Line to take - LTT121 - Information held (on balance of probabilities) test

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  • Section/Regulation: s1, reg 5
  • Issue: Information held (on balance of probabilities) test
  • Source: Information Tribunal
  • Details: Linda Bromley & Others / Environment Agency (31 August 2007); Fowler / Brighton & Hove City Council (6 November 2007); Christopher Ames / Cabinet Office (24 April 2008); B Francis / South Essex Partnership Foundation NHS Trust (21 July 2008); Mersey Tunnel Users Association / Halton Borough Council (23 June 2009)
  • Related Lines to Take: LTT2, LTT31, LTT76, LTT88, LTT89, LTT116
  • Related Documents: EA/2006/0072 (Bromley), EA/2006/0071 (Fowler), EA/2007/0110 (Ames), EA/2007/0091 (Francis), EA/2009/0001 (MTUA), FOI Procedures Manual, s46 Records Management Code
  • Contact: HD/KP
  • Date: 27/08/2010
  • Policy Reference: LTT121
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

The normal standard of proof to apply in determining whether a public authority does hold any requested information is the civil standard of the balance of probabilities.

In deciding where the balance lies, the Commissioner will consider the scope, quality, thoroughness and results of the searches carried out by the public authority as well as considering, where appropriate, any other reasons offered by the public authority to explain why the information is not held. The Commissioner will also consider any evidence that further information is held, including whether it is inherently unlikely that the information so far located represents the total information held.

Further Information

In the case of Linda Bromley & others and the Environment Agency (EA), the applicants framed their request widely by asking for any files in connection with a flood bank near their homes. They said the files should go back to at least 1963. The EA disclosed some information but the applicants felt the search had been poorly and incompetently conducted and that further relevant documents were in existence but had not been discovered. The Commissioner concluded that the information was not held. The Tribunal said:

...we must consider whether the IC’s decision that the EA did not hold any information covered by the original request, beyond that already provided, was correct. In the process, we may review any finding of fact on which his decision is based. The standard of proof to be applied in that process is the normal civil standard, namely, the balance of probabilities...” (para 10) because “...there can seldom be absolute certainty that information relevant to a request does not remain undiscovered somewhere within a public authority’s records...”(para 13).

The Tribunal also indicated that in considering where the balance lies - “...we may only consider, in fight of the evidence placed before us, whether the scope, quality, thoroughness and results of those searches entitles us to conclude that the Environment Agency does not hold further information falling within the scope of the original request....” (para 12).

The Tribunal in the later case of Fowler and Brighton & Hove City Council suggested that such evidence may include “...evidence of a search for the information which had proved unsuccessful: or some other explanation for why the information is not held. This might be evidence of destruction, or evidence that the information was never recorded in the first place....” (para 24).

Therefore the Commissioner will look at both:

  • the scope, quality, thoroughness and results of the searches and
  • other explanations offered as to why the information is not held.

(i) The search

The Tribunal in Bromley said it would “resist” the applicant’s arguments that issues such as the seniority of the individuals who conducted the searches or the adequacy of the FOIA training should be taken into account. Instead, they indicated that the application of the balance of probabilities test requires the consideration of a number of factors including:

  • ...the quality of the public authority’s initial analysis of the request,
  • the scope of the search that it decided to make on the basis of that analysis and
  • the rigour and efficiency with which the search was then conducted...” (para 13).

This approach led the Tribunal to conclude that all of the documents or categories of documents the complainants requested were not held, for example:

  • the complainants requested any documents relating to planning decisions from the 1960s. The EA searched the paper files and also microfiche records provided by its predecessors (Severn Trent River Board, Severn Trent Water Authority and the National Rivers Authority). Based on the public authority’s evidence, the Tribunal said that they felt that the EA had carried out “... an appropriately rigorous and focused search...” (para 15) and that the importance of these documents (to the complainants at least) was not enough to persuade the Tribunal that the documents were held.
  • the complainants requested any documents from the Severn Trent Regional Flood Defence Committee in relation to their flood bank. The EA indicated that the Committee only considered high level matters, not individual flood defences, but nonetheless carried out a search of the papers for the committee meetings for the relevant period but found no relevant material. At paragraph 30, the Tribunal said that the public authority had fulfilled its obligations under the EIRs.

In the case of Christopher Ames and the Cabinet Office the applicant wanted to know which official(s) had amended the executive summary of the dossier on “Iraq’s Weapons of Mass Destruction” between 10 and 16 September. The Tribunal heard evidence from the Cabinet Office that they had searched both hard and soft copy records as follows:-

...the hard copy information searched included all printed emails, written drafting comments and meeting notes dated between 11 and 16 September inclusive. The hard copy of the draft dossier dated 16 September was also read....
Electronic information searched also included saved emails, drafting comments between 11 September and 16 September 2002 inclusive and the soft copy of the draft dossier dated 16 September. Electronic searches included searches of the metadata held upon the draft of the dossier produced on 16 September i.e. the draft produced immediately after the time frame of Mr Ames’ request. Soft copy searches were assisted by the staff of LogicaCMG, who are contracted to support the relevant IT system....” (para 12).

The Tribunal said the search of the metadata was the most obvious and important search. Searching the written drafting comments, emails and meeting notes was also appropriate. This search strategy allowed the Tribunal to firmly conclude that on the balance of probabilities, the Cabinet Office did not hold any information within the scope of the request and that “…the Tribunal regards the scope of this search to be reasonable on the face of it and is not aware of any other material that ought to have been searched....” (para 15).

The Tribunal also said at paragraph 10 that in “...considering the probabilities and in particular the quality of any search carried out it may on occasion be relevant to bear in mind the Tribunal’s comments in relation to deleted data in the case of Harper v Information Commissioner (EA/2005/0001 15.11.2005) and the contents of the Code of Practice issued by the Lord Chancellor under s.46 of the Act...”.

See LTT2 for the further details of the ICO’s interpretation of the Harper decision although, in short, the ICO’s view is that information which has been properly and intentionally deleted from a recycle can but not yet overwritten is not held.

The Commissioner acknowledges that his decision as to what would represent an appropriate search or search strategy will have to depend on the circumstances of each case but he would expect to see evidence of either a reasonable and logical search strategy or a thorough search of both paper and electronic records although if the public authority is arguing that it would exceed the appropriate limit to confirm whether or not it holds the requested information, see LTT31.

The scope and thoroughness of the search required may be determined in part by any other evidence that information is likely to be held. For example, the Tribunal in the case of Mersey Tunnel Users Association (MTUA) v ICO and Halton Borough Council (EA/2009/0001) found that "[i]t is clear from the paucity of the documents disclosed as well as their content that the existence of further information was more likely than not" (para 85). Therefore it was "unreasonable" for the Commissioner to have accepted the authority's assurances that thorough searches had been conducted. The Tribunal in this case cited a previous Tribunal decision (Babar v ICO and British Council EA/2006/0092) which found that the likelihood of information being held will be relevant to the level of search required.

An unexpectedly small quantity of information should also flag up the possibility that the authority is applying too narrow an interpretation of the request, as was the situation in the MTUA case.

(Also see LTT76 which states that information which has been identified, selected, downloaded and saved or printed by a public authority from a third party's online database will be held by that public authority. In most cases public authorities will not hold any of the remainder of the information held in such a database).

(ii) Other explanations as to why the information is not held

a) No business need to hold the information / documents were never created

The Tribunal in Bromley said that as the EA did not own or take responsibility for a number of features to which some of the requested information related, the Tribunal accepted that the public authority would not hold information on those features. The Tribunal felt supported in making this finding given that the applicants could not provide any evidence to the contrary (paras 16, 20 and 27).

The Tribunal in Bromley also said that their role was not to comment on the EA’s administration so that whilst the applicants may have thought that notes should have been made on site visits (para 18), that telephone calls should have been noted and recorded (para 23) and that documents justifying or explaining why previously held views had been superseded (para 25), the Tribunal said its role was “...not to assess the quality of the EA’s administration but to determine the straightforward issue...” of whether the information was held (para 18). Also at paragraph 28 they said “...we do not feel qualified, in any event, to tell a complex national organisation discharging statutory responsibilities how it should operate record-keeping systems in support of its functions...” In response to this point, the Commissioner would say that whilst it may not be the Tribunal’s role to comment on a public authority’s system of record keeping, it is does fall within the Commissioner’s remit via the s46 records management code.

The Tribunal in Ames said “...while we are not very impressed by the quality of the record keeping revealed by the search ... we do not think that it is so inherently unlikely that there is no such audit trail that we would be forced to conclude that there is one in spite of the evidence put forward by the Cabinet Office...” (para 15).

The Commissioner’s approach is that a poor records management system does not necessarily mean that the information must inevitably be held. Instead, the Commissioner is looking for a rigorous and well focused search which takes into account the limitations imposed by a historically inadequate filing system.

b) Likelihood that information has been destroyed

(i) Sensitivity / importance of the subject to which the information relates

The Commissioner is concerned with an objective level of sensitivity or seriousness which would warrant retention of the information rather than considering whether the information is of subjective importance. For example, the complainants in the Bromley case were convinced that not all the information they requested could have been destroyed. The Tribunal said: “...the appellants’ conviction on this issue and the understandable importance of the informal flood defence from their point of view is not enough to persuade us that the documents must still exist, particularly in the absence of any evidence presented to us which might have undermined what we were told by the EA...” (para 15).

However, in the case of Francis and South Essex Partnership Foundation NHS Trust, the applicant asked for a number of documents relating to the psychiatric care of her son up to his death and also details surrounding his death. The NHS Trust had already provided the applicant with a large number of relevant documents but said that further information could not be found. At paragraph 20, the Tribunal said:

".we find it unlikely that the records have been either destroyed or removed from the Trust altogether Given the sensitivity of some of the records, apparent from the Chief Executive’s personal involvement in obtaining information back in early 2000, it seems to us very unlikely that the Trust has not kept a record somewhere. More likely, on a balance of probability, is that the records are still held by the Trust, but cannot now be located in the time required by the Act to be spent searching for them...

At paragraph 48, the Tribunal concluded that on the balance of probabilities, the Trust did hold further information but that no further searches were required as the Trust had already exceeded the costs limit as set out in s12.

However in the case of Ames, the Tribunal said that the Iraq dossier was “...on any view an extremely important document and we would have expected, or hoped for, some audit trail revealing who had drafted what.... “. However, it said that the evidence of the Cabinet Office was such that the Tribunal could nonetheless conclude that they did not “...think that it is so inherently unlikely that there is no such audit trail that we would be forced to conclude that there is one...” (para 15).

Therefore, where the subject matter is objectively important, the Commissioner will consider the circumstances of the case and any arguments put forward by the complainant to consider whether it is so inherently likely that the information is held to allow him to conclude that it is despite the evidence of the public authority to the contrary. The Commissioner notes that in applying this test, the Tribunal in Francis concluded that the material information was held whilst the Tribunal in Ames found that the requested information was not.

(ii) Age of the information & destruction schedules

The Tribunal in Bromley said at para 15 that they found it was "...entirely plausible that documents that would be approximately forty years old would have been destroyed at some point...” particularly given the number of reorganisations prior to the creation of the Environment Agency.

The Tribunal in Fowler suggested that they may be persuaded that the information is not held where there is evidence of destruction. If a public authority raises such an argument, the Commissioner would look to see evidence of destruction such as a retention policy or a disposal schedule.

For guidance, the Commissioner will look to the s46 records management code which may be used either to support a challenge to the public authority’s assertion that the information is not held or may be referenced in the other matters section to promote better record keeping.

Late discovery of relevant documents

In the Bromley case, as a result of the applicant’s persistence in corresponding with the EA on this matter, further information came to light which was relevant to their request after the EA’s initial response that they had disclosed all documents they had. Also when, preparing for the appeal before the Tribunal, the EA unearthed a number of other documents which it said did not fall within the scope of the original request but which were disclosed to the applicants as a matter of good will. These late discoveries led the applicants to believe that the other information they requested was held by the public authority.

The Tribunal said “ is fair to say that one or two mistakes and mishaps that occurred within the Environment Agency during the course of the matter did not help in convincing the Appellants that the various searches were conducted with appropriate rigour and competence...” (para 4).

The Tribunal also said that “... other matters may affect our assessment at each stage, including, for example, the discovery of materials elsewhere whose existence or content point to the existence of further information within the public authority which had not been brought to light....” (para 13).

However, the Tribunal went onto say that they were particularly impressed by the care taken by the public authority in revisiting the search in preparation for the appeal and concluded that they had no difficulty in deciding that the EA held no further information relevant to the request. Further, they said “....there can seldom be absolute certainty that information relevant to a request does not remain undiscovered somewhere within a public authority’s records. This is particularly the case with a large national organisation like the Environment Agency, whose records are inevitably spread across a number of departments in different locations. The Environment Agency properly conceded that it could not be certain that it holds no more information “ (para 13).

The Tribunal in the MTUA / Halton case distinguished the circumstances of that case from those of Bromley. In MTUA, the information in question “related to a contained project [and] would have been kept at no more than a few readily identifiable locations” (para 84). Therefore the small amount of relevant information located, as well as the late discovery of further information, should in the Tribunal’s view have alerted the Commissioner to the likelihood that searches had been inadequate.

The Commissioner would say that as the test to be applied is not whether the public authority can categorically state that the information is not held, he accepts that occasionally information may come to light after a public authority has indicted that they do not hold it. In such cases, the Commissioner will consider whether this late discovery of relevant information affects his assessment of the public authority’s scope, quality, thoroughness and results of the initial search. Further, such a discovery may affect the persuasiveness of other arguments raised by the public authority to explain why the information is not held, for example, where a public authority has argued that the information has been destroyed according to their destruction schedule but is discovered after the date of disposal. The Commissioner will also consider the information itself to consider whether this reveals anything about the existence of other information.

(See note on LTT116 for the effect that the late discovery of information would have on an assessment of whether an estimate was reasonable).