Line to take - LTT29 - Finding in breach of sections 1, 10 or 17

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  • FOI/EIR: FOI
  • Section/Regulation: s1, s10, s17, s50(4)
  • Issue: Finding in breach of sections 1, 10 or 17
  • Source: Policy Team, IT, GS
  • Details: Bowbrick / Nottingham City Council; King / DWP (20 March 2008); Mcintyre / MOD (11 February 2008)
  • Related Lines to Take: LTT39, LTT47, LTT63, LTT101
  • Related Documents: Awareness Guidance 11, EA/2005/0006 (Bowbrick), EA/2007/0085 (King), EA/2007/0068 (Mcintvre), Robust case handing Policv; Good Practice Guidance No.5
  • Contact: LA/HD
  • Date: 24/02/2009
  • Policy Reference: LTT29
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

The Commissioner will consider what, if any, procedural breaches have occurred at the time of completion of the internal review. If the public authority has not carried out an internal review or where no valid response to the request was made at all, then the Commissioner will consider the position as it stands at the statutory time limit for compliance under s.10.

Therefore the Commissioner will always find a breach of s.1 where the public authority has failed to provide disclosable information at the time of the completion of the internal review. There may also be additional breaches of sections 10 and/or 17 depending on the circumstances of each case.

Further Information

Background

Section 1 of the FOIA provides:

“(1) Any person making a request for information to a public authority is entitled -
(a) to be informed in writing by the public authority whether it holds the information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.”

Section 10(1) of the FOIA provides:

“...a public authority must comply with section 1(1) promptly and in any event not later than the twentieth working day following the date of receipt.”

In the past, the Commissioner’s approach to finding procedural breaches has not been consistent.

King v Information Commissioner & the Department for Work and Pensions (2008)

In this case, the DWP provided information to the complainant after the date of his complaint to the ICO, but before the Commissioner’s investigation had commenced. The Commissioner found the public authority to be in breach of section 10 only. On appeal, the Tribunal considered whether the Commissioner had erred in law in not finding a breach of section 1 of the Act.

The Tribunal stated that the wording of section 50 of the Act supported the appellant’s contention that the Commissioner “should be considering the facts as they existed at the date that the Commissioner received the complaint” as, when making a complaint, the complainant is “applying for a decision whether the request has been dealt with in accordance with part I (as opposed to ‘is being dealt with)” and that section 50(2) states “on receiving an application under this section, the Commissioner shall make a decision...” (the Tribunal’s emphasis) (paras 83 & 84). The Tribunal decided that the Commissioner was wrong in law to find that the DWP had not breached its obligations under section 1 FOIA.

At paragraph 87, the Tribunal also stated that failure to provide disclosable information by the date of the complaint to the Commissioner would constitute a breach of section 1 of the FOIA and in addition would also constitute a breach of either section 10 or section 17 FOIA, in relation to the time limit, depending upon the circumstances of the case.

In short, the Tribunal were making it clear that in this case the latest date as to when a decision should be made regarding section 1 is the date upon which the valid complaint is made to the ICO. The Commissioner’s view is that this does not preclude finding a section 1 breach at a date between that of the internal review and that upon which a valid complaint is accepted by the ICO.

Mcintyre v Information Commissioner & Ministry of Defence (2008)

In this case, the MoD initially refused to disclose the requested information citing s.36. However, following the internal review, they did release most (though not all) of the information. Although the issue of procedural breaches was not key in this case, the Tribunal did comment at para 38:

“...the Act encourages or rather requires that an internal review must be requested before the Commissioner investigates a complaint under s50. Parliament clearly intended that a public authority should have the opportunity to review its refusal notice and if it got it wrong to be able to correct that decision before a complaint is made...”

The Tribunal in this case seem to suggest that a public authority has up until the conclusion of the internal review to remedy any breaches but that the conclusion of the internal review is the point at which the Commissioner should make his decision as to which procedural breaches have occurred, if any.

The Commissioner’s Approach

The Commissioner acknowledges that the Tribunal in King took the position that the relevant cut-off point was the date upon which a valid complaint was made to the ICO and that the Tribunal in Mcintyre seemed to suggest that this point was the conclusion of the internal review.

The Commissioner’s approach will be to consider the position at the time of the completion of the internal review although in some cases he will look at the circumstances as they stood at the time for statutory compliance (*). Such cases will include where the public authority has failed to carry out an internal review or where no valid response to the request was made at all.

This should not be taken to imply that breaches of sections 1, 10 and 17 must always be included in decision notices where those elements of the request have been resolved during the course of the investigation (indeed to do so would limit the opportunity to fully utilise the robust case handling policy - see link below). The Commissioner does not need to seek the complainant’s permission to withdraw these elements of the complaint and he will use the ‘scope of the case’ section of a decision notice to set out which elements of a case have been investigated in full and are covered by the decision notice. If it is considered necessary to record breaches of the Act, in relation to the parts of a request which have been resolved, the decision notice may do so.

(*) - Note

The date for statutory compliance is usually 20 working days after the date of the request. This has been extended for specific public authorities and in certain circumstances in accordance with the ‘Time for Compliance Regulations’ see LTT47.

In addition, under s10(3) a public authority may extend the time for compliance where it is necessary to do so in order to properly consider the public interest in maintaining an exemption. In such cases the public authority is still required to cite and explain the exemption claimed within the 20 working days. The extension can only be for as long as is reasonable in all the circumstances. The Commissioner’s Good Practice Guidance 4 indicates that in no case should this be more than an additional 20 working days, i.e. 40 working days in total. Therefore where a public authority takes longer than 40 working days to comply with a request it will have breached s10(1) unless the Commissioner is persuaded that such an extension is reasonable because of exceptional circumstances. Any extension beyond the additional 20 working days may however raise good practice issues and should be referred to the Enforcement team.

Below is a table setting out the potential breaches arising in relation to sections 1, 10 and 17.

Instructions for using the Table

Upon completion of an investigation there will be one of four outcomes; (1) the information requested is not held, (2) the information is held and should be released, (3) the information is held but should not be released, (4) the public authority is not required to confirm or deny whether the information is held.

Once the case outcome has been determined then use the table to identify what the public authority’s obligations were in those circumstances and what breaches arise if the public authority has failed to meet those obligations. It is important to read the whole section of the table that relates to the particular outcome you have reached in order to fully determine the public authority’s obligations in those circumstances. (Note: it is conceivable that you will reach different outcomes in respect to different pieces of information captured by a request).

table

Case outcome Relevant section of the Act Description of action required by PA (failure to take such action will constitute a breach) Additional information
Information requested is not held s1(1)(a) PA should confirm to the complainant that the information is not held The Commissioner will find a PA in breach of s1(1)(a) if confirmation is not provided by the completion of the internal review or the time for statutory compliance (*)
s10(1) PA should provide confirmation within 20 working days If the PA does not carry out this action within 20 working days, the Commissioner will find a breach of section 10(1) regardless of the date of the internal review or the time for statutory compliance (*)
Information requested is disclosable and should be provided s1(1)(a) PA should confirm to the complainant that the information is held The Commissioner will find a PA in breach of s1(1)(a) if confirmation is not provided by the completion of the internal review or the time for statutory compliance (*)
s10(1) PA should provide confirmation within 20 working days If the PA does not carry out this action within 20 working days, the Commissioner will find a breach of section 10(1) regardless of the date of the internal review or the time for statutory compliance (*)
s1(1)(b) PA should provide the information to the complainant The Commissioner will find a PA in breach of s1(1)(b) if information is not provided by the completion of the internal review or the time for statutory compliance (*)
s10(1) PA should provide the information within 20 working days If the PA does not carry out this action within 20 working days, the Commissioner will find a breach of section 10(1) regardless of the date of the internal review or the time for statutory compliance (*)

onwards

We have set out a number of example scenarios, which may assist case officers in identifying which breaches apply. This is absolutely not an exhaustive list. Case officers are requested to contact the Policy team, prior to drafting a DN, should they be unsure as to which breaches apply.

Example 1

  • A public authority states that it does not hold the information requested.
  • It provides this confirmation after 30 working days (and no internal review is carried out).
  • The ICO is satisfied that the information is not held.

Outcome

  • The Commissioner will find the PA to have breached section 1(1)(a) (we are not required to consider section 1(1)(b) as we are satisfied the information isn’t held).
  • The Commissioner will find the public authority has breached section 10(1), by failing to respond within 20 working days.
  • The failure to carry out an internal review should be referred to the Enforcement team to establish if this is a general approach.
  • The DN will not require any steps to be taken, although where the public authority does not generally provide an internal review, this should be referred to in the ‘other matters’ section.

Example 2

  • A public authority issues a refusal notice which confirms they hold the requested information and also explains which exemption they believe is engaged and why.
  • The refusal notice is issued 36 working days after the request.
  • The public authority carries out an internal review 30 workinq days thereafter i.e. 66 working days after the date of the request.
  • The ICO considers that the information should be provided to the complainant.

Outcome

  • The Commissioner will find the public authority has complied with section 1(1)(a).
  • The Commissioner will find the public authority in breach of section 10(1) by failing to confirm within 20 working days.
  • The Commissioner will find the public authority in breach of section 1(1)(b) for incorrectly refusing to make the requested information available by the date of the internal review.
  • The Commissioner will find the public authority in breach of section 10(1) for failing to provide the requested information within 20 working days.
  • The Commissioner will find the public authority in breach of section 17(1) by issuing the refusal notice late.
  • The Commissioner will find the public authority has complied with sections 17(1)(a), (b) and (c) by explaining which exemption it believed was applicable and why.
  • The completing of the internal review outside of the Commissioner’s guidance should be referred to the Enforcement team and included in an ‘other matters’ section of the decision notice.

Example 3

  • A public authority issues a refusal notice which confirms they hold the requested information but it does not cite an exemption or explain why the information is to be withheld.
  • The refusal notice is issued after 44 working days and the public authority does not carry out an internal review.
  • The ICO considers that the information should be withheld from the complainant.

Outcome

  • The Commissioner will find the public authority in breach of section 1(1)(a).
  • The Commissioner will find the public authority in breach of section 10(1) for failing to provide this confirmation within 20 working days.
  • The Commissioner will find the public authority has not breached section 1(1)(b) as the information is considered exempt from disclosure.
  • The Commissioner will find the public authority in breach of 17(1) by providing the refusal notice late.
  • The Commissioner will find the public authority in breach of sections 17(1)(b) and (c) by issuing a technically defective refusal notice.
  • The failure to carry out an internal review should be referred to the Enforcement team.
  • The DN will not require any steps to be taken but in most cases will make reference to the lack of internal review in an ‘other matters’ section.

Example 4

  • A public applicant requests two items of information, (i) and (ii).
  • The public authority issues a refusal notice after 29 workinq days and confirms that it holds the requested information but claims request (i) is exempt under sections 38 and 40 of the Act and that the information relating to request (ii) is exempt under section 41 of the Act. Both of the exemptions are stated in full and the public authority explains why it believes they are applicable. The public interest test is also explained in full, where relevant.
  • At the internal review stage the public authority decides that it claimed the wrong exemptions in relation to request (i) and that section 41 applies to both requests.
  • The applicant complains to the ICO about the continued withholding of the information.
  • The ICO decides the exemptions were correctly applied.

Outcome

Request (i)
  • The Commissioner will find the public authority has complied with section 1(1)(a).
  • The Commissioner will find the public authority has breached section 10(1) by failing to confirm it held the information within 20 working days.
  • The Commissioner will not find the public authority to have breached section 1(1)(b) as it is not required to provide the information.
  • The Commissioner will find the public authority has breached section 17(1) because it issued the refusal notice late.
  • The Commissioner will find the public authority has not breached sections 17(1)(a), (b) and (c) because the original refusal notice was amended by the completion of the internal review.


Request (ii)
  • The Commissioner will find the public authority has complied with section 1(1)(a).
  • The Commissioner will find the public authority has breached section 10(1) by failing to confirm it held the information within 20 working days.
  • The Commissioner will find the public authority has not breached section 1(1)(b) as it is not required to provide the information.
  • The Commissioner will find the public authority has breached section 17(1) as it issued its refusal notice late.
  • The Commissioner will find the public authority has complied with sections 17(1 )(a), (b) and (c).