IN THE MATTER OF:
THE APPLICATION OF SECTION 8 OF THE
FREEDOM OF INFORMATION ACT 2000

______

OPINION

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Introduction

  1. Section 8 of the Freedom of Information Act 2000 (“FOIA”) defines the term “request for information” for the purposes of FOIA. Among other things, a “request for information” must “state the name of the applicant and an address for correspondence”: s. 8(1)(b).
  1. I am asked to advise on the following questions:

(1)whether the requirement in s. 8(1)(b) to state the applicant’s “name” may be satisfied by providing any name, or whether the applicant’s real name must be given;

(2)if the latter, precisely what will constitute the “name” of an applicant:

(i)if e.g. the applicant regularly goes by more than one name (such as a married name and a maiden name), or if the applicant is more widely known by a pseudonym;

(ii)if the applicant is a corporate body; or

(iii)if the applicant is a sole trader;

(3)if the former (i.e. if any name is sufficient), whether there are any implications in terms of the Commissioner’s power to issue decision notices to an applicant who gives a pseudonym, and in terms of the ability of the Tribunal and the Courts to enforce the rights of such an applicant;

(4)what types of “address” will be capable of satisfying the s. 8(1)(b) requirement to state “an address for correspondence” (e.g. whether an email address is sufficient);

(5)if a postal address is required, whether this needs to be the home address of the applicant (or the registered office in the case of a corporate applicant) or whether other types of addresses would be sufficient; and

(6)if an email address would be sufficient, whether the Commissioner can validly serve a decision notice by email alone, and whether the Tribunal and/or the Courts would require a postal address in order to enforce the rights of the applicant (and, if so, what address would be necessary).

  1. After considering the role of “requests for information” within FOIA, I address each of these questions in turn below. A summary of my conclusions may be found at the end of this Opinion.

“Requests for information” under FOIA

  1. Section 8 of FOIA provides:

“(1) In this Act any reference to a ‘request for information’ is a reference to such a request which—

(a)is in writing,

(b)states the name of the applicant and an address for correspondence, and

(c)describes the information requested.

(2) For the purposes of subsection (1)(a), a request is to be treated as made in writing where the text of the request—

(a)is transmitted by electronic means,

(b)is received in legible form, and

(c)is capable of being used for subsequent reference.”

  1. The term “request for information” plays various important roleswithin the FOIA regime.
  1. First and foremost, a public authority’s duties under s. 1(1) to inform an applicant whether it holds information and/or to communicate that information to him or her only arises upon the applicant making a “request for information”.
  1. Further, where a person applies to the Commissioner under s. 50 for a decision notice, s. 50(1) makes clear that the application must relate to a “request for information” which the complainant has made to a public authority. Thus, the Commissioner cannot issue a decision notice to a complainant unless that complainant has previously made a valid “request for information”.
  1. In addition, there can only be an appeal to the Tribunal under s. 57 if there has first been a decision notice issued under s. 50. Thus, again, there can be no appeal to the Tribunal under s. 57 unless there has first been a valid “request for information”.

Question (1): the “name” of the applicant

  1. Like s. 8(1)(b) of FOIA, s. 8(1)(b) of the Freedom of Information (Scotland) Act 2002 (“FOISA”) provides that a request for information must state “the name of the applicant and an address for correspondence”. My instructions refer to the website of the Scottish Information Commissioner, which contains the following (under the “Frequently Asked Questions” heading):

“Do I have to deal with a request which comes in from someone who has obviously given me a false name, such as Mickey Mouse?

FOISA states that an information request must include the name of the applicant. This must be the real name of the applicant. So, if a request comes in from someone who has obviously given a false name, the application is invalid and the public authority does not have to deal with it....

You should also remember your duty to provide advice and assistance to an applicant under section 15 of FOISA. So, if it is obvious that a pseudonym has been used, you should tell the applicant that if they make the request under their own name then you will deal with the request. It may be that the applicant has particular reasons for not revealing their identity but rather than using a false name it is open to them to ask a friend or relative to make the request instead.”

  1. The term “name” is not defined in FOIA (or in the Interpretation Act 1978).
  1. The starting point is thus the ordinary meaning of the words used in s. 8(1)(b). On a natural construction, the words “the name of the applicant” suggest that reference is being made the applicant’s real name, rather than e.g. a pseudonym. (Indeed, hadParliament wished to indicate that a pseudonym would suffice, it seems likely that different wording - such as e.g. “a name for the applicant” - would have been used.)
  1. This construction of s. 8(1)(b) is further supported by the following reasoning:

12.1Whilst FOIA is in general “applicant blind” (in the sense that the identity of an applicant ordinarily has no impact on whether a request for information needs to be complied with), there are occasions when the identity of an applicant will be relevant for the purposes of FOIA. In particular, as my instructing solicitor helpfully points out, an applicant’s identity may be relevant in at least four circumstances: (i) when determining whether to aggregate costs for two or more requests pursuant to regulations made under s. 12(4), (ii) when determining whether a request falls within s. 14(2) as being a repeated request by the same applicant, (iii) when determining under s. 40(1) whether a request for personal data is in fact a subject access request (i.e. a request for personal data of which the applicant is the data subject) and (iv) when considering under s. 50(2)(c) whether a s. 50 application is “frivolous or vexatious”.

12.2Accordingly, there are likely to be occasions where the public authority (or the Commissioner, as regards s. 50(2)(c)) will need to know an applicant’s identity for the purposes ofprocessing a request for information under FOIA. It seems reasonable to suppose that a valid “request for information” was intended by Parliament to provide sufficient information to enable it to be processed in accordance with to the FOIA regime. Thus, it seems likely that Parliament would have intended s. 8(1)(b) to require the applicant to provide his or her real name rather than e.g. a pseudonym.

12.3In any event, given the extensive rights that FOIA affords to individuals, it is not obviously unfair to construe s. 8(1)(b) as requiring - in return -that applicants at least provide their real name.

  1. In the light of the above, I consider that s. 8(1)(b) requires an applicant to provide his or her real name rather than, e.g., a pseudonym. I accordingly agree with the view of the Scottish Information Commissioner on this issue.
  1. (Although I have not specifically been asked to consider the point, I also notethat s. 16 of FOIA arguably requires a public authority to explain to an applicant who makes an invalid “request for information” by only giving a pseudonym what s. 8 of FOIA requires in this regard. The Scottish Information Commissioner appears to have come to a similar view as regards s. 15 of FOISA.)

Question (2): what amounts to the real name of the applicant?

  1. The more difficult question is precisely what may qualify as the applicant’s real name for the purposes of s. 8(1)(b).
  1. As to this, I consider that the construction argument in §12.1-12.2 above provides a useful means of ascertaining Parliament’s likely intention.
  1. In particular, itseems that - at least ordinarily - theprovisions of FOIA that require an applicant’s identity to be known (see §12.1 above) will notin themselves require a particularly strict or formal approach to be adopted to the requirement to state the applicant’s “name”. For instance, those provisions should in general be capable of operating ifan applicant only provides a title together with his or her surname (e.g. Mr Smith), or if a female applicant uses her maiden name (e.g. because she ordinarily does so for work, etc.). Similarly, there is no obvious reason why difficulties would arise if a company did not use its full registered name, as long as it gave a name that was recognisable as referring to the same corporate entity, or if a sole trader gave his or her trading name rather than his or her actual name (or vice-versa). Thus, whilst certain of the provisions in FOIA suggest that applicants should be required to identify themselves in a request for information by providing their real name, those provisions do not indicate that this requirement needs to be approached in a particularly strict or formal way.
  1. In addition, it seems likely that FOIA was intended to create a relatively informal regime for the accessing of information by members of the public (e.g. it is not necessary to use a prescribed form in order to make a “request for information”, nor is it necessary to sign the request or serve it on the public authority in any particular manner). Against this background, it would be anomalous for s. 8(1)(b) to require a strict and formal approach to the requirement to state the applicant’s name.
  1. Accordingly, I am of the opinion that a relatively informal standard will be applied in determining whether an applicant has stated his or her real name for the purposes of s. 8(1)(b).
  1. Precisely where the line should be drawn is difficult to define in the abstract, but I consider that the guiding principle would be whether enough of a person’s full name has been provided to give a reasonable indication overall of the person’s identity(and to provide a reasonable basis for distinguishing that person from other applicants). Thus, I consider that Mr John Robert Smith could satisfy s. 8(1)(3) by stating his name - in a request for information - as “John Smith”, “J. Smith” or “Mr Smith”, but not, I think, by stating his name as simply “John” or “J.R.S.”. Similarly, John Smith & Sons Bathrooms Limited could satisfy s. 8(1)(3) by stating its name as “John Smith Bathrooms” or “John Smith & Sons”.

Question (3)

  1. Given my answer to question (1) above, question (3) dose not arise.

Questions (4) and (5): the “address” of the applicant

  1. A postal address will clearly be capable in principle of satisfying the s. 8(1)(b) requirement.
  1. It is also to be noted that the statutory wording refers to “an” address for correspondence, rather than to e.g. the applicant’s own address. The ordinary meaning of s. 8(1)(b) thus suggests that all that is required isan address that will enable correspondence to find its way to the applicant in question. Further, I do not consider that any other provision of FOIA indicates that a narrower construction is necessary. Thus, as regards question (5), I consider that an applicant may provide only a “care of” or PO Box address in his or her “request for information”.
  1. What is the position as regards email addresses?
  1. My instructions state that the Scottish Information Commissioner takes the view that a postal address is necessary to make a valid request. I am unsure whether any particular document is being referred to in this regard. In any event, the “Frequently Asked Questions” section of the website appears to suggest that the Scottish Information Commissioner has in fact (perhaps more recently) taken the opposite view:

“FOISA says that a request must contain a name and address. What if I only have the e-mail address of the applicant and not the home address?

FOISA states that a request must include an address for correspondence. The Commissioner has confirmed that an e-mail address is sufficient. However, where an email address is used, the applicant must also give their name in the body of the email to fulfil the requirement that the name of the applicant is given.”

  1. Like FOISA, FOIA does not define the term “address” or expressly state that this termincludes email addresses as well as postal addresses.
  1. Further, it may be noted that there are statutory provisions that do make specific reference to “electronic addresses”. See e.g. ss. 298 and 333 of the Companies Act 2006. Similarly, in an Act passed shortly before FOIA, Parliament provided a power to amend legislation so as (among other things) to authorise or facilitate the use of electronic communications as an alternative to correspondence by post[1], and this power has been used to add references to “electronic addresses” in various statutes (see e.g. ss. 69(7) and 176A of the Consumer Credit Act 1974). Such statutory precedents might arguably be said to suggest that by not including a specific reference to electronic addresses in FOIA, Parliament should be taken to have intended that the term “address” would refer only to postal addresses.
  1. However, although the point is not entirely clear, I prefer the contrary view. In particular:

28.1The term “address” has been used in at least one other statutory context to refer to both postal and email addresses (see s. 1 of the Legal Deposit Libraries Act 2003).

28.2Section 8(2) makes plain that a request for information may be sent to the public authority at issue via email. It is thus rather artificial to suggest Parliament would not have envisaged an email address being sufficient for the purposes of receiving any reply.

28.3Further, as has already been noted, FOIA seems to have been intended to be a relatively informal regime for accessing information (see §17 above).

  1. Accordingly, I am of the opinion that an email address is sufficient for the purposes of satisfying the requirement in s. 8(1)(b) to state “an address for correspondence”.

Question (6):might the provision of a postal address become necessarysubsequently?

The service of decisionnotices

  1. By s. 50(3)(b), the Commissioner must “serve” any decision notice on the complainant at issue. FOIA makes no special provision for what may constitute “service” in this regard. Given my answer to Question (4) above, I see no reason why the Commissioner would not be able validly to serve a decision notice on a complainant via email insofar as that complainant had given that email address as his or her “address for correspondence” in the “request for information” at issue.

The Tribunal

  1. A complainant who has been served with a decision notice may appeal to the Tribunal under s. 57 of FOIA. FOIA itself imposes no requirement that the Tribunal be provided with an address of any kind. However, rule 4 of the Information Tribunal (Enforcement Appeals) Rules 2005, SI 2005/14, provides in relevant part:

“(1) An appeal must be brought by a written notice of appeal served on the Tribunal.

(2) The notice of appeal shall-

...

(b)state-

(i)the name and address of the appellant;

...

(vi)an address for service of notices and other documents on the appellant.

(c)be signed by or on behalf of the appellant.”

  1. Given rule 4(2)(b)(vi), the reference to the “address of the appellant” in rule 4(2)(b)(i) cannot simply be to anaddress for correspondence. Rather, in my opinion, it is a reference to the appellant’s home (or, as appropriate, business)address. Thus, in order to bring an appeal to the Tribunal, an appellant must provide his or her home (or, as appropriate, its business) address.

The Courts

  1. An appeal from the Tribunal lies to the High Court (on a point of law) under s. 59 of FOIA. An Appellant’s Notice must be filed in any such appeal (see §5.1 of the Practice Direction to Part 52 of the CPR). The relevant form (form N161) makes plain that a postal addressmust be provided. However, strictly speaking, there does not appear to be rule or practice direction that requires any particular postal address (e.g. the Appellant’s home address) to be provided. In principle, it thus seems that an Appellant could use e.g. a “care of” address for the purposes of bringing an appeal.

Summary of conclusions

  1. In my opinion, the effect of s. 8(1)(b) is that a request for information must state the applicant’s real name, rather than e.g. a pseudonym. However, I consider thata relatively informal standard will be applied in determining whether an applicant has fulfilled this requirement (so that, e.g., Mr John Robert Smith may just state “John Smith”, “J. Smith” or “Mr Smith”).
  1. I also consider that the requirement in s. 8(1)(b) to state “an address for correspondence” may be satisfied by providing either a postal or an email address. A postal address need not be the applicant’s home or business address: “care of” and P.O. box addresses are sufficient.
  1. If a request for information merely provides an email address, the Commissioner may serve any subsequent decision notice on the applicant by email. Any appeal to the Tribunal (or thereafter to the High Court) will, however, require the applicant to provide a postal address.
  1. I would of course be happy to advise further on the above issues if that would be of assistance.

BEN HOOPER

11KBW

11 King’s Bench Walk

Temple

London EC4Y 7EQ

26 September 2008

IN THE MATTER OF:
THE APPLICATION OF
SECTION 8 OF THE FREEDOM
OF INFORMATION ACT 2000

______

OPINION

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Lucie Dennehy

Solicitor

Information Commissioner

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

1

[1] See s. 8(1) and (2)(b) of the Electronic Communications Act 2000.