LTT187 - Investigating procedural breaches - gateway line

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Line to take

Where a full investigation has been carried out, including consideration of any exemptions or exceptions claimed, procedural breaches are specified in LTT29.

In other circumstances, where we are issuing a DN without a full investigation, then this gateway line to take should be used to identify which line to read for the correct approach.

For background explanation of this approach, please read the briefing note.

Further Information

Approach to be followed

Fully investigated case - in fully investigated cases, the Commissioner seeks to determine whether a breach of s1(1)(b) of the FOIA or reg 5(1) of the EIR has occurred. In order to do this he will need to establish whether or not there was the duty, as at the date of the request, to provide information. This normally requires consideration of any exemptions or exceptions claimed by the public authority, and may result in steps requiring the authority to disclose the disputed information. In these cases, any breaches of s1(1)(b), 10 or 17 of the FOIA or reg 5(1), 5(2) and 14 of the EIR should be determined in accordance with LTT29

Fully investigated for s.1(1)(a) duty only case - in cases where the public authority is relying on an exclusion from the duty to confirm or deny, the Commissioner will investigate the application of 1(1)(a) only if the Commissioner finds that the authority did have a duty under 1(1)(a) at the time of the request then the steps in the decision notice will be:

  • to confirm or deny whether information is held, and
  • in relation to any information which is held either to provide it or to issue a valid refusal notice citing exemptions from section 1(1)(b).

Any breaches should be determined in accordance with LTT29

This approach will also apply in the (relatively rare) circumstances in which a public authority is claiming an exception from the duty to confirm or deny under the EIR, i.e. reg 12(6) or reg 13(5).

In other circumstances, the line to consult is indicated below.

  • The requested information has been disclosed in full by the time of the complaint to the Commissioner — see LTT188
  • The requested information has been disclosed during the Commissioner's investigation — see LTT188
  • The public authority has not provided any response to the request — see LTT189
  • The public authority has provided a substantially inadequate response, eg. refusing without referring to exemptions / exceptions under either piece of legislation — see LTT190
  • The public authority has provided a refusal notice referring to the FOIA when the request should have been considered under the EIR (or vice versa) — see LTT190
  • The body receiving the request has claimed that it is not a public authority but the Commissioner has found that it is — see LTT190
  • The request has been considered under the EIR but no internal review has been carried out — see LTT191
  • The Commissioner has rejected the authority's reliance on s12 or s14 of the FOIA or regulation 12(4)(a), (b) or (c) of the EIR — see LTT192
  • The public authority has claimed that no (or no further) information is held but the Commissioner has found that on the balance of probabilities further information is held — see LTT193

Cases in which only part of the request / information is fully investigated

In some cases, part of the information covered by the case will be covered by one of the lines 187 - 192 above, and part will not. For example, a request may cover some information which should have been considered under the EIR and some which should not, or some information may have been refused under a procedural exemption and some under an exemption from Part II.

The usual approach will be to include our findings on all the information in the same decision notice (except for any part of the case which the requester has withdrawn). In some cases, however, it may provide a speedier outcome for the complainant to issue a short decision notice in respect of certain information whilst other information is still under consideration. For example, if some of the information is environmental, the authority may be required to reconsider this information under the EIR and a short DN could be issued to address this point whilst other non-environmental information was still under investigation.

This approach should be used with caution as in some cases it would cause additional delay or confusion for the complainant. Early input from a signatory is advisable if you are considering this option.