Better Transport

Your request may be turned down for several reasons.

Because of exemptions and exceptions
Under the FOI Act, the reasons to reject your request are called exemptions; under the EIRs they are called exceptions.

If your request is turned down under the EIRs, the authority must apply a public interest test to demonstrate that it is in the public interest for the information to be refused (which is a very high hurdle, because remember that there is a presumption in favour of disclosure).

If your request is treated under the FOI Act, most exemptions need a public interest test as well, although some are absolute exemptions and there is no need for the authority to apply a public interest test.

Remember that the authority cannot refuse to disclose information simply because it is embarrassing to them or would undermine them. It is in the public interest that the public see how decisions are made and why and that they are the best decisions.

Also the authority shouldn’t apply an exemption to all the information in its entirety, but it could apply an exemption to part of it. For instance the authority could release the information but black out (called redacting) the sensitive exempt information.

Because of the cost of complying with your request
The FOI Act puts a cost limit on requests - £600 for Government departments and £450 for local authorities - where the authority can refuse the request if it would cost more than the limit to answer. There is no equivalent refusal in the EIRs although they can charge you a 'reasonable' amount for complying with the request.

Before your council refuses the request because of costs, they should contact you to discuss how your request could be answered within the fees limit.

In deciding whether the request goes over the fees limit, the authority may take into account the costs of locating and retrieving the information and communicating this to you.

Because of repeat and vexatious requests
An authority can refuse you if they believe your request is a repeated or vexatious request (Section 14 of the FOI Act). Note that it is the request not the requestor that is vexatious and the authority should not pre-determine your requests. Vexatious means that your request is harassing the authority or causing an unnecessary burden. It is not an excuse for your authority to get around awkward questions.

Under the EIRs the authority can turn you down if they believe that your request is 'manifestly unreasonable' (Regulation 12 (4) (b)). This is defined in the same way as 'vexatious' in the FOI Act – that you are placing an unnecessary burden on the authority. However in both cases the authority must have firm evidence of this.

ICO guidance on vexatious requests

Other reasons to refuse you…
Other exemptions and exceptions covered by the EIRs and FOI Act which you may come across when asking for information about road schemes are outlined below.

FOI Act
Section 21 – Information already accessible
Section 22 – Information intended for publication (prior to the request)
Section 29 – Information likely to prejudice the economic interests of the UK
Section 30 – Information obtained during investigations into criminal offences
Section 31 – Information likely to prejudice law enforcement
Section 33 – Information likely to prejudice the audit functions of an authority
Section 35 – Information relating to the formulation of government policy
Section 36 – Information which could prejudice the effective conduct of public affairs
Section 40 – Personal data
Section 41 – Information whose disclosure would be a breach of confidence
Section 42 – Information covered by legal professional privilege
Section 43 – Information whose disclosure would be likely to prejudice commercial interests

EIRs
Regulation 12 of EIRS says information does not have to be disclosed if its disclosure would adversely affect things such as public safety, intellectual property rights; legally protected local authority proceedings; and confidential commercial information.

Justifying a request refusal
If your request is turned down under the EIRs, the authority must apply a public interest test to demonstrate that it is in the public interest for the information to be refused (which is a very high hurdle, as remember that there is a presumption in favour of disclosure in both the FOI Act and the EIRs).

If your request is treated under the FOI Act, most exemptions need a public interest test as well, although some are absolute exemptions and there is no need for the authority to apply a public interest test.

The public interest test should be a balancing exercise of whether the public interest is best served by disclosure or exempting. A separate public interest test should be done for each exemption applied.

An example might be if you asked for information relating to land prices that could in the future be subject to compulsory purchase. If using the EIRs the authority would have to apply a public interest test in any event. If using the FOI the authority could apply the Section 43 relating to commercial interests. The authority would have to weigh up the public interest in each instance and give sound reasons. It is not enough for the authority to say that it believes the public interest lies in exempting; they have to say why.