LTT192 - Rejecting procedural exemptions / exceptions

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When the Commissioner has not accepted an authority's reliance on a procedural exemption / exception then he will issue a decision notice stating that the authority is not relieved of its obligations under the FOIA / the EIR and ordering steps to either comply with s1(1) / reg 5(1) or issue a valid refusal notice.

Further Information

Where an authority has claimed that s12 or s14 of the FOIA (or the EIR equivalents) apply, then it will not generally have examined the information in question. Therefore it will not generally be in a position to make arguments in relation to any exemptions or exceptions which are dependent on the nature and content of the information (*). Expecting an authority to consider the application of exemptions when it is relying upon such provisions would also seem to defeat the object of them being claimed in the first place.

Where, therefore, the Commissioner has rejected an authority’s reliance on a procedural exemption or exception, he will not necessarily be in a position to determine whether a breach of s1(1) or reg 5(1) has occurred.

The correct approach in this case is therefore to:

  • issue a decision notice giving the determination on the procedural exemption or held / not held issue;
  • find only those breaches which can be determined without establishing whether there was a duty to disclose the information at the time of the request, eg s17 or reg 14 (this may mean that no breaches are specified at all); and
  • include steps requiring the authority to either comply with s1(1) / reg 5(1) or to issue a new refusal notice giving a valid grounds for refusal.

If no breaches are found, the decision notice may contain wording such as "the public authority is not relieved of its obligations under the FOIA by virtue of section 12" or as appropriate. It should also state that the public authority failed to deal with the request in accordance with the Act / EIR in that it incorrectly claimed that section 12 / 14 / EIR equivalent was engaged.

(*) Note: In rare cases an authority may have cited both a procedural and another exemption for the same information, for example, it has refused the information under s36 but subsequently determined that it wishes to treat the request as vexatious. In such cases the case officer may investigate both exemptions rather than following the approach in this line.

Further investigation after the response

If the public authority issues a further refusal notice in accordance with the decision notice, but the requester remains dissatisfied and makes a further complaint to the Commissioner, the Commissioner may then be required to undertake a second investigation, considering any exemptions or exceptions which are now being claimed by the authority.

The outcome of this investigation will not be affected by the previous decision notice. In other words:-

  • the date of the request will remain the date on which the authority received the request, not the date of the initial decision notice;
  • application of exemptions and the public interest test will be as at the time of the request; and
  • procedural breaches will be as at the time of the internal review (if one was provided) or the time for compliance as per LTT29

This will mean that different breaches may be found in the final decision notice.