In a recent Information Tribunal decision, Mathieson v Information Commissioner and Chief Constable of Devon & Cornwall, the First Tier Tribunal upheld an Information Commissioner decision and declined to order disclosure of the locations of ANPR (Automatic Number Plate Recognition) cameras. The Tribunal was satisfied that s24 FOIA (purposes of national security) and all limbs of s31(1) (prejudice to detection of crime etc.) were all engaged and determined the public interest against disclosure.

However what is missing from the judgement and earlier decision notice is any consideration of the duty to advise and assist, in particular consideration of whether a more limited disclosure e.g. location by postcode district rather than precise location might have been possible without engaging the exemptions, or with a different public interest conclusion. This is no doubt technically correct, as where the terms of a request are clear, as this was, the s45 FOIA Code of Practice does not require any assistance be provided to the applicant, and accordingly there can be no breach of s16. This illustrates a regrettable limitation of the s45 Code. By contrast, if the request had fallen to be considered under EIR,  the equivalent code under Regulation 9, there may well have been a breach as that code requires an authority to “be flexible in offering advice and assistance most appropriate to the circumstances of the applicant” and that can include advice on a more limited disclosure if the actual information requested is exempt. The aim is to help applicants make good use of the Regulations, not as in FOI to ensure accurate but unhelpful refusals.

It was also an interesting example of an FOI refusal being upheld when it was, for the most part accepted that the information was effectively in the public domain, because the cameras were not covert, and the locations could be tracked down easily if sufficient resources were devoted to the exercise.

I wonder if the cameras are sufficiently distinctive to enable a smart programmer to search for them by interrogating google streetview …

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