Freedom of information empowers citizens with the right to access information held by public authorities, fostering open governance. However, to balance out the general right of access to information there are a number of exemptions to disclosure. Public Authorities can apply them in certain circumstances. One such reason is covered under Section 21 of the Act. This exemption deals with information that is already reasonably accessible to the applicant through other means.
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Section 21 Exemption
It is called a Section 21 Exemption because Section 21 of the Freedom of Information Act (FOIA) sets out the exemption and how it applies:
“Information accessible to applicant by other means.
(1)Information which is reasonably accessible to the applicant otherwise than under section 1 is exempt information.
(2)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.
(3) 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.”
This exemption is an example of an absolute exemption – it applies regardless of the content of the information requested.
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find out more about absolute exemptions here.
Understanding Section 21 Exemption
What does it mean for information to be “accessible by other means”? It refers to information that is readily available to the applicant through sources such as publications, websites, or their own existing knowledge. For instance, if a government report is publicly available on a website, requesting the same information under FOIA could be considered redundant because it is already published in the public domain.
One of the main ways of reducing the potential burden of FOIA requests is to proactively publish information on a publication scheme. A publication scheme is a statutory requirement under the Act but going beyond the Act’s minimum requirements helps make information accessible.
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find out more about statutory publication schemes here.
There are however some challenges. For example, you may need to take into account the requirements of disabilities when deciding on accessibility.
In addition under the FOIA you have a statutory duty to assist requestors so if you know information is accessible elsewhere you should still explain when and how.
Preventing Duplication
The essence of Section 21 lies in preventing the duplication of information. Imagine a scenario where a public authority has already made specific information easily accessible to the public through their website. Requiring them to provide the same information in response to an FOI request would create an unnecessary administrative burden.
In addition if the relevant information changes over time there are risks around version control and providing accurate, up to date information.
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Interpreting Accessibility
Looking at the detail of the exemption we can see it is quite clear that information accessible even if you have to pay a fee to access it.
By extension this means that if it costs someone money to access information, such as travel costs, then the information is still reasonably accessible. For example, assume the information is available at a local library. If someone has to pay a fare or for petrol to get to the library then it is still accessible.
Conversely people may have particular needs due to disabilities or other issues that make it harder to access documents. Therefore you do need to take into account the requestor’s circumstances and personal needs when responding.
Also, the accessible information must be the same as the information requested. A section 20 exemption is not applicable if the information accessible by other means is only similar or even very similar.
Statutory Obligation to Disclose
Information is also exempt under this section if it has to be disclosed due to a legal duty of some sort. The legal duty has to be separate from freedom of information legislation. This links to the point about reducing duplication.
Handling Section 21 Requests
When public authorities do receive requests that fall under Section 21, there are some key things to do. Ensuring compliance with FOI regulations and providing clear explanations to requesters is essential in maintaining trust and transparency.
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ensure that the information requested is the same as the information that is already accessible
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if so issue a refusal notice to the requestor explaining you will not be releasing the information and why
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guide the requestor on how to access the information
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remind the requestor of their right to ask for an internal review or complain to the Information Commissioner.
An internal review is a mechanism by which requestors can object to a refusal to release information. You can find out more about how to handle an internal review here.
The use of Section 21 highlights an ongoing debate within FOIA: the balance between transparency and reducing administrative burden. While it’s vital to prevent unnecessary duplication, it’s equally critical to uphold the principles of openness and accountability.
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Conclusion
In conclusion, Section 21, which deals with information accessible by other means, remains a crucial component of the FOIA framework. It serves as a reminder that while transparency is a fundamental principle of open governance, it must be balanced with considerations of administrative efficiency. As technology and global practices evolve, Section 21 will continue to play a vital role in ensuring the responsible and secure management of information accessible through other channels.