Interpreting and clarifying requests under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR)
About this detailed guidance
This guidance discusses how and when you should interpret and clarify requests received under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR). Read it if you have questions not answered in the Guide to FOIA or Guide to the EIR, or if you need further guidance about how to interpret and clarify requests.
In detail
- How do we read a request objectively?
- How should we handle an unclear request?
- How should we clarify a request?
- What is the relationship between Regulation 9 and the EIR code of practice?
How do we read a request objectively?
It is important that you read a request for information correctly. You should respond based on the wording of the request itself. In many cases there will be one objective reading of the request.
Example
A local authority receives a request phrased:
“Please send me a copy of the report entitled ‘City Centre Regeneration Strategy 2015 – 2020’ that you published on 17 September 2013.”
The wording of this request is so specific that it has only one meaning - that the requester wants a copy of the named report. Therefore the authority would comply by responding to this request and considering the report for release.
Sometimes, however, a request may have more than one possible interpretation.
Example
A government department receives a request phrased:
“I would like copies of all internal memos written by the minister and of all speeches given by the minister in February
2013.”
You can interpret this request in two different ways. The requester may mean:
all internal memos ever written by the minister, plus copies of all the speeches he made in February 2013.
However, they could equally mean:
all internal memos written by the minister in February 2013, plus copies of all the speeches given by the minister in the same month.
In this situation, you must go back to the requester to ask them to clarify which interpretation is correct.
If the request was made under the EIR, you must also issue a refusal notice under Regulation 12(4)(c) - the exception for requests formulated in too general a manner. This is in addition to asking for clarification. You should never attempt to guess which meaning the requester actually intended. Even if you respond correctly to one possible objective reading of a request, you may still find yourself in breach of the legislation if you fail to identify an alternative interpretation which is equally valid. You must seek clarification from the requester, if there is more than one objective reading.
Example:
In Mr A Berend v IC and LBC Richmond upon Thames (EA/2006/0049 & 0050; 12 July 2007), The London Borough of Richmond received a request asking for:
“…all working papers and documents attached to agendas”.
The Information Tribunal found that the council had breached FOIA in only considering working papers that were attached to agendas, even though this was an objective reading. They had failed to identify the alternative meaning, which would include all working papers.
What approach should we take if the background and context to a request may change the meaning?
We do not expect you to search for the history and context behind a request if none has been provided.
You do, however, need to take the background and context into account if:
- it is referenced in the request or is obvious from your dealings with the requester; and
- has the potential to alter its objective meaning.
For instance, if the requester makes reference to ongoing dealings between them and you, and these shed new light on the meaning of the current request. You then need to revise your interpretation accordingly.
Similarly, if a request makes specific reference to, or is clearly linked with, other correspondence between you and the requester. Then you need to read the request in that context.
Example
A government department receives the following request:
“With reference to my letter dated 12 August 2013, I would like to know how much was spent on strengthening flood defences in the North of England last year.”
The department is not clear, from the wording of the request, which specific geographical area the requester means by “the North of England”.
However, when the department refers back to the requester’s letter of 12 August, it finds that he has defined the “North of England” as the counties on the border with Scotland - Cumbria and Northumberland.
After reading the request in this light, the department recognises that it has to be interpreted to mean the amount spent on flood defences in the counties of Cumbria and Northumberland.
In the decision notice below, the authority’s failure to read the request in its proper context meant that it overlooked the alternative objective meaning of the request.
Example
In ICO decision notice FS50418149 the complainant had asked Cumbria Partnership NHS Foundation Trust to provide:
“…figures for the number of dental procedures which have been postponed or cancelled in the past 12 months.”
The Trust responded by providing the figure for the total number of cancellations by patients and by the Trust combined.
However, the complainant contended that her request was for the number of cancellations by the Trust alone.
In the course of our investigation, the ICO learned that the request was part of a letter of complaint about the Trust’s cancellation of dental appointments and its failure to provide an acceptable level of service in that area. We found that the request did have an alternative objective meaning when considered in this context.
“Given that the context in which the request was made was the Trust’s cancellation of appointments, with no mention of the cancellation of appointments by patients, the Commissioner is satisfied that the complainant’s contention that she was only seeking information about cancellations by the Trust was an alternative objective reading of the request...” (para 19).
You must ask the requester for further information, if, once the background and context are taken into account:
- the meaning of the current request becomes unclear or ambiguous; or
- it is apparent that there is at least one other possible interpretation of the request.
Example
A local authority receives a request asking for:
“…the source of the statistics on Church Street Comprehensive
School quoted in your letter of 11 August.”
The authority refers back to its letter of 11 August but discovers that it only contains references to statistics about North Lane Academy School.
As the meaning of the request is unclear when read in this context, the authority needs to go back to the requester to ask for clarification.
What approach should we take if the context or background suggests the requester may want different or additional information?
Sometimes the meaning of a request may appear clear. But the background or context might suggest that you would better meet the requester’s needs by providing different or additional information.
Where this is the case, your duty is to simply provide what the requester has asked for. However, section 16 of FOIA states that authorities have a duty to provide advice and assistance to those who “propose to make” requests. Depending on the circumstances, this may involve contacting the requester to help them formulate a new request that will better meet their needs.
Therefore, you may choose to provide advice and assistance to help the requester make a new request, before you respond to the original request. In many cases this will be more helpful to the requester and may even lead to the original request being withdrawn. You should take a pragmatic approach and use your best judgement in cases such as these.
Example
A requester asks a public authority for the following:
“The paper published by New Street Hospital in October 2021 entitled ‘Expenditure on treating alcohol related conditions 2018-2021.’”
The authority is clear about the objective meaning of the request and can easily identify and locate the information from the description provided.
However, it notes that in making his request, the requester has referred to his previous correspondence on the subject of the costs of treating alcohol related violence.
The requested paper only covers the costs of treatment for intoxication. The authority suspects that the requester is unaware of this and concludes that the information is unlikely to be of value to him.
The authority also holds a report on the costs of alcohol related violence which it believes would better meet the requester’s needs.
The authority decides to contact the requester to explain that the paper does not cover alcohol related violence and that it holds a report that might better fulfil his requirements. The requester confirms that he no longer requires the paper he originally asked for and submits a new request for a copy of the report.
By contacting the requester in this way the authority meets the requirement to provide advice and assistance to those who “propose to make” requests. It also saves the time it would have spent in answering the original request.
Remember that the requester still has a right to have the original request answered and should take care not to suggest otherwise. In some cases, a requester may decide not to withdraw the original request, even though they also make a new one. If this happens you are still obliged to answer the original request within the statutory time limit (usually 20 working days).
The position under the EIR is largely the same. The EIR code of practice states that:
Every public authority should be ready to provide advice and assistance, including but not limited to the steps set out below. This advice and assistance should be available to those who propose to make, or have made requests and help them to make good use of the Regulation. The duty on the public authority is to provide advice and assistance “so far as it would be reasonable to expect the authority to do so.”
How should we handle an unclear request?
If the request is not sufficiently clear to enable you to locate or identify the requested information, then your duty to provide advice and assistance will be triggered. You must go back to the requester to ask for further clarification.
If the request was made under the EIR, then you also need to issue a refusal notice under Regulation 12(4)(c) - the exception for requests formulated in too general a manner.
How should we deal with a request which contains contentious criticisms and allegations?
There may be circumstances in which a requester may level criticisms or allegations at you or your employees. For example, by asking for information about a “ridiculous decision” or “failures within the authority”, or making accusations of misconduct or corruption against your staff.
You must not allow your own views about the validity of any criticisms or allegations to influence how you read the request. Your sole focus must be on the information that is being requested.
Example
A government department receives the following request:
“I would like to know the reasons behind the ridiculous decision to close your advice line.”
The department does not accept the requester’s assertion that this was a ridiculous decision. However, it can’t allow this to affect how it reads the request.
It may not, for example, take the position that it does not hold any information about a “ridiculous decision” because, in its view, it has not made a ridiculous decision.
Rather, it must remain impartial and concentrate on the actual request, which is for information on the closure of the advice line.
How should we deal with a request which describes information using terminology we do not use?
The requester cannot reasonably be expected to have a detailed knowledge of:
- the way in which you organise and structure your records; or
- the terminology you use to describe and classify your information internally.
You must therefore make allowances for this when reading requests.
You should not exclude material from the scope of an otherwise clear request because the requester has described the information in a different way or has failed to use the “correct” terminology.
Example
In ICO decision notice FS50448565 the requester asked the
London Borough of Barnet to provide “…a copy of the One Barnet programme risk register...”. He later reiterated the request and asked to be provided with “the entire register”.
The Council classed the information in this register as falling into one of two categories:
- ‘risks’ (pre-emptive problems that had been identified and were being pro-actively managed); and
- ‘project issues’ (actual problems that had occurred and were being managed).
The Council provided the requester with a copy of the register but redacted the details of the ‘project issues’ as it believed these fell outside the scope of the request.
The ICO took the view, however, that the council had interpreted the scope of the request incorrectly and ruled that it should provide the complainant with the ‘issues’ sections of the risk register or issue a refusal notice in accordance with section 17 of FOIA:
“The Commissioner considers that, in making the request, the complainant could not have been expected to understand the intricacies of the distinction between ‘issues’ and ‘risks’ made by the council…
He finds that an objective reading of the request, which explicitly asks for a copy of the ‘entire register’ does not allow for a distinction to be drawn between the different elements of the register as the council has defined them.” (paragraph 19)
If you are unclear what the requester is asking for then you must ask them for further clarification.
How should we clarify a request?
Sometimes you may receive an unclear or ambiguous request where you reasonably require further information in order to identify and locate the requested information. This will trigger your duty to provide advice and assistance. You must contact the requester as soon as possible, but within the 20 working days to ask for clarification.
When seeking clarification, you should ensure that:
- your only purpose is to make sure that you understand what information the requester wants;
- you do not give the impression that the requester is obliged to explain their reasons for making the request; and
- the individual’s interest in the information is only taken into account if it helps to determine the scope of the request; it should not have any bearing on your response.
If, following the provision of reasonable advice and assistance, the requester is still unable to supply the required clarification, you are not expected to offer advice and assistance a second time.
You must still consider the release of any information falling within the scope of the request that you have been able to identify and locate based on an objective reading of the request.
How should we respond to an unclear or ambiguous request under FOIA?
Section 16(1) of the Act states:
16.—(1) It shall be the duty of a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it.
When you receive an unclear or ambiguous FOIA request, your Section 16 duty to provide advice and assistance will be triggered You must go back to the requester to ask for clarification. You should contact the requester as soon as possible, but within the 20 working day time limit for an initial response.
Under Section 1(3) of FOIA, once you have informed the requester that you require further clarification, you are not under any further obligation to respond until that clarification has been provided.
1.—(3) Where a public authority—
(a) reasonably requires further information in order to identify and locate the information requested, and
(b) has informed the applicant of that requirement,
the authority is not obliged to comply with subsection (1) unless it is supplied with that further information.
The section 45 code of practice states that:
2.9 Where a public authority asks for further information or clarification to enable the requester to meet the requirements of section 8, the 20 working day response period will not start until a satisfactory reply constituting a valid request is received. Letters should make clear that if no response is received the request will be considered closed by the public authority. Two months would be an appropriate length of time to wait to receive clarification before closing a request.
A clarified request represents a new request for information. If the requester subsequently provides enough detail to enable you to identify and locate the information, then you must respond within a new 20 working day time limit. The ‘clock’ starts the day after you receive the clarification.
How should we respond to an unclear or ambiguous request under the EIR?
Under Regulation 12(4)(c) of the EIR, you may refuse a request that has been formulated in too general a manner.
12.—(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that
– …
(c) the request for information is formulated in too general a manner and the public authority has complied with regulation
9;…
The term “formulated in too general a manner” covers requests that are:
- too unclear or non-specific for the authority to identify and locate the information requested; or
- ambiguous and can be interpreted in more than one way.
If you choose to apply Regulation 12(4)(c), then you must issue the requester with a refusal notice within 20 working days of receipt of the request. You must explain why the exception is engaged.
Read our guidance Regulation 12(4)(c): Requests formulated in too general a manner for further information.
You may only apply Regulation 12(4)(c) once you have fulfilled your obligation under Regulation 9 to offer the requester advice and assistance.
9.—(1) A public authority shall provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to applicants and prospective applicants.
(2) Where a public authority decides that an applicant has formulated a request in too general a manner, it shall—
(a) ask the applicant as soon as possible and in any event no later than 20 working days after the date of receipt of the request, to provide more particulars in relation to the request; and
(b) assist the applicant in providing those particulars.
Regulation 9(2) stipulates that where you intend to refuse a request under Regulation 12(4)(c), you must ask the requester to provide:
- more information to clarify the meaning of the request; and
- provide “reasonable” advice and assistance to help them do so.
You must provide advice and assistance before or at the same time as you issue the refusal notice.
Once the requester provides sufficient detail to enable you to identify and locate the information, then you should treat the clarified request as a new one.
This means you have a new 20 working day limit in which to respond. The ‘clock’ starts the day after you receive the clarification.
This also resets the 20 working day time for compliance for:
- Regulation 6(2)(a) – the time limit for explaining why the authority is not making information available in the form or format requested; and
- Regulation 14(2) – the time limit for issuing a formal refusal notice to the requester.
In some cases, the requester may respond but still be unable to clarify what they want, even after your reasonable advice and assistance. You have then met your obligations under the EIR for the original request and do not need to do anything more.
What is the relationship between Regulation 9 and the EIR code of practice?
Under Regulation 9(3), if you have followed the EIR code of practice’s recommendations for providing advice and assistance then you will also have complied with your duty to provide advice and assistance under regulation 9(1).
9.—(3) Where a code of practice has been made under regulation 16, and to the extent that a public authority conforms to that code in relation to the provision of advice and assistance in a particular case, it shall be taken to have complied with paragraph (1) in relation to that case.
Part III of the code makes several recommendations about the types of advice and assistance that could help a requester who makes an unclear request. These are not exhaustive and therefore it is possible to follow all the steps suggested in the code and still be in breach of regulation 9.
Therefore, you should take a proactive approach to providing advice and assistance. In practice, this means making judgments based on the individual circumstances of each request and being aware that sometimes you may need to go above and beyond the recommendations in the code in order to comply with Regulation 9.