About this detailed guidance
This guidance discusses in detail section 16 of FOIA, the duty to provide advice and assistance, and is written for use by public authorities. You should read it if you have questions not answered in the Guide, or if you need a deeper understanding of your obligation to provide reasonable advice and assistance to individuals making requests for information under the Freedom of Information Act.
This detailed guidance does not apply to requests which fall within the scope of the Environmental Information Regulations (regulation 9).
When providing advice and assistance under section 16 of FOIA, you should be mindful of any other obligations on you, for example those arising from compliance with the Equality Act 2010.
- What does section 16 of FOIA say?
- In what circumstances should we provide advice and assistance?
- How far should we go to provide advice and assistance?
- How should we deal with a request made orally?
- How far should we help the applicant clarify or refine their request?
- Do we still have to provide advice and assistance when the request is vexatious?
Section 16 of FOIA 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.
(2) Any public authority which, in relation to the provision of advice or assistance in any case, conforms with the code of practice under section 45 is to be taken to comply with the duty imposed by subsection (1) in relation to that case.
Section 16 of FOIA consists of the above two subsections.
Subsection 16(1) sets out a duty for you to provide advice and assistance to anyone who has made or is thinking of making a request for information.
This means you have a duty to advise and assist not only applicants but prospective applicants.
The Commissioner interprets this duty broadly. For example, if you receive a request which you believe is not valid for FOIA purposes, you should consider what advice and assistance you can provide the applicant to help them bring the request within technical compliance of FOIA.
In Decision Notice FS50561738, the Commissioner said public authorities should give applicants advice and assistance to clarify situations where FOI requests may be deemed defective, with the aim of helping them make an effective request for FOIA purposes.
In this case, the applicant asked the Ministry of Justice (MOJ) whether the Queen’s Bench common law court had been closed and, if that was not the case, whether he was allowed access to it. The MOJ responded that this was not a valid request under FOIA. The MOJ argued that the first part of the request was a yes/no answer while the second part was a request for confirmation of a correct court procedure which could be handled as a ‘business as usual’ response.
During the investigation, the Commissioner advised that a request for information that fails to engage section 1 of FOIA does not necessarily mean the Act is irrelevant. In the Commissioner’s view, authorities can deal with requests in the ‘normal course of business’ provided this does not result in lower standards (eg disclosing less information, or taking longer to deal with the request). For instance, if the request is not properly framed, public authorities should provide advice and assistance in line with section 16 to help the applicant make it so and bring it within the scope of FOIA.
The duty to provide advice and assistance extends as far as it would be reasonable for you to do so.
Subsection 16(2) seeks to give you some guidance on discharging your duties under subsection (1). It explains that, if you conform to the standards of good practice in the 2018 s45 Code of Practice (the Code), it is likely you will have carried out your duties under section 16(1).
By contrast, failure to follow good practice as laid out in the Code does not necessarily mean you will be considered to have breached section 16(1).
Relevant cases, where section 16 has been considered as a main point of appeal, support this interpretation.
A key case in applying section 16 is Berend v the Information Commissioner and London Borough of Richmond upon Thames (LBRT) EA2006/0049 & 0050 (12 July 2007). In this case, the Tribunal concluded that failure to comply with the Code does not necessarily become a breach of section 16 of FOIA.
The appellant had submitted two similar requests for information about the sale of a long lease of a piece of land by the London Borough of Richmond upon Thames.
Following an unsuccessful complaint to the ICO, the appellant put forward two appeals before the Tribunal.
Among other grounds of appeal, the appellant said the LBRT had breached section 16 of FOIA by failing to initiate contact with him and by failing to help him reframe his request to include a request for all relevant documents in scope.
The Tribunal rejected the appellant’s arguments.
As for LBRT’s failure to initiate contact with the applicant, the Tribunal explained that there is no general duty under FOIA requiring a public authority to initiate contact with an applicant. An obligation to do so would be under the s45 Code of Practice where a request requires clarification, which was not relevant in this case.
As for LBRT’s failure to provide assistance to the applicant to reframe his request, the Tribunal argued that – under the Code – the public authority can ask for more detail about a request for information only as far as this is necessary to enable them to identify and locate the information sought if the request is ambiguous. In this case, the Tribunal noted that, read objectively, the request was clear enough to enable the LBRT to know what information the applicant wanted.
Therefore, in its findings on section 16, the Tribunal concluded that “where the public authority has complied with the Code, they will be held to have fulfilled their obligations [under section 16], however, failure to comply with the Code does not inevitably mean that a public authority has breached section 16 FOIA.” [para. 40]
This accords with the Commissioner’s view that the section 16(1) duty to provide advice and assistance ‘so far as it would be reasonable to expect the authority to do so’ is limited by section 16(2). While a public authority might choose to go beyond what the Code says, it doesn’t have to do so to comply with section 16.
In this case, the Tribunal applied the 2004 edition of the Code, which was the one in force on the date that the request was made. Since July 2018, a new edition of the s45 Code of Practice has come into force.
The Code is about good practice by public authorities, rather than about obligations which arise through its links with the FOIA. The interpretation remains that, where you have satisfied the provisions of the Code, you will not be considered to have breached section 16. By contrast, failure to follow the Code would not necessarily be a breach of section 16.
Generally, we recommend that you should treat the Code as a minimum standard and go beyond its provisions as a matter of good practice.
Under section 50(4) of FOIA, the Commissioner can specify steps directing you to provide advice and assistance where they have found a breach of section 16 about a complaint.
Section 16 aims to ensure that you communicate with an applicant or prospective applicant to find out what information they want and how they can obtain it.
Generally, there are three main circumstances in which this duty arises.
The first is that you have reason to believe that the applicant has not given their real name. In this case, you should ask the applicant for it.
The second circumstance is when the request, read objectively, is ambiguous and requires clarification as to the information sought. In this case, you should contact the applicant to ask for more details to help you identify and locate the information they want.
The third circumstance is when the request would exceed the appropriate limit beyond which you would not be required to provide the information. In this instance, you should provide the applicant or prospective applicant with advice and assistance to help them reframe the request in a way that would bring it within the appropriate limit.
In Decision Notice FS50512601, Sandwell Metropolitan Borough Council (MBC) relied on the cost exemption under section 12 to withhold the information requested.
When prompted by the applicant, Sandwell MBC suggested they submit a new request for consideration, specifying exactly what information they required.
The Commissioner did not accept that this response met the requirements of section 16 as it offered no advice to the complainant, but simply the opportunity to submit a fresh request.
The Commissioner required the public authority to contact the complainant to provide advice and assistance as to how he may be able to submit a refined request which Sandwell MBC might be able to comply with within the appropriate cost limit.
If you cannot deal with the request without advising and assisting the applicant or prospective applicant, then you should refer to the s45 Code of Practice (2018) to establish how to provide reasonable advice and assistance.
Chapter 2 of the Code provides you with guidance on recommended best practice regarding your duties under section 16.
Specifically, the Code covers the following areas:
- Advice and assistance to prospective requesters (paragraphs 2.3 to 2.5).
- Clarifying the request (paragraphs 2.6 to 2.9).
- Reducing the cost of a request (paragraph 2.10).
- Transferring requests for information (paragraphs 2.11 to 2.13).
As stated in the previous section, if you can demonstrate that you have satisfied the provisions of the Code, it is likely that you will have also complied with your obligations under section 16.
When considering your duty to provide advice and assistance, you should be mindful that members of the public may not be familiar or aware of FOIA. You should therefore be sure to draw the attention of applicants or potential applicants to their general rights of access to information.
Requests for information may be received by anyone in your organisation. It is your responsibility as a public authority to ensure your staff can identify a request under FOIA and, where appropriate, provide advice and assistance.
This should not entail any additional burden because, in most cases, your obligations under section 16 will be fulfilled by your usual customer service standards.
If an applicant decides not to follow the advice and assistance you provided or does not respond to your request for clarification, you need not contact them a second time.
However, if you are in any doubt as to whether the applicant actually received the advice, then it would be good practice to re-issue it.
As best practice, you should facilitate access to the information you hold as far as possible, which you can achieve in two ways.
First, by ensuring you routinely and proactively publish information, in line with your publication scheme.
Second, by proactively publishing details of your procedures for dealing with requests for information. Normally, these should include:
- a contact address. That is, a postal and email address or an appropriate online alternative such as an online form;
- a telephone number;
- ideally, a named individual to help applicants direct their requests for information or assistance.
In Decision Notice FS50502471, the applicant made an information request to the Home Office via the ‘What do they know’ website. The applicant received an automated response to say the email address in question was not in use.
The Commissioner said the Home Office had breached section 16 since it did not tell the complainant where new requests should be sent.
Your duty to provide advice and assistance extends ‘so far as it would be reasonable to expect’ you to do so. Often, what is reasonable will be determined by the request’s specific characteristics.
Therefore, you should be flexible and treat each application or potential application on a case by case basis. Often, it will be clear what advice and assistance you need to offer. Sometimes, you will need to liaise with the applicant to establish what reasonable advice and assistance might be appropriate.
Generally, examples of what is reasonable for you to do may include:
- advising an applicant or potential applicant of their rights under FOIA;
- making early contact with an applicant and maintaining a dialogue with them throughout the process of dealing with the request by keeping them informed at every stage;
- considering the most appropriate method of contact, bearing in mind the applicant’s circumstances and your duties under equality legislation. For example, some requesters may prefer or require communication to be in writing, either via email or post;
- similarly, if it is not possible to give the information requested in the way originally specified, helping the applicant by discussing the provision of information in an alternative format they would accept;
- helping an applicant to focus their request, perhaps by informing them of the types of information available within the requested category;
- advising an applicant if information is available elsewhere. For example, if the information is available on your website or via your publication scheme, explain to the applicant how to access this. If you do not hold the information but you believe another public authority may do, you should respond to the applicant and redirect them to the relevant authority. According to the 2018 Code, where you can, you should also give the contact details of the public authority you believe holds the information.
Often, how far it is reasonable to provide advice and assistance depends on the particular public authority.
In Brown v Information Commissioner and The National Archives EA/2006/0088 (2 October 2007), the Tribunal reached the conclusion that:
“the duty on a public authority to provide assistance and advice under section 16 is expressly qualified by the words ‘only in so far as it would be reasonable to expect the authority to do so’. It is clear from this that the advice and assistance that it would be reasonable to expect depends upon the particular public authority in question. The issue is about what it is reasonable for ‘the’ public authority in question to do.”
This case related to a request Mr Brown made to The National Archives (TNA) for information they held “in relation to the Princess Margaret Townsend Affair and or any illegitimate child born on or about 05/01/1955 to Princess Margaret”.
Initially, TNA refused the request stating that, in the absence of evidence to substantiate the applicant’s claim, the authority could not agree to carry out a search “for records that may not exist”.
Following this refusal, the applicant tried to identify from TNA’s online catalogue which records may be relevant to his search. This resulted in more than 600 requests, each relating to specific codes for records or descriptors which the applicant obtained from his search of the catalogue.
Given the volume of the request, TNA offered two alternatives to the applicant. These were: either a relevance review, ie a research aimed at finding out whether a record contains a specific piece of information, in batches of 50 records per month or full access reviews in batches of 15 records per month.
The applicant did not communicate his decision to the authority and later chased TNA to request full access reviews of 50 records per month.
After receiving this communication, TNA wrote to the applicant and informed him they would not continue processing his requests. In its refusal notice, the authority relied on section 12 and section 14 of FOIA.
The Tribunal rejected TNA’s argument. It argued that searches are a core function of TNA. As a result, TNA should have recognised from the outset that the applicant’s request would have involved searching through a large number of records. In turn, this would have led to the request exceeding the appropriate limit under section 12.
The Tribunal commented that TNA should have therefore advised the applicant to send his requests on a phased basis, in intervals of more than 60 days.
The Tribunal concluded by arguing that “it would have been reasonable to expect TNA to advise the Appellant to phase his requests in intervals of more than 60 days, and to assist him to do so in a manner that was logical, took into account of [sic] his priorities and the nature of the searches that TNA could offer” [para. 79].
As good practice, if you have refused a request because of an exemption, be prepared to provide an applicant with advice and assistance.
For example, if you consider the information is reasonably accessible by other means, you should advise the applicant how and where they can obtain it.
Similarly, if you intend to publish the requested information in the future, you should clearly tell the applicant when you expect to publish it.
As a general rule, you should design customer service policies in a way that helps you meet your advice and assistance duties. To this end, you should ensure these policies incorporate the steps outlined in the Code.
In all circumstances, you should accurately record and document the handling of any request, including the steps you have taken to provide reasonable advice and assistance.
If you receive an oral request, you should in the first instance advise the prospective applicant to submit their request in writing in line with section 8(1)(a) of FOIA.
In Decision Notice IC-47344-F9K8, the Commissioner argued that the authority should have obtained written clarification of the request. As a result, she found the authority had failed to provide the applicant reasonable advice and assistance and was therefore in breach of section 16.
In this case, the applicant had made a request by voicemail. However, he had directed the request to the wrong agency, which forwarded it to the right authority, which was the Department of Health and Social Care (DHSC). DHSC contacted the applicant with a generic response directing him to various publicly available information sources.
The applicant responded to this communication and submitted a written request. In the Commissioner’s view, this was not a valid request under FOIA because the applicant did not describe what information he wanted. However, DHSC could identify it by reading the request in the context of the voicemail request submitted that DHSC treated as a valid request.
Section 8(1)(c) of FOIA states unequivocally that a request must be in writing, although the Commissioner considers that public authorities should be pragmatic and helpful when dealing with individuals trying to request information verbally. In the circumstances above, DHSC should have emailed the requester stating what information it believed the requestor wanted and awaited written confirmation.
The Commissioner found that, by failing to do so, the authority had breached section 16.
There may be circumstances where the applicant has not or is unable, for example due to a disability, to submit their request in writing.
You should use your discretion in deciding what level of advice and assistance is appropriate for applicants who have difficulty making or framing a written request.
If an applicant has made an oral request to you, you could:
- offer to take a note of the application over the telephone and send it to the applicant for confirmation. Once you receive the requester’s verification, this will be a formed written request. The statutory time limit for replying would begin at this point. This should not represent an extra burden as you should already have procedures in place for dealing with verbal requests to meet your obligations under EIR;
- direct the applicant to another agency, for example Citizens Advice, which may be able to help them frame their request in writing or submit the application on their behalf.
When deciding what level of advice and assistance you may wish to provide to applicants making an oral request, you should be guided by what would be most appropriate in the specific circumstances. As part of this, you should be mindful of your duties under other legislation, for example equality legislation.
As previously mentioned, you can contact the applicant to ask for more details about the information sought, when this is not clear from the outset.
If – read objectively – the request is clear, there is no need to seek clarification from the applicant.
In Michael King v the Information Commissioner EA/2010/0126 (5 January 2012), the applicant had submitted a request to the Information Commissioner’s Office for information held by the ICO about Crawley Borough Council’s non-compliance with FOIA.
The ICO gave the requested information in the form of a synopsis of each case, plus redacted case closure letters written by the ICO. A disagreement then arose as to what had actually been asked for. The applicant raised a formal complaint via the ICO and ultimately appealed to the Tribunal.
In the appeal, the complainant argued that the ICO had breached its duties under section 16 by failing to provide advice and assistance to help him clarify the nature of the information sought.
On examining the evidence, the Tribunal concluded that:
“We found that the text of the request was clear and adequately specified the information sought. Therefore we do not see why the Commissioner would have needed to clarify what it meant.
Accordingly, we find the Commissioner conformed with the Code of Practice and so did not breach section 16.”
This case builds on a precedent set in Michael King v the Information Commissioner (LBRT) EA/2006/0049 & 50 (12 July 2007) where the Tribunal reached a similar conclusion, ie that a request should be read objectively and that the public authority is under no obligation “to go behind what appears to be a clear request”. [para 86]
Similarly, it is important to remember that your duty to provide advice and assistance under section 16 relates to clarifying requests. You are not expected to offer any clarification of material provided in response to requests.
This is further explored in the First-tier Tribunal (FTT) decision Nick Innes v Information Commissioner EA/2009/0064 (5 May 2011).
The appellant had made a series of requests seeking information on pupils’ progress at the school. He said the information he was given could not be understood without an explanation and argued that the public authority was under a duty to provide one under section 16.
In this case, the FTT found that the duty to provide advice and assistance does not extend to explanation of the information requested. Rather, its purpose is to help the applicant identify the information they are seeking.
The FTT commented that:
“There are numerous circumstances where eg technical or scientific information is disclosed which is meaningless to the requestor, without an explanation. It may be that an explanation is not held and one would have to be created especially for the requestor for the public authority to fulfil any perceived obligation to explain the data. This goes beyond the terms of section 1(b) FOIA which provides for the communication of information where it is held, and nothing else.” [para. 27]
As a result, the Tribunal concluded that it would not have been reasonable for the public authority to have to explain the information they were disclosing.
In this example, the FTT built on the 2004 s45 Code of Practice in force at the time. The 2018 Code does not go into as much detail as the old Code about the instances where you need to provide advice and assistance. However, the wording of the 2018 Code does not imply a more general duty to offer advice and assistance to the applicant which extends to clarifying the information disclosed. Although there is no duty to provide advice and assistance to clarify the disclosed information, there is also nothing to stop you doing so.
Likewise, you should not use your duty to help the applicant clarify their request as a way of finding out the reason for it.
If you can clearly identify some elements of a request, you should respond in the usual way within the statutory limits.
For those elements of the requests which are not clear, you should contact the applicant without undue delay to seek clarification.
If the applicant has made a request you estimate would exceed the appropriate limit under section 12, you should first think about whether there is any information you can provide within the cost limit and free of charge.
The ICO has issued numerous decision notices where the authority has breached section 16 because of a failure to do so.
Secondly, you should consider whether there is any advice and assistance you can provide to the applicant to help them refine and refocus their request to bring it within the appropriate limit. This means having a conversation with the applicant to explore how they can reframe the request to narrow down the scope.
In John Slater v. Information Commissioner EA/2019/0118 (31 March 2020), the Tribunal concluded that the authority did not breach section 16.
The applicant had submitted multiple requests, most of which would individually exceed the appropriate limit under section 12. When issuing its refusal notice, the authority informed the applicant of this and advised he needed to make a more focussed request. The FTT noted that the aim of section 16 is to start a dialogue with the applicant on how they can reframe their request, not “to provide a requester with a menu, or a price list, for retrieval of the various types of information it may hold” [para. 69].
In this case, the applicant did not engage with the authority to explore how to reframe the request to bring it within the appropriate limit. Therefore, the Tribunal was satisfied that the authority had complied with its section 16 duties.
Nonetheless, there will be occasions when there are no obvious alternative ways of restating the request, which will limit your ability to help the applicant narrow it down.
This is exemplified in Commissioner of the Metropolitan Police vs Information Commissioner and Donnie Mackenzie ( UKUT 0479 (AAC) 22 October 2014). The case concerned a request originally made to the Metropolitan Police Service (MPS) for information about joint agency operations.
MPS refused the request because the cost of compliance would exceed the appropriate limit. MPS also informed the complainant that it could not suggest any practical way of modifying his request to bring it within the cost limit.
The Commissioner issued a Decision Notice (FS50503796) upholding the refusal on grounds of cost and finding that MPS had complied with its duty to advise and assist.
This decision was challenged by the applicant. On appeal, the First-tier Tribunal (FTT) reached a decision whereby MPS should have provided advice and assistance to enable a refined request to be made.
MPS then appealed to the Upper Tribunal (UT) requesting more general guidance on the meaning and extent of section 16.
The UT found that the adequacy of the FTT’s reasoning was insufficient (paras 25–26) and that its conclusions on section 16 FOIA in this case were “unsustainable on the evidence before it” (paras 21–24).
In reaching this finding, the UT built on a FTT’s decision in Bruce Beckles v Information Commissioner EA/2011/0073 & 0074 (7 September 2011). In this decision, the Tribunal had commented that:
“Section 16 requires a public authority, whether before or after the request is made, to suggest obvious alternative formulations of the request which will enable it to supply the core of the information sought within the cost limits. It is not required to exercise its imagination to proffer other possible solutions to the problem.” [para. 24]
According to the UT, this “represented an accurate statement of the law”.
As a result, the UT allowed MPS appeal. It dismissed the complainant’s appeal and upheld the Commissioner’s original decision notice.
If, as a result of advice and assistance, the applicant submits a refined request, you should deal with this as a fresh request. This means that the statutory limit for responding will start from when you receive the refined request.
The fact that a request is vexatious does not prevent you offering the applicant advice and assistance.
Under section 14(1), you are under no obligation to respond to a request when you find it meets the criteria for being vexatious on grounds of burden or cost alone.
When dealing with such requests, you should as best practice consider what reasonable advice and assistance you can provide to the requester to help them make a refined, less burdensome request.
Indeed, when dealing with a request deemed vexatious on grounds of burden or cost alone, you should as best practice consider what reasonable advice and assistance you can provide to the requester to help them make a refined, less burdensome request.
The consequences for the applicant of finding a request is vexatious because of burden or cost alone are similar to those where a request has been refused for exceeding the appropriate limit under s12.
It follows that, when handling a vexatious request on grounds of burden or cost alone, it would be reasonable for you to provide the applicant with advice and assistance in a similar way you would do for a request exceeding the appropriate limit.
However, as with requests exceeding the appropriate limit, we accept that your ability to provide advice and assistance will be limited if there are no obvious ways of reframing the request.
According to the Code, you may also wish to consider explaining in your refusal notice why the request is vexatious.
In Ms McInerney v Information Commissioner and Department for Education  UKUT 0047 (ACC) (29 January 2015), the Upper Tribunal (UT) argued that “a public authority is not entitled to ignore section 16” when dealing with a request considered vexatious.
In this case, the applicant had requested from the Department for Education (DfE) information about applications to establish Free Schools and DfE’s decision letters in response to such applications. DfE initially relied on section 36(2)(c) to withhold the information. On appeal, the authority relied also on section 14, citing the burden responding to the request would entail. The First-tier Tribunal (FTT) found DfE had appropriately applied section 14.
Ms McInerney appealed the decision to the UT. When examining the point of the vexatiousness of the request, the UT stated “even in what appears to be a most vexatious request, the circumstances might allow a public authority to extract one part to create a non-vexatious request. (…) In such a case, it might be appropriate to discuss the matter under section 16.”
The UT did not decide the case on this point. However, this reasoning indicates that tribunals may consider the provision of advice and assistance as appropriate when it deems a request vexatious on grounds of cost or burden alone, especially in the context of the 2018 Code. Contrary to the 2004 Code, the 2018 Code no longer states that public authorities are not expected to provide advice and assistance to applicants whose requests are vexatious. In Cruelty Free International v Information Commissioner and Home Office  UKUT 299 (AAC) (30 September 2019), the UT noted this omission while also drawing attention to the inclusion of paragraph 7.17 stating that public authorities may wish to explain to an applicant why the request is vexatious as part of the section 16 duty to provide advice and assistance.
If you wish to explore topics related to providing advice and assistance, please refer to the following guidance:
- Refusing a request for information
- Interpreting and clarifying requests
- Section 12 – Requests where the cost of compliance exceeds the appropriate limit
- Section 14 – Dealing with vexatious requests
- Publication Scheme
- Request handling – FAQs
- Regulation 9 – Advice and Assistance.
Given its relevance to the discharge of your duties under section 16, we also recommend you read the s45 Code of Practice (2018).