for access to the public at large. You cannot rely on this section when the alternative access regime allows access only to applicants meeting certain criteria.

The purpose of section 21(2)(b) is to ensure that FOIA is not used to circumvent specific conditions for access to certain information, including timeframes and any applicable fees regime, existing under another legislative framework.

Examples of when section 21(2)(b) is likely to be relevant include:

  • Access to register of licences granted to companies for the provision of air traffic. Under section 35(8) of the Transport Act 2000, the Civil Aviation Authority must supply copies of the register to members of the public who request it.
  • Access to a company’s register of members. Under section 116 of the Companies Act 2006, any member of the public can request a copy of the register by paying a fee. This is likely to be relevant if you are a public authority responsible for regulating companies subject to the Companies Act. If you receive a request asking about information included in a company’s register, you could rely on section 21(2)(b) on the basis that the information is accessible via section 116 of the Companies Act 2006.
  • Access to court records. Generally, there is no right of access to court records under FOIA. Section 32 is usually the most relevant exemption triggered by requests for these types of records. However, there are circumstances where you could use section 21(2)(b). For example, under rule 5.4C of the Civil Procedure Rules 1998 (‘CPRs’), any person has a right of access to a copy of certain documents such as a statement of case, a public court order or a judgement. People can only access statements of case if the case was filed after October 2006. The right of access under the CPRs applies only if certain conditions are met. These are set out in paragraph (3) and (4) of rule 5.4C. Applicants also need to pay a fee to obtain a copy of the documents. If you have received a request for this type of information under FOIA, you could refuse it by relying on section 21(2)(b). To do so, you need to show that the applicant has access under the CPRs, eg the relevant conditions under rule 5.4C are met.

    The CPRs also give access to more detailed records. For example, members of the public can request access to the case documents filed by the parties to the proceedings. However, the court has discretion whether or not to grant access to this type of information.

    Therefore, in this scenario, you cannot rely on section 21(2)(b). This is because the right of access to the information is subject to the court granting permission.

    If you are an authority likely to receive requests for this kind of records, you should assess each request on its own merits to determine if you can rely on section 21(2)(b) to refuse it under FOIA.
  • Access to birth certificates. Under section 33(1) of the Births and Deaths Registration Act 1953, members of the public can request a short certificate of a person’s birth from the General Register Office. This applies to records in England and Wales. Applicants have to pay a fee to have a copy of the certificate. Members of the public can normally request access also to other types of records such as marriage or civil partnership certificates. Similar provisions exist in Northern Ireland, where people can access this type of records from the General Register Office for Northern Ireland.

Example

In decision notice FS50515470, the Information Commissioner decided that the public authority was correct to rely on section 21(2)(b) of FOIA to refuse a request for information about deaths in the Lambeth area of London in 1900.

The applicant had requested had the information under FOIA from the Home Office.

The Home Office refused to supply the information under FOIA. This was because the applicant could request a copy of the death certificates from the General Register Office under the Births and Deaths Registration Act 1953.

The Commissioner decided that the authority was entitled to refuse the request under FOIA by relying on section 21(2)(b).

If any member of the public can obtain a copy of the information under other legislation, you can automatically apply section 21(2)(b). You do not need to consider issues of reasonable accessibility for the applicant.

However, if the legal obligation is only to make the information available for inspection, you cannot automatically rely on this provision.

When you make information available for inspection only – whether voluntarily or because of legal obligation – you must assess if the information is in fact reasonably accessible to the applicant.

In determining reasonable accessibility, you must provide advice and assistance to the applicant under section 16 of FOIA. Also, remember you may have obligations under other pieces of legislation such as the Equality Act 2010.

Examples of when you cannot automatically apply section 21(2)(b) include, but are not limited to:

  • Access to principal councils’ agendas and reports. Under the Local Government Act 1972 (Part 5A) and 2000 (section 97-98), principal councils must make certain documents available for inspection to members of the public before council meetings take place.
  • Access to building notice register. Under section 56(4) of the Building Act 1984, local authorities must make the register of building notices required for domestic alterations available for inspection to members of the public.
    The examples of alternative access regimes listed in this section are not an exhaustive list.

Are you making the information available under your publication scheme?

If you are proactively making the requested information available in line with your publication scheme, section 21(3) allows you to refuse an individual request made under section 1. This is because the applicant can access it via your publication scheme. If you are satisfied that section 21(3) applies to the request, you can automatically rely on the exemption. You do not need to consider the applicant’s specific circumstances.

The ICO takes the position that your ability to rely on section 21(3) depends on:

  • whether the information you are making available in the scheme matches the information the applicant asked for;
  • if you adopted the model publication scheme introduced by the Information Commissioner in January 2009. The model publication scheme sets out seven classes of information you must proactively make available to the public, and
  • if you are regularly publishing information in line with the scheme. If you are not preparing the information for routine release and regularly publishing it proactively, we cannot consider that the information is in fact accessible.

Example

In Ian Benson v Information Commissioner and the Governing Body of the University of Bristol (EA/2011/0120, 10 November 2011), the First-tier Tribunal upheld the Commissioner’s decision that information is to be considered as ‘reasonably accessible’ when the public authority makes it available in line with their adopted publication scheme.

The applicant had asked for a list of the email addresses of the university’s staff.

The authority refused to provide the information upon request by claiming section 21(3) on the basis that the information was accessible via its publication scheme.

During the appeal, the Commissioner argued that:

“as the University had adopted a publication scheme and the information requested was available in accordance with it, then the effect of s. 21(3) was that the information must be regarded as reasonably accessible, there being no discretion in the matter” [para. 9].

The Tribunal accepted this argument and concluded that:

“information which is available under the terms of a publication scheme is to be regarded as reasonable [sic] accessible”. [para. 13]

If you have not adopted the model publication scheme and are not publishing information in line with it, it is likely you are also in breach of section 19 of FOIA.

The ICO has produced separate sector-specific guidance on the type of information we expect you to make routinely and proactively available to the public under each class of information.

If you require payment for the information, you must indicate this in the scheme. For example, you should include a schedule of charges to clearly set out when you will charge and how much. If you fail to do so, you cannot rely on section 21(3). You will need to provide the information to the applicant under section 1.

For more information on setting charges for information you make available under your publication scheme, read our guide to charging for information in a publication scheme.

In exceptional circumstances, you can make some information in your publication scheme available only for inspection. In this situation, you must assess if the information is reasonably accessible to the applicant. If you can, you should consider supplying a copy. In practice, this situation should not happen very often. As explained, the default position is that you must proactively publish the information you are making available as part of your publication scheme. However, we accept that – sometimes – it is the nature of the information itself that can make this difficult. For example, certain information is difficult to prepare for routine release and you have no other option than making it available on inspection.

However, the key point is – if you are making some information in your publication scheme available only on inspection, you must clearly justify this position and assess reasonable accessibility for applicants.

The section 21(3) provision reinforces the principle that you cannot automatically refuse a request under section 21 of FOIA because the information is available elsewhere. There must a clear and structured mechanism through which the information is available. Your publication scheme is one such mechanism.

Are you making the information available on payment?

If you are charging a fee for the provision of the information, you could still apply section 21.

Section 21(2)(a) says that information may be considered reasonably accessible to the applicant even where it is only accessible on payment.

There are two circumstances in which you can rely on this provision:

  • You are making the information available under the terms of other legislation which allows you to charge a fee. For example, Companies House can charge fees under various statutory regulations for the inspection or provision of copies of documents about the registration of companies and partnerships. Likewise, the Civil Aviation Authority can charge a fee under section 35(9) of the Transport Act 2000 for supplying copies of the register of licenses.
  • You are making the information available in your publication scheme and you clearly indicated this in a schedule of charges advertised in the scheme. For example, you can charge for commercial publications such as journals and books you publish and advertise this in your publication scheme. If you are charging a fee for information you make available under other legislation, you could indicate this in your publication scheme. The ICO considers this good practice.

Even though you have published a schedule of charges, you should avoid taking a blanket approach to the charging of fees. For example, if the applicant has asked for a very specific and limited piece of information contained in a broader commercial publication you produced, you should provide the information under section 1. You should not expect the applicant to buy a copy of the whole publication as advertised in your scheme.

As explained in the section “Are you making the information available under your publication scheme?”, when you make information available in line with the scheme together with your schedule of charges, the information is considered accessible. This applies regardless of an applicant’s ability to pay the fee you are charging.

However, the ICO’s position is that you should balance the level of charges you apply with the principle of promoting and facilitating access to public information. We do not consider charging high fees for routine information as adhering to this principle because high fees can be a barrier to access for applicants. This is particularly true of applicants from disadvantaged backgrounds or economically vulnerable groups.

For further information on this, read our guide to charging for information in a publication scheme.

Further reading