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Determining whether we hold environmental information

About this detailed guidance

This guidance discusses when environmental information falls within the scope of an information request and is written for use by public authorities. Read it if you have questions not answered in the Guide to the EIR, or if you need a deeper understanding to help you determine what information you should consider for disclosure.

In detail

What does this guidance cover?

The guidance covers what the legislation requires you to do. It also sets out actions which, whilst not required by the legislation, the ICO considers to be good practice. Following good practice helps requesters exercise their rights effectively. It can also reduce the demands they make on you and the likelihood of them requesting a review or making a complaint to the ICO.

There are two main scenarios where this guidance is likely to be useful:

  • When you believe that you do not hold any information within the scope of the request (or any more relevant information) and want to explain why.
  • When you know that particular information physically exists but you are unsure whether you “hold” that information for the purposes of the legislation.

In most circumstances, your first step when you receive an information request should be to determine what information you hold.

Remember that you usually still have to tell a requester whether or not you hold information relevant to their request, even if you are withholding it. The only exception to this rule is where you can neither confirm nor deny holding the information. This applies when issuing a confirmation or a denial would, in itself, disclose information that would either have an adverse effect on national security or would breach the data protection principles. In all other cases, it is good practice to tell a requester that you hold relevant information, even if you are applying an exception.

See the ICO’s guidance on receiving a request for more information on responses and refusal notices.

What does the legislation say?

Regulation 5(1) of the Environmental Information Regulations (EIR) states:

“a public authority that holds environmental information shall make it available on request.”

Regulation 12(4) of the EIR states:

“A public authority may refuse to disclose information to the extent that—

(a) it does not hold that information when an applicant’s request is received;”

You must still carry out appropriate searches to determine what information you hold, regardless of whether the request falls under the Freedom of Information Act (FOIA) or the EIR. However, when you are satisfied that you do not hold any relevant information, the way you communicate this to the requester depends on the legislation.

If you decide that the requested information (if it existed) would be environmental, you need to issue a refusal notice (under regulation 14 of the EIR) which cites regulation 12(4)(a). Whilst all EIR exceptions are subject to a public interest test, we see no value in carrying out such a test when you do not hold the information.

It is good practice to explain, if you can, why you do not hold the requested information. Providing a strong argument to demonstrate why you do not hold a particular piece of information means the requester is less likely to ask for an internal review or complain to the ICO.

Example

In decision notice FER0733512, the requester had sought the contents of a particular notebook. The HSE explained that the notebook in question had been destroyed prior to the request and it therefore no longer held the information. As the information had clearly been destroyed, the Commissioner was satisfied that the HSE did not hold the information at the point the request was made.

How do we show that we have provided all the information we hold?

There will be occasions where a requester disputes whether:

  • you don’t hold particular information; or
  • you have provided all the environmental information you hold.

In these circumstances, it is important to demonstrate that you have carried out reasonable searches to identify all the relevant information that you hold. In this respect, there is no difference between FOIA and the EIR.

Before you begin your search, you should make sure you understand exactly what it is you are searching for. You should ask the requester to clarify exactly what they are seeking, if:

  • you don’t understand the request;
  • the request could have more than one meaning; or
  • the request is so broad you don’t know where to begin searching.

Our guidance on interpreting and clarifying requests may help you decide when this is necessary.

The search

How much searching you need to do depends on the nature of the request and how you hold your records.

Example

In Bromley and others v Information Commissioner EA/2006/0072, the First Tier Tribunal considered how far the Environment Agency should be expected to search for information before concluding it had located all the information it held. The Tribunal commented that:

“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. We think that [the balance of probabilities] requires us to consider 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. 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. Our task is to decide, on the basis of our review of all of these factors, whether the public authority is likely to be holding relevant information beyond that which has already been disclosed.”

The Bromley case determined that it was acceptable for the ICO to rely on the results of a public authority’s searches – providing that those searches were appropriate and thorough. This principle has been consistently applied in Tribunal judgements since then and informs our approach to such cases.

We don’t expect you to search all of your filing cabinets or computers before determining that you don’t hold information. However, you should search those areas where it is reasonable to expect that you would find the information (if it existed). The broader the request, the more areas you are likely to need to search.

Example

If you receive a request for correspondence about a planning application, it would be reasonable for you to search your planning records. It is likely to be unreasonable for you to be expected to search your adult social care files.

Good records management is important because it makes your searches quicker. If your records are well organised, you are also less likely to miss important information. It is then more likely that the requester accepts the outcome if you determine that you do not hold some or all of the requested information.

You may find the section 46 code of practice on records management helpful in improving your records management practices.

If the requester disputes that you have located all the relevant information, they may take their complaint to the ICO, following an internal review.

How does the ICO determine such complaints?

If the ICO receives a complaint disputing the amount of information you hold, we will expect you to provide a reasoned and detailed account of how you determined that you do not hold further information.

The ICO is not required to prove beyond doubt that you do or do not hold further information. When determining a complaint, the ICO makes a decision based on the civil standard of the “balance of probabilities” - that is, more likely than not.

Example

In O’Grady v Information Commissioner EA/2019/0318/P, Mr O’Grady argued that the Commissioner should have based her decision on the criminal, not the civil, standard of proof. The Tribunal rejected this approach saying that:

“The normal burden of proof applied by the information rights tribunal (and the Commissioner) is the civil standard, i.e. the balance of probabilities. There is no binding authority which has directly considered the issue of the appropriate standard of proof in the Information Rights Tribunal. However, I conclude that the tribunal, and for the same reasons the Commissioner, is right to apply the civil standard of proof.”

When deciding whether it is more likely than not that you have located all relevant information, the ICO looks at whether your search is a reasonable one. As well as considering the circumstances of the case, the ICO also takes into account:

  • Have you correctly identified the scope of the request?
  • What searches have you undertaken? Are they reasonable and why?
  • Are there any business reasons why you should hold the information? Or any evidence suggesting that you do hold it?
  • Is there a legal requirement for you to hold this information?
  • What does your records management policy say about information of the type specified in the request?
  • Are there any other reasons why you should or should not hold further information?
  • Have you reviewed how reasonable your search was, in light of what has or has not been located or in view of new information?
  • Have you considered if anyone else does or could hold any of the information within scope of the request on your behalf? If so, have you asked them and are you satisfied with their response?

The ICO will ask for this information during our investigation. If you are unable to evidence the searches and enquiries conducted, you may be asked to carry out further searches and enquiries. It is therefore good practice to keep a record of any searches that you have carried out, particularly if the requester thinks you hold more information. You should record the areas of the organisation that were searched and the staff you consulted. If you conduct electronic searches, you should keep a record of the keywords, accounts and time parameters used. 

The ICO’s role is to reach a decision as to whether, on the balance of probabilities, you do or do not hold the particular requested information. We do not decide whether you should hold that information. The ICO recognises that there may be specific circumstances which mean that you do not hold a particular piece of information, even though you should.

However, the stronger the indications that you should hold a particular piece of information, the better explanations you will need to provide as to how you determined that you do not hold it.

Example

In decision notice FS50706924, the complainant had sought a copy of a surveyor’s report. During the course of the ICO’s investigation, political turmoil at the parish council left it existing in name only. The parish council’s only surviving information was a box of files that was passed to Rugby Borough Council.

Whilst the Commissioner accepted that the parish council should have held the report, as the borough council had searched the box and was unable to locate the report, the only available conclusion was that the report was no longer held.

Sometimes the cost of searching for information may be manifestly unreasonable. If that is the case, you may wish to consult the ICO’s guidance on manifestly unreasonable requests.

If the ICO considers that there are gaps in the account you provide, we may ask you to carry out further searches before we can conclude that you do not hold further information.

Do we need to create environmental information to satisfy an information request?

No. The EIR only apply to information that a public authority already holds in recorded form at the time of a request.

If you don’t hold a particular piece of information that someone has asked for, you don’t have to create it. Nor are you required to ask a third party for the information, unless they hold it on your behalf. You must already hold the information when the request is made.

Example

“What did Ms X mean when she wrote…?”

“I know that another organisation holds a copy of this report – so why don’t you just ask them for a copy?”

These are examples of information that the public authority in question is unlikely to hold. Information contained in someone’s mind is not recorded information and a public authority is not required to obtain information it doesn’t already hold in recorded form.

However, there are some circumstances where you may still “hold” environmental information, even though you do not have it immediately to hand when a request is made.

Extracting and compiling information

Sometimes a requester wants a list of documents, schedule of correspondence or a document summary rather than a particular document itself. Whilst you may not physically possess such a document, you would probably still hold the information, because you could compile or extract it from raw data that you possess.

If you have the “building blocks” necessary to produce a particular type of information, it is likely that you would hold that information unless it requires particular skills or expertise to put the building blocks together.

Example

Decision notice FS50070854 concerned a request for information about discussions between the UK and the US on energy policy and oil production. The initial request was for information on the actual discussions. This was followed up with a request for a schedule of documents falling within the scope of the original request. In respect of the schedule, the Commissioner stated that:

“The information already exists: the public authority cannot be said to be creating it. And, while producing a list of the documents in which the relevant information is contained may be a new task, it is not creating new information; it is simply a re-presentation of existing information…”

 

Example

In Higham v the Information Commissioner EA/2015/0078, the First Tier Tribunal ruled that Cornwall Council did not hold information about the combined costs of a number of projects – only the individual information about each project. Mr Higham appealed this decision to the Upper Tribunal.

The Upper Tribunal, in an unpublished decision, rejected the First Tier Tribunal’s approach and ruled that the information was in fact held. Whilst accepting that the information was not contained within a single document, the UT noted that the requested information could be produced by a simple addition of figures the Council already held.

Summarising information

Regulation 6 of the EIR allows a requester to ask you to provide environmental information in a particular form or format. This would include asking for a summary or digest of particular environmental information that you hold.

This is not information that you could directly lift from documents in the same way as dates or the document’s author.

You must provide a summary or digest if the applicant expresses this preference from the outset and it is reasonably practicable for you to do so.

Exercising skill and judgement to compile information

Creating lists and schedules is usually a relatively simple – if time-consuming – task. However, there are some circumstances where you cannot compile information without exercising a degree of skill or judgement.

When you hold information in electronic files and can retrieve and manipulate it using query tools or language within the software, that information is held for the purposes of the EIR. The use of query tools or languages does not involve the creation of new information. Such tools are only a means of filtering existing information.

When deciding whether or not you hold information which has to be derived from raw data, you should consider whether anyone with similar skills or experience would reach the same result if presented with the same set of raw data.

For example, if someone asked you to present a dataset in a graph with a logarithmic scale, you may need to find someone with more advanced mathematical skills to derive the information. However, it should not matter who you ask to carry out the exercise, as anyone with similar knowledge of mathematics should arrive at the same result if presented with the same raw data.

Example

In Michael Leo Johnson v the Information Commissioner and the Ministry of Justice EA/2006/0085, the Tribunal considered a request relating to the number of cases dismissed in the High Court. In particular, the applicant sought the number of claims that were struck out by each of the Queen’s Bench Masters for the years 2001, 2002, 2003 and 2004.

The Ministry of Justice (MoJ) had not collated this information at the time of the request. After establishing that the electronic database used by the MoJ did not contain all the building blocks needed, the question of whether it held the information focused on the contents of the MoJ’s manual records. In particular, the Tribunal considered whether the work needed to identify, retrieve and then manipulate the raw data constituted the creation of new information.

To find out how many cases each Queen’s Bench Master had struck out, the MoJ would have needed to go through thousands of files and identify those where a case had been struck out. To complicate matters, there was no consistent way of recording a strike out. For example, some files may simply have referred to a case being struck out whereas others could have referred to there being ‘no arguable case’. In all, four means of recording a strike out were commonly used.

The MoJ argued that there was a need to exercise some judgement as to what files recorded a strike out. Furthermore, even after this raw data had been extracted, it had to be further manipulated; ie, the strike outs had to be allocated to the different Masters, then added up to give a total for each Master. The MoJ argued that this was the creation of new information.

The Tribunal said at paragraph 49 that:

“… we accept …that the degree of skill and judgement that must be applied to the building blocks may well have a bearing on whether the information is held or whether what is being sought is more properly construed as being new information …”

However, the Tribunal found that identifying references to a strike out was not difficult. It would be easy to brief someone on the four terms commonly used. Nor did the Tribunal consider that the need to perform some simple mathematical calculation involved the creation of new information. The Tribunal therefore found that the MoJ held the information.

If, however, two people with similar skills could analyse the same raw data yet reach different conclusions, it is likely that you would not hold the information. The more an individual has to exercise their own judgement, rather than follow a defined process, the less likely it is that you hold the requested information.

Example

In decision notice FER0810614, the requester asked Hampshire County Council for a map of a particular road at a scale of 1:10,000. The Council stated that it did not hold a map at that scale, but had the necessary geospatial data to build one. It therefore argued that the information was available in another form or format. The Commissioner accepted that Council held the raw geospatial data, but its answers to her questions demonstrated that the raw data could not simply be combined in a set process to produce a map. Transforming the raw data into the requested information could not be done without the Council’s specialist staff applying their skills and judgement about the raw data that would need to be included. The Commissioner therefore found that the Council did not hold the information requested.

Each case is decided on its own specific facts. However, the examples above demonstrate that the level of skill and judgement required to compile particular information determines whether you hold that information. The more you need to manipulate the building blocks and the more subjective the terms of the request, the more likely it is that you will not hold the information.

Example

In Common Services Agency v Scottish Information Commissioner [2008] UKHL 47, the House of Lords found that a public authority would still hold data, even if those data had been “barnardised” (a method of anonymising statistics) for the purposes of the Freedom of Information (Scotland) Act 2002. The relevant provision in Scottish legislation is very similar to that in FOIA.

Lord Hope of Craighead’s judgement rejected the Agency’s argument that barnardisation amounted to the creation of new information:

“It seems to me that the position that the Agency has adopted to the request in this case is an unduly strict response to what [the legislation] requires. This part of the statutory regime should, as Lord Marnoch said, be construed in as liberal a manner as possible. The effect of barnardisation would be to apply a form of disguise, or camouflage, to information that was undoubtedly held by the Agency at the time of the request. It would amount to the provision of that information in a form that concealed those parts of it that have to be withheld but which would nevertheless, to some degree, convey to the recipient information that was undoubtedly held by the Agency at the time of the request...It would not amount to the creation of new information, nor would it involve the carrying out of any research. It would be to do no more than was reasonable in the circumstances, having regard to the need for the form in which the information was disclosed to comply with the data protection principles.”

What if someone asks for information we can only access online or have read-only access to?

Many public authorities subscribe, or have access to, online resources to aid and inform their work. Whether or not you hold such information depends on the nature of the subscription or access you have to the information.

Example

In Glen Marlow v the Information Commissioner EA/2005/0031, the Tribunal considered the extent to which a council held information in an online legal library that it subscribed to. The Tribunal differentiated between the information that the public authority had selected for use and all the other information held within the database.

It found that information selected, downloaded and saved to the public authority’s own computer was held, as was information printed off from the database. However, the remainder of the information on the database was not held by the public authority.

In reaching its decision in the above case, the Tribunal took account of the council’s subscription to the database. In this case, the terms of the council’s license were quite restrictive. The Tribunal did not rule out the possibility that a public authority would hold the entire database it subscribed to, if it had a completely unrestricted right to use and exploit the contents. However, in practice this is unlikely to occur. Generally, you would not hold information from a third party’s database or other online resources, unless you have downloaded, saved or printed it out.

Example

In Alan Dransfield v the Information Commissioner and Devon County Council EA/2010/0152, the applicant sought information held in the maintenance manual for a school constructed under a private finance initiative. The developer was responsible for building and then maintaining the school. The manual was held remotely and the public authority only had access to the manual to check that the developer was honouring its contract by updating it and maintaining the school properly. The public authority had no other right of access and could not download or copy the manual.

The Tribunal found that the public authority did not hold the manual and that it was held by the developer for their own purposes.

Similarly, you may be one of a number of public authorities contributing information to a central, electronic repository. You can access each other’s information, but on a read-only basis. For the purposes of the EIR, you would only hold the information that you had put into the repository yourself.

Unlike FOIA, regulation 10 of the EIR requires you to notify a requester when you believe that another public authority holds some or all of the environmental information that has been requested. If you receive a request for the contents of an entire repository, the legislation says that you should either identify the other public authorities who would hold information (and provide their contact details) or transfer the request to the other public authorities involved.

Whilst the legislation does allow this, we would not recommend that you do so without the explicit consent of the requester. You should instead inform the requester of how they can contact the relevant public authority. The requester may not wish to have their personal information shared with another public authority and transferring the request is not necessary to comply with your legal obligations under the EIR.

If you are considering establishing a shared electronic repository with other public authorities (or joining an existing one), it would be advisable for you all to reach an agreement about how to deal with information requests for the repository’s contents.

Example

In decision notices FER0701278 and FS50701559, the Commissioner considered whether two parish councils held information stored in an electronic repository.

A group of four parish councils along with a district council and a planning consultant were collaborating on a neighbourhood plan. As part of this project, the consultant created a document repository using Dropbox to share documents with the four parish councils.

The Commissioner found that the two parish councils concerned did not hold the information stored in the Dropbox folder. This was because they had not uploaded any information to the Dropbox folder themselves and had not downloaded the information already stored there.

Can someone ask for information on the properties or metadata of an electronic document?

Documents created electronically contain information about the life of the document.

Details are recorded and stored within the file, such as:

  • the author;
  • dates;
  • editing history;
  • size;
  • file paths;
  • security settings; and
  • any email routing history.

This information is known as “metadata” and is accessed via the file properties.

Metadata is recorded for the business purposes of the public authority and can be used in records management. The code of practice on the management of records issued under section 46 of FOIA promotes the recording of metadata at paragraph 2.3.3. You will hold this metadata for the purposes of the EIR.

In addition, when you produce an electronic document, information on its formatting is automatically recorded. This includes information such as the fonts used, headings and other style settings. You can view this information in the relevant format menus of the software program. As with metadata, you would hold this information for the purposes of EIR.

If a requester asks for this type of information specifically, you must disclose it – unless you believe that an exception allows you to withhold it. However, you are not required to supply this information unless it is specifically requested.

Example

“Please provide the final Word version of the letter that your Chairman sent to Organisation A about the new housing development. I want to see the date that this letter was created so please make sure you include the electronic properties of the original document.”

If you received the above request you would need to consider disclosing the metadata. There might be an exemption which would allow you to withhold this information but, if there isn’t, you would need to disclose it. However, if the requester only asked “please provide me with a copy of the letter your Chairman sent to Organisation A about the new housing development” you would not be obliged to provide the original metadata.

What if the information we have is incomplete, inaccurate or has been amended?

You still hold relevant environmental information even if you do not hold the complete set of requested data. You also still hold information even if that information contains inaccuracies.

The accuracy requirement in the EIR

Regulation 5(4) of the EIR states that:

“…where the information made available is compiled by or on behalf of the public authority it shall be up to date, accurate and comparable, so far as the authority believes.”

This provision only applies to factual information, such as scientific measurements, that you are collecting on an ongoing basis for your own business needs.

Example

A public authority needs to measure levels of air pollution caused by vehicles outside a school. It takes the measurements every Monday and Wednesday morning. If it receives a request for those measurements, it must correct any figures that it knows to be wrong and ensure that the figures are up to date.

Although it must provide up to date figures, this does not mean the public authority needs to take a measurement of pollution levels at the precise time it discloses the information. However, it does mean that the public authority is required to ensure that it takes readings each Monday and Wednesday as prescribed and that all the readings that have been taken are included in the information disclosed.

What if the information is incomplete?

If you are concerned that disclosing the information you hold would provide an incomplete or an inaccurate picture, you should explain this to the requester as soon as possible.

Whilst you must still consider incomplete or inaccurate material for disclosure, the fact that it is incomplete or inaccurate may mean that an exception allows you to withhold it. Regulation 12(4)(d) provides a specific exception from disclosure for information in the course of completion and for incomplete data – subject to a public interest test. The ICO’s guidance on regulation 12(4)(d) may be of use.

However, unless you consider that an exception applies, you would need to disclose information regardless of how complete or accurate it is.

Example

In Home Office v The Information Commissioner EA/2008/0027, the requester wanted to know the total number of work permits obtained in 2005 and 2006 by nine named employers in the IT sector.

The Home Office argued that it could not create the requested information from the raw data that it held. It said it had concerns about the accuracy and consistency with which some of the relevant data fields had been recorded.

The Tribunal rejected this argument, noting that:

“…if the records are faulty or inadequate and the information turns out therefore to be inaccurate that is irrelevant: the right under the Act is to information which is held, not information which is accurate.”

There will be occasions where your staff may record environmental information on a discretionary basis, even though there is no business need for them to do so. You would still hold such information, even if it is not collected on a consistent basis.

Example

A council has a number of maintenance teams responsible for the town centre’s street furniture. The role involves planned maintenance as well as identifying other jobs through inspections and responding to reports from the public. On occasions, senior management or finance staff may need to be consulted.

For each job the team manager records the type of street furniture worked on (ie a bench) the cost and the time taken. It is down to the discretion of the team manager what additional information they record, such as their liaison with other members of the council. Although many jobs involve some interaction with other officers, particularly engineers, most managers only record what they consider to be significant meetings.

The council then receives a request for the number of times maintenance staff consulted with engineers for the last two financial years when installing bollards. The council has recorded information on the number of jobs involving the installation of bollards. However, only a limited number of files record that engineers were consulted. Whilst this is unlikely to present the whole picture, the council must provide the requested statistics based on those records – although it may well wish to add some context when it discloses the information.

What if some of the information we hold has been (or is due to be) amended since we received the request?

The EIR require you to make environmental information that you hold available on request. Unlike FOIA, there is no explicit provision allowing you to take account of information which has been deleted or updated. However, regulation 5(4) does require you to ensure that factual information is up to date as far as reasonably possible.

Where you hold different versions of the same information, it is better to clarify exactly what the requester wants than to get into a dispute about what their request entitles them to.

Don’t forget that most requesters will not know exactly what information you hold, how you hold it or how frequently you update it.

Simple intervention to clarify the request, at an early stage, increases the chances of the requester being satisfied with the response. It also helps you by reducing the amount of time you need to spend searching for information the requester has no interest in.

Regulation 9 of the EIR requires you to provide reasonable advice and assistance to requesters to help them make their request. If a requester asks for environmental information that is likely to be updated or amended very soon, without indicating which version they want (for example, “the most recent figures available for…”, or “the policy in force in June 2019”), it would be reasonable for you to clarify which version of the information they wish to receive.

Alternatively (and assuming that no exception applies), it may be easier to provide both versions of the information.

Do not amend or delete information that is the subject of an unanswered EIR request. Make sure you keep a record of any decision to amend or delete such information – so that you can show why this was done.

It is a criminal offence under regulation 19 of the EIR to deliberately do any of the following to prevent disclosure of information that has been requested:

  • destroy;
  • deface;
  • alter;
  • conceal; or
  • block.

Having good records management policies and following them consistently helps you to show that your actions were reasonable, should there be a dispute about what information you should provide.

You may also find the ICO’s guidance on the retention and destruction of information useful.

Criminal offence

Regulation 19(1) of the EIR states that:

“Where—

  • a request for environmental information has been made to a public authority under regulation 5; and
  • the applicant would have been entitled (subject to payment of any charge) to that information in accordance with that regulation,

“any person to whom this paragraph applies is guilty of an offence if he alters, defaces, blocks, erases, destroys or conceals any record held by the public authority, with the intention of preventing the disclosure by that authority of all, or any part, of the information to which the applicant would have been entitled.”

Regulation 19(3) states that:

“A person guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”

Do we still hold information that has been deleted?

The ICO recognises that it is neither practical nor desirable for you to indefinitely retain every piece of environmental information you create or acquire. Good records management requires you to delete information that no longer serves a useful purpose.

However, there will be occasions where a requester asks you for information which you once held, but deleted.

The EIR require you to make environmental information that you hold available on request. Unlike FOIA, there is no explicit provision allowing you to take account of deleted or updated information. However, regulation 5(4) requires you to ensure that factual information is up to date, as far as reasonably possible.

Unless you establish that an exception applies, you will usually need to determine what environmental information you held at the time of the request and provide the requester with that information. This applies even if you have since deleted it.

When is deleted information not held?

The process of deleting paper records is usually straightforward. You can shred or incinerate files and the information is permanently destroyed. It is not as easy with electronic information. Deletion is usually a three-stage process:

  1. Move information to a recycle bin or wastebasket.
  2. Delete it from the recycle bin.
  3. The space it occupies on the computer is now designated as free which means you can overwrite it with new information.

The information is only completely erased and therefore not held once it has actually been overwritten.

Example

The basis for this approach is to be found in the case of Catherine Whitehead v the Information Commissioner EA/2013/0262. This case concerned a request for specific correspondence which the public authority, in the Tribunal’s view, accepted was likely to be held on a backup tape or recoverable from its server. At paragraph 16 the Tribunal said that “if requested information is in (or on) back-up tapes which are themselves held by the public authority or is in some other way still stored on the public authority’s server, we consider that it is clearly “held” by the public authority.”

In this way, the Tribunal was stating that the test to be undertaken is whether the information is held “as a matter of fact”.

The Upper Tribunal has not (to date) considered a case involving the deletion of information. However, in University of Newcastle upon Tyne v Information Commissioner and British Union for the Abolition of Vivisection [2011] UKUT 185 (AAC), the Upper Tribunal found that, when considering whether information was held in the context of FOIA, the word “‘hold’….is an ordinary English word and is not used in some technical sense in the Act.”

Given that both FOIA and the EIR use the word “hold”, the ICO considers that the same approach applies to the EIR. In other words, whether you hold particular environmental information is determined as an issue of fact.

Should we always search for environmental information that may have been deleted?

The ICO accepts that it would be unreasonable for you to restore your system from backup every time you receive an information request, just in case you may hold some further information.

If your initial search identifies that you may have deleted relevant information, you need to consider this matter as part of your overall response to the request.

However, if there is no indication that you deleted significant information, searches of your “live” systems or any relevant archives that you maintain are likely to be sufficient.

You should also consider your own IT policies. Some organisations have policies in place which govern how long they retain backup tapes for or when they permanently wipe disk space. If you can demonstrate that such policies are in place and that any relevant information that had existed would have been permanently deleted, you are unlikely to be expected to carry out further searches.

What do we do if we think we might need to search for deleted information?

Regulation 7 of the EIR allows you to extend the deadline for responding to a request. This applies if you consider that the “volume or complexity” of the requested information makes it impractical to respond earlier. Deleted information is likely to be complex information.

Regulation 7 allows you up to a maximum of 40 working days from the date you receive the request to either:

  • provide the information; or
  • issue a refusal notice.

You can find more detailed guidance on when you can rely on regulation 7 in the ICO’s guidance on time for compliance with EIR requests.

Whilst it is likely that you would hold information if it is retained in backup files, you can take account of whether the time or cost involved in recovering deleted information might be manifestly unreasonable.

Regulation 12(4)(b) of the EIR permits you to refuse a request for environmental information if the request is manifestly unreasonable, eg imposing a significant burden on you. Unlike with section 12 of FOIA, there is no “appropriate limit” beyond which a request would become manifestly unreasonable. However, the FOIA cost limit can be a useful guide.

If you believe that the burden of searching for deleted information would be manifestly unreasonable, you need to demonstrate why you could not fulfil the request without carrying out such searches. A request is likely to be manifestly unreasonable if you can demonstrate that you could not answer it using reasonable methods.

Don’t forget that even if you think a request is manifestly unreasonable, you still need to carry out a public interest test before refusing the request.

You may find the ICO’s guidance on manifestly unreasonable requests helpful when dealing with such requests.

In line with your regulation 9 duty, if you are considering refusing a request as manifestly unreasonable, you should provide the requester with reasonable advice and assistance to help them refine their request. Many requesters are happy not to receive deleted information, particularly if this prevents you refusing their request as manifestly unreasonable.

How much work do we have to do to decide whether we hold relevant environmental information?

If you hold information, you hold information – regardless of how long you have to spend compiling or searching for it. Whether or not you hold environmental information is a matter of fact.

However, there are situations where the process of compiling information or determining whether you hold the information would be lengthy or costly. In those situations, you may wish to consider relying on regulation 12(4)(b) to refuse the request. You may find the ICO’s guidance on manifestly unreasonable requests helpful in determining whether that exception applies to the request.

The amount of information you are likely to extract or locate and its relevance or importance are the main factors you should consider when weighing the balance of the public interest. If a search of deleted information appears unlikely to retrieve anything of value, it is likely that the public interest would favour maintaining the exception. On the contrary, if you could extract a particularly important set of information from raw data, the balance of the public interest may favour disclosure. This applies even if it causes you a significant burden.

Other considerations

This guidance is designed to help you understand the principles that the ICO uses to help you decide whether or not you hold particular information. It cannot cover every possible set of circumstances and the ICO determines each complaint on its own individual merits.

You can read examples of decision notices that the ICO has previously issued, to see how we apply our approach in practice, by visiting our decision notice page.

 

Further reading 

The following pieces of guidance may also be useful to you: