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Section 21 - Information Accessible By Other Means

Chapters: 01 | 02 | 03 | 04 | annex A

Chapter 02: What constitutes information of the type covered by section 21?

2.1 In summary, section 21 exempts information which is 'reasonably accessible' to the applicant otherwise than via an FOI request. Subsections (2) and (3) explain what 'reasonably accessible' means in certain situations.

Preliminary considerations

2.2 Unusually in the provision made by the FOI Act, the question to be asked under section 21 is whether information is reasonably accessible "to the applicant". In other words, can the person who has made the request for information reasonably obtain it by other means? The information does not have to be reasonably accessible to the public; provided that the particular applicant who has requested it can reasonably access the information, it will be exempt. The Act therefore requires the individual characteristics of the applicant to be taken into account to some extent. This is considered further below. There are, however, a number of preliminary considerations which may need to be taken into account in approaching the test of 'reasonable accessibility'.

Information accessible only on payment (section 21(2)(a))

2.3 If the applicant can access the requested information by a means other than an FOI request, the fact that the applicant is required to pay for that information does not necessarily mean that it is not 'reasonably' accessible. Whether the applicant has to pay for the information is only one factor involved in determining whether it is 'reasonably accessible'. But it is clearly a relevant factor. A certain amount may evidently turn on the relationship between the information and the amount which has to be paid to access it. Although the fact of a charge is never by itself enough to prevent information being 'reasonably accessible', it is at least theoretically possible that the size or disproportionality of the charge could be sufficient to mean that section 21 does not apply. But there is no reason to be other than extremely hesitant to conclude that any ordinarily available commercial publication is sufficiently disproportionately priced to put it outside the terms of the exemption.

Information which must be made available to the public on request (by virtue of an enactment) (section 21(2)(b))

2.4 If the public authority or any other person is obliged by or under an enactment to communicate information to members of the public on request, that information is automatically 'reasonably accessible' to the applicant and will be exempt under section 21; there is no need to make any further assessment of whether the information is 'reasonably' accessible. This will not apply if the obligation is only to make the information available for "inspection". As indicated above, this part of section 21 is designed to preserve these discrete statutory access rights, complete with their special procedural regimes, intact.

2.5 The following points are important in considering whether information falls within section 21(2)(b):

The obligation must be to communicate the information to members of the public (NB. this differs from the rest of the section 21 exemption which is concerned with the availability of the information to the applicant).
The obligation need only be to communicate information on request.
If the statutory obligation is only to make the information available for inspection, this part of section 21 will not apply. Inspection simply means looking at the information. It is important to note that section 21(2)(b) is excluded whenever the statutory obligation is only to permit inspection, even though a copy of the information may in practice be available; if there is no legal obligation to go beyond inspection, then the information will not automatically be 'reasonably accessible'. But it may of course still be exempt under section 21 - a more qualitative assessment of all the circumstances will be required in order to determine whether it is 'reasonably accessible' (see further paragraph 2.10 onwards).
- An example of a statutory obligation only to make information available for inspection is section 3 of the Commons Registration Act 1965. Section 1 of that Act requires registers of commons and town or village greens to be kept. Section 3 provides that "any register maintained under this Act shall be open to inspection by the public at all reasonable times". Although section 3 does not preclude copies being provided on request, the obligation is only to allow inspection.
'Enactment' can include primary legislation (Acts of Parliament), secondary legislation (Statutory Instruments, Orders in Council), local and private legislation.
The fact that payment may be required for the information does not mean that it is excluded from this part of section 21, regardless of the level of fee or charge required.

2.6 One example of the application of section 21(2)(b) is section 67 of the Trade Marks Act 1994. Section 67(1) provides that:

"after publication of an application for registration of a trade mark, the registrar shall on request provide a person with such information and permit him to inspect such documents relating to the application, or to any registered trade mark resulting from it, as may be specified in the request... any request must be made in the prescribed manner and be accompanied by the appropriate fee (if any)"

In relation to the obligation to 'provide a person with such information... as may be specified in the request', this satisfies all the elements of section 21(2)(b):

A person is obliged...
under an enactment (section 67 of the Trade Marks Act 1994)...
to communicate the information to members of the public...
on request.
The fact that payment of a fee may be required is irrelevant.

This means that the information will be considered 'reasonably accessible' and will be exempt from the FOI Act under section 21. If a request is received for any such information, it can be refused on the basis of section 21.

2.7 A further example is section 33(1) of the Births and Deaths Registration Act 1953 which provides that:

"any person shall, on payment of a fee... and on furnishing the prescribed particulars, be entitled to obtain from the Registrar General, a superintendent registrar or a registrar a short certificate of the birth of any person."

Any information contained in a short certificate will be exempt from the FOI Act under section 21.

Information available from a public authority on request (section 21(3))

2.8 If information is available only from a public authority itself on request, otherwise than as a matter of legal duty by or under an enactment, the information will not be exempt under section 21 simply by virtue of this fact. In other words, just because a public authority would have given information to an applicant if they had requested it, otherwise than under the FOI Act, does not mean that the information is exempt under section 21; it is still necessary to make a qualitative assessment of whether or not the information is 'reasonably accessible' to the applicant (see further paragraph 2.11 onwards).

2.9 There is an obvious point of principle about the function of the FOI Act here. The individual rights of access under the Act do not have a role to play where an authority has already gone a step further in making information more generally available. But the authority does have to go that step further. Where an authority's openness policy goes no further than the FOI Act rights to have access to information on request - or indeed not so far as them - then that policy is not an alternative to compliance with the legal rights. It is effectively displaced by those rights.

Information available by virtue of publication schemes (section 21(3))

2.10 But if information is made available by a public authority in accordance with that authority's publication scheme under sections 19 and 20 of the FOI Act, and any payment required is specified in or determined in accordance with the scheme, this information will automatically be considered reasonably accessible and will be exempt under section 21 - even if it is only available on request from that authority. In other words, information available under a publication scheme will always be exempt under section 21. The role of the Information Commissioner in approving publication schemes is considered to be a sufficient guarantee of the 'reasonable accessibility' of information, so no further evaluation of accessibility is required. Where information is available under a publication scheme only on request, then the terms of the scheme will govern the handling of the request rather than the terms of the FOI Act.

When will information be 'reasonably accessible' to the applicant?

2.11 As explained above, information will automatically be 'reasonably accessible' to the applicant if:

any person is obliged, by an enactment, to make the information available on request to a member of the public (otherwise than by inspection) (see paragraphs 2.4 to 2.7 above); or
it is available on request from the public authority concerned in accordance with that authority's publication scheme (see paragraph 2.10 above).

If information falls within these categories it will be exempt under section 21 and no further consideration of whether it is 'reasonably accessible' will be necessary.

2.12 If information does not fall within these two categories, a qualitative assessment of its accessibility, in all the relevant circumstances, will be required in order to determine whether section 21 applies. Broadly speaking, the accessibility of the information must be considered in light of two different categories of factors:

the nature of the requested information; and
the nature and characteristics of the applicant.

Both categories are examined further below and examples of their relevance are given. The examples below are not exhaustive and whether or not information is 'readily accessible' will depend on the particular circumstances involved and the information which is being sought.

The information

2.13 Factors which may be relevant when determining whether information is 'readily accessible' may, for example, include whether it is:

readily available to purchase through commercial outlets or whether it is 'out of print'
mass-produced in large print-runs or confined to few, scarce or specialist sources or outlets
capable of being seen and downloaded through the internet
available through public library services or confined to private collections
discrete and able to be isolated or collated - or diffuse and difficult to identify
catalogued and indexed
ephemeral or archived
subject to onerous conditions as to access or as to subsequent use.

The accessibility of information contained in records and documents held by archive repositories subject to the FOI Act is discussed in Annex A.

The applicant

2.14 The test for the application of section 21 is whether information is reasonably accessible to the particular applicant that has requested it. As indicated above, this 'personalisation' of the test is unusual in FOI Act terms, and needs to be considered with some care. It also plainly has potential to require dialogue with the applicant to establish any characteristics which might be relevant.

2.15 In the first place, the individualised test indicates that even where information is not reasonably accessible to the public, or to members of the public, then so long as the particular applicant in question has reasonable access to it, the information will be exempt in relation to that applicant (although not, perhaps, in relation to other applicants).

2.16 In determining whether information is 'reasonably accessible' to the applicant, the following factors may be relevant:

any legal regimes for public access to information which fall outside the terms of section 21(2)(b) - for example because they are not created by or under an enactment, or because their obligations do not go beyond giving inspection; in the latter case, the practical arrangements available for obtaining copies of the information requested will be relevant;
any legal access schemes or rights which are available to that particular applicant. If, for example, a person is obliged by an enactment to provide the applicant (as opposed to the public) with the information requested then it is likely to be 'readily accessible' to the applicant unless some feature of the access scheme indicates otherwise. For example, section 3 of the Access to Health Records Act 1990 provides that the holder of a health record shall allow access to the health record of a deceased person on application by that person's personal representative by supplying the applicant with a copy or extract if so required (amongst other things).
any qualities, qualifications or other entitlements the applicant may have which give access to otherwise closed or private sources of information - for example membership of a university library, or of a society or profession.
any enhanced skills or resources the applicant may have which would bring otherwise inaccessible information within his reach - for example research, technical or linguistic skills

It is important to note that, before reliance can be placed on particular attributes of the applicant to bring a case within section 21, care needs to be taken not only to ensure that those attributes enable the 'reasonably accessible' test to be passed, but also that it can be confidently established that the applicant does in fact possess those attributes. If for any reason that cannot be established, it will be unsafe to rely on the exemption. In this context it should be noted that the FOI Act does not oblige applicants to supply to an authority the sorts of details which might be required to established special accessibility. Whether it is advisable for a public authority to pursue the possibility of special accessibility in any given case must always be a matter of judgment.

2.17 A rather more difficult question arises in the case of information which would be 'reasonably accessible' to the public in general, or to a member of the public, but might not be reasonably accessible to a particular applicant because of his special disadvantage. There are very many forms of disadvantage which have a potential to impact adversely on the accessibility of publicly available information in an individual case - for example disability, educational or economic disadvantage, isolation, limited linguistic skills. The language of the Act does not give very certain guidance as to how to handle such circumstances in the context of section 21.

2.18 If information is reasonably accessible to members of the public, then a reasonable approach might be along the following lines:

in the absence of any indication to the contrary, the information is likely to be reasonably accessible to any individual applicant;
the Act does not require elaborate researches to be made into the possibility of individual disadvantage - but in explaining the reasons for refusal of a request in reliance on section 21, the authority should give a reasonable indication of how the information might be accessed and therefore give the applicant an opportunity to challenge the applicability of that route to his own circumstances;
if the applicant makes a case that the information is not reasonably accessible to him because of his own particular disadvantaged position, then that will have to be looked at on its merits - but the test remains reasonable accessibility, which arguably leaves some latitude to argue for the limits of the FOI Act rights as a vehicle for addressing disadvantage in information access more generally.

Ultimately, the individualisation of the test in section 21 to the position of the applicant does expose public authorities to the need to account for the individual characteristics of the applicant to some extent. On the other hand, 'reasonable accessibility' itself imports a potentially variable standard which acknowledges that levels of accessibility are neither absolutely guaranteed nor identical in every case.