Line to take - LTT102 - Failure to cite specific exception section number (EIR)
- FOI/EIR: EIR
- Section/Regulation: reg 14(3)
- Issue: Failure to cite specific exception section number
- Source: GS; Policy Team
- Details: n/a
- Related Lines to Take: LTT101
- Related Documents: n/a
- Contact: HD
- Date: 15/09/2008
- Policy Reference: LTT102
Line to take
A public authority will breach Regulation 14(3)(a) where it only refers to any exception claimed by name or description of the subject matter of the exception.
A public authority will also breach Regulation 14(3)(a) where it fails to refer and explain the application of the specific section number and sub-section of the exception claimed.
This issue does not appear to have yet been considered in a decision notice under EIR, but under the FOIA a discretionary approach had been adopted on a case-by-case basis to determine what constitutes a breach of s17(1)(b). For example, where a public authority failed to cite s42 FOIA but used the words “legal professional privilege”, this was not considered a breach whereas a public authority using the phrase ‘commercially sensitive’ information without reference to s43 FOIA may have been held to be in breach of s17(1)(b).
Now, as a matter of good practice and to promote consistency, the Commissioner will adopt the following approach:
Where a public authority only refers to the exception by name or description this will be a breach of Regulation 14(3)(a). For example, where a public authority just uses the words ‘commercial confidentiality’ or ‘course of justice’ without reference to any section number, this will be a breach of Regulation 14(3)(a).
However, given the structure of the Regulations, the Commissioner will also find a breach of Regulation 14(3)(a) where a public authority fails to specify which sub-section(s) of the Regulations are being claimed because without this level of detail, the complainant cannot be certain of the grounds on which the information is being withheld.
For example, where a public authority just cites Regulation 12(4), the complainant could not be certain which of the several activities mentioned therein would be prejudiced by the disclosure of the withheld information and thus would be unable to adequately challenge its application. Therefore, the Commissioner would expect to see the full section details provided for clarity, e.g. Regulation 12(4)(a) or 12(4)(e).
Given the stance adopted above and as the ICO is the body responsible for promoting good FOIA practice all decision notices should, where appropriate, cite the full exception reference to include the section and sub-section numbers.