Line to take - LTT92 - Timing at which exemptions and public interest test are to be applied

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  • FOI/EIR: FOI, EIR
  • Section/Regulation: s2, reg 12(1)
  • Issue: Timing at which exemptions and public interest test are to be applied
  • Source: Information Tribunal
  • Details: Campaign Against Arms Trade / MoD (26 August 2006); Dept for Communities & Local Government (22 July 2008); DBERR / Friends of the Earth (29 April 2008); Office of Government Commerce / House of Commons (11 April 2008) (High Court decision)
  • Related Lines to Take: LTT183
  • Related Documents: EA/2007/0072 (DBERR), EA/2007/0069 (DCLG), EA/2007/0040 (CAAT)
  • Contact: HD/GF
  • Date: 19/11/2010
  • Policy Reference: LTT92
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT


Line to take

Consideration of the exemptions and public interest test is to be based on the circumstances as they existed at the time of the request or at least by the time for compliance with sections 10 and 17 FOIA.

Although, matters which were relevant at the time of the request but which only later came to light may also be taken into account.

However, if circumstances change post-request to the extent that disclosure would now be undesirable, then the Commissioner can recognise this by indicating that no steps are required in order for the public authority to comply with the Act.


Further Information

The Tribunal has considered the time at which to apply the exemptions and the public interest test in a number of cases and has come to a number of conclusions. The Commissioner has previously followed decisions of the Tribunal which stated that the ICO should make its decision by reference to the time the request was internally reviewed.

However the Commissioner will now follow the clear indication provided by the Tribunal in the case of the Department for Business, Enterprise and Regulatory Reform (DBERR) and the Friends of the Earth, in which it was said that “the timing of the application of the test is at the date of the request or at least by the time of the compliance with sections 10 and 17 FOIA” (para 110).

The Tribunal went onto say that it was not Parliament’s intention to allow events that took place after the request to be considered as part of the public interest test despite arguments that this could lead to artificial conclusions, particularly where a new and later request could be made with a different outcome.

The Tribunal in the case of the Department for Communities and Local Government and the Information Commissioner also supported this approach be referring to the wording of s50. At paragraph 14, they said — “the reference to whether the request ‘has been dealt with’ seems to us plain in that it refers back to the time of the request and decision to disclose (or not to disclose). This also makes sense as there needs to be a degree of certainty for any public authority and for any subsequent appeal...”.

Therefore, the Commissioner will consider the circumstances at the time of request or at least by the time for compliance with sections 10 & 17 although, as the Tribunal in DBERR pointed out, if it is the case that matters which were relevant at the time of the request only came to light after the date of the request, these too can be considered.

However, if the Commissioner decides that the requested information should be disclosed on the basis of the circumstances at the time of the request but that later events would now make it undesirable to disclose, then the Commissioner can indicate in the "steps required" section of the decision notice that no steps are in fact required in relation to this aspect of the investigation in order for the public authority to have complied with the Act. See [LTT183]].

The Commissioner is aware of the different view expressed in the more recent case of the Campaign Against the Arms Trade (CAAT) v ICO and Ministry of Defence (EA/2006/0040), where the Tribunal recommends that the authority should consider its response at the time of the conclusion of the internal review. However, the Commissioner maintains the line above and accordingly, the status of this (and other similar) Tribunal decisions is red and should not be followed.