Line to take - LTT142 - Specifying steps in relation to advice and assistance
- FOI/EIR: FOI
- Section/Regulation: s16
- Issue: Specifying steps in relation to advice and assistance
- Source: Legal Advice, Information Tribunal
- Details: Email Lucie Dennehy to Steve Wood (09 May 2008); Fitzsimmons (3 December 2008)
- Related Lines to Take: LTT137
- Related Documents: EA/2008/0043
- Contact: GF
- Date: 18/02/2009
- Policy Reference LTT142
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
The Commissioner is satisfied that implicit in s50(4) is the legal power to specify steps directing public authorities to provide advice and assistance where he has found a breach of s16.
Section 50(4) provides:
- “Where the Commissioner decided that a public authority -
- has failed to communicate information, or to provide confirmation or denial, in a case where it is required to do so by s1(1), or
- has failed to comply with any of the requirements of sections 11 and 17,
- the decision notice must specify the steps which must be taken by the authority for complying with that requirement and the period within which they must be taken.”
The Commissioner refutes the decision taken by the Tribunal in Fitzsimmons v ICO and BBC, where the IT rejected the Commissioner’s submission that there is an implicit power in s50(4) to specify a step requiring a public authority to provide advice and assistance under s16 in accordance with the s45 Code.
The Tribunal were of the view that section 50(4) set out the limits of the IC’s powers and that “insofar as non-compliance with ‘specified steps’ could lead to contempt proceedings, the clearest wording would be required to substantiate such a power and that this was not the case here” (paragraph 48). However, we are of the view that 50(4) creates an obligation on what the Commissioner must issue steps in relation to (ie s1(1), 11 and 17). Although there is no obligation for the Commissioner to order steps in relation to s16 under 50(4), he is not precluded from the ability to specify steps and therefore it is possible to specify steps in relation to breaches of the Act other than those listed in s50(4). This corresponds with the view that ICO should address any failure to give appropriate advice and assistance in decision notices relating to that particular case (rather than general or future proceedings, where a Practice Recommendation or an Enforcement Notice might be more appropriate).
Caseworkers should therefore continue to specify steps to providing advice and assistance under s16 in relation to the complaint in question.
NB The Commissioner changed his position at the Tribunal from that in the decision notice (FS50081562), in which he had originally only made a suggestion that they should contact the applicant with a view to offering advice and assistance in ‘Other matters’.