What is meant by “reasonably practicable”?
The duty under s11(1A) to provide the dataset in an electronic form capable of re-use is not absolute. You are only required to do so “so far as reasonably practicable”.
What’s “reasonably practicable” is about the form in which you provide the dataset. It’s not whether it’s reasonably practical to provide the information at all.
There is no definition of “reasonably practicable” in the dataset provisions, but section 11(2) assists in understanding the term.
11(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.
Section 11(2) makes it clear that cost may be a relevant factor. This means you can take account of the cost of converting the dataset into a re-usable form. But you cannot take account of the costs you would have to incur to comply with the request anyway, regardless of whether the information happens to be in a dataset. Therefore, the costs of initially locating, retrieving or extracting the information are not relevant to this calculation. If you are concerned about these initial costs, you should instead consider whether the cost of complying with the request would exceed the appropriate limit under section 12 of FOIA.
Under s11(2), you may “have regard for all the circumstances”. Our approach to this is that you should consider the circumstances relevant to providing the data in a re-usable format for the current request. You should not consider whether providing it in a re-usable format may encourage similar requests in the future. Our approach is based on the following case:
Example
The case of Independent Parliamentary Standards Authority [IPSA] v the Information Commissioner and Ben Leapman, EA/2012/0242 29 April 2013 touched on the issue of whether it was reasonably practicable to provide the information (in this case, copies of invoices) in the form requested. IPSA argued that it was not reasonably practicable to provide the information in the requester’s preferred form. Their argument was due to the anticipated cost of having to do the same in response to other similar requests in future.
The First-tier Tribunal said at paragraph 28 that they “had no doubt whatsoever that the true construction of section 11 allowed only regards to ‘all the circumstances’ of a particular application”.
The First-tier Tribunal described this as an ancillary issue in that case. However, their comments suggest that you cannot use the future cost of providing datasets in a re-usable form to argue that it is not reasonably practicable to provide it in the first place.
In some cases, it will be straightforward and involve little to no expenditure to convert a dataset to an open format such as CSV. However, in others it may be a more complex operation. If the dataset is very large or held in a proprietary system, converting it to an open format may involve significant expenditure on purchasing additional software or paying an expert to write a program. The size and resources of your organisation may be relevant here. If you are a large public authority, you may be in a better position to undertake this work compared to a very small authority. However, if you are a large public authority with a national coverage, you may be handling sizeable datasets that are expensive to convert.
Even if converting the dataset would involve significant expenditure, you may decide that making it available and re-usable is a worthwhile investment in the spirit of open data. On the other hand, if the request’s scope is very limited and you are planning to publish more comprehensive information as open data, you may decide that it is not reasonably practicable to convert the requested information to an open format.
You may also have situations where you need to heavily redact a dataset, eg to remove exempt personal information, and what’s left has only limited value. The requester is still entitled to receive this under FOIA. However, if converting it to a re-usable form would involve substantial cost and effort, you could argue it’s not reasonably practicable to do so.
Apart from cost considerations, there may also be cases where technical issues make it impracticable to convert the data from a proprietary to an open format.
What is reasonably practicable is a decision for you to make, taking account of all the circumstances of the case. This includes the purpose of the legislation, which is to promote open data. If you decide that it’s not reasonably practicable to provide the information in a re-usable form, the requester can ask you to review your decision. If they are not satisfied with the review, they can complain to us.