Section 21 of the Freedom of Information Act provides that:
Information which is reasonably accessible to the applicant otherwise
than under section 1 is exempt information.
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.
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.
Introduction
1.1 Section 21 exempts information from the right of access
under the Freedom of Information Act where the information requested is
reasonably accessible to the applicant by another means. The FOI Act rights
of access do not exist in an information vacuum, and section 21 is intended
to set down some important markers as to the proper role of the FOI Act
in an information-rich society. Two essential policy aims underlie this
provision.
Firstly, it is aimed at preserving intact all existing legal regimes
providing access to information. The FOI Act is not designed to subsume
other legal access rights, nor to give alternative routes of access
where existing regimes are already available. The FOI Act access rights
are therefore supplementary in character; they build on but do not replace
previous access rights. Those existing rights, and the separate procedural
regimes which are tailored to them, continue in place, and the FOI Act
observes corresponding limits to its role. This acknowledges both the
distinctive policy considerations underlying those discrete access regimes,
and also the need for orderliness in avoiding confusion between regimes.
Secondly, it confirms that it is no part of the FOI regime to provide
alternative means of access to information which is already freely available
either through commercial publishing operations or through existing
publicly funded provision. The FOI Act rights are again designed to
supplement, and not to duplicate, the ordinary circulation of information
to the public through the commercial electronic and print media and
through existing library and archive services.
These latter considerations apply not only to the provision of information
through private enterprise, but also to public authorities' own publishing
operations. The FOI Act affirms, in particular through the 'publication
scheme' provisions of sections 19 and 20 of the Act, the positive desirability
of public authorities proactively placing information in the public domain
and taking advance decisions to disclose, rather than leaving the onus on
individual applicants to test the possibility of disclosure through access
requests. For public authorities, therefore, publication is established
as an alternative to disclosure by means of the FOI Act access route; if
a public authority has already made information available, there is no need
for the authority to address the provision of that information further under
the FOI Act.
1.2 Both of these policy strands are recognised in the
fact that section 21 is an absolute exemption. There is no need to consider
the prejudice that may arise from disclosure, nor is there any need to consider
the public interest in disclosure. Section 21 is not concerned with withholding
information from the public - on the contrary, its function is to regulate
the boundaries between different kinds of access to information. No evaluation
beyond the terms of the provision itself is needed in order to identify
those boundaries.
1.3 But section 21 does not exclude the duty to confirm
or deny whether or not the requested information is held. Even if information
is exempt under section 21, public authorities will still have to confirm
or deny whether or not they hold the information requested. The FOI Act
therefore recognises that information about a public authority's own holding
of published information is something about which there is a right to be
told; that is of course quite separate from the question of how an applicant
can be expected to access the information itself.
