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Learnings from ICO decision notices

We’ve summarised some recent decisions of note below, to help public authorities learn from our decision notices. All of the Commissioner’s decisions under FOIA and the EIR can be found on our decision notices pages.

When can you extend the time to respond to a request?

In case IC-155171-G3W9, the Department for Work and Pensions (“DWP”) told the requester that information was exempt under section 35(1) FOIA. It said it needed more time to consider the public interest test before it could respond fully, which is allowed under section 10(3) of FOIA. 

After its further considerations, the DWP changed its position and said it was relying on section 36(2) to withhold the information. The Commissioner’s decision included that the DWP had failed to respond adequately, and had not complied with section 10 of FOIA.

Learning points

  • Section 10(3) FOIA must only be used where the authority is satisfied that a specific exemption is engaged, and reasonably requires more time to consider the balance of the public interest.  
  • It must not be used to consider which exemption applies to the requested information.

Can managing directors of a wholly-owned company withhold their expenses under the personal data exemption?

In case IC-238018-H0P1, Bristol Waste Company, which is wholly owned by Bristol City Council, relied on section 40(2) FOIA, the personal data exemption, to withhold invoices relating to managing directors’ expenses.

The Commissioner’s decision was that the need for transparency around public spending outweighed the rights and freedoms of the individuals, and ordered most of the information to be disclosed.

Learning points

  • There’s a strong interest in transparency around public spending in the case of senior officers’ expenses.
  • Wholly-owned companies should pro-actively publish information about their senior staff.

Are financial interests and commercial interests the same thing?

Thurrock Council was in the news because of its recent investments and loans, and received several requests for details. In cases IC-179259-K9S3 and IC-179262-G3G2, the Council withheld information, relying on exemptions including section 43(2) FOIA.

Our decisions in each case found that the requested information (which included the nature of specific loans and investments, and the sums involved) was not commercially sensitive.

Learning point

  • Financial interests and commercial interests are not necessarily the same thing. Whether a financial interest also comprises a commercial interest depends on the facts of the individual case.

Is commercial sensitivity affected by what's already in the public domain?

HM Treasury (HMT) received several requests about the appointment of Sir Amyas Morse (now Lord Morse) to review the 2019 Loan Charge.

Decision notice IC-185127-L9M6 found that HMT had incorrectly relied on section 43(2) to withhold the total amount that Lord Morse had been paid. HMT had failed to consider publicly available information, which detailed his agreed daily rate and the long-stop date of his contract, and did not provide any evidence to strengthen its position.

Learning points

  • When assessing whether disclosure will cause prejudice, consider what other information is already publicly available.
  • Engage fully with the ICO during our investigation and provide detailed and robust arguments about envisaged prejudice.

How can you show that disclosure would, or would be likely, to cause prejudice?

The London Borough of Barnet received a request for a loan agreement and guarantee document about works at a stadium. They provided some information, but made redactions under section 43(2).

In decision notice IC-53595-H1B1 we agreed that the redacted information was exempt under section 43(2). The Council provided us with nuanced and specific arguments, detailing how disclosure of the redacted information would be likely to prejudice its commercial interests and those of third parties. The decision might have been different if the Council had relied on generic arguments.

Learning point

  • Your arguments should be specific. They should establish a link between disclosure of the requested information and prejudice to identified commercial interests.

Section 1(1) FOIA: searching for requested information is a vital step

Transport for London (TfL) refused a request for information about employees’ reasonable adjustments, saying it was third party personal data and exempt from disclosure. It was not until the Commissioner’s investigation that TfL realised it did not hold the requested information.

The Commissioner’s decision notice reference IC-250871-P2F2 records that TfL didn’t search for and locate the information before applying exemptions. Its response to the requester was based on an assumption that this type of information would be exempt.

Learning point:

  • Don’t assume that information is held and would be exempt. Establish whether the specific information is held, by carrying out appropriate searches.

Section 31(1)(a) FOIA: Would disclosing the location of CCTV cameras prejudice the prevention or detection of crime?

Wychavon District Council provided some information about its CCTV cameras, but withheld the exact locations under section 31(1)(a) FOIA (prevention or detection of crime). The requester asserted that the cameras were in public places. 

The Commissioner agreed, in case IC-254519-M2S2, that disclosing the information to the public would be likely to prejudice the prevention or detection of crime. The information would potentially assist individuals with criminal intentions to plan their activities and/or avoid detection.

Based on the strong public interest in preventing and detecting crime, he was satisfied that the information had been correctly withheld.

Learning point:

  • Despite CCTV cameras being visible and therefore “public”, disclosing all of their locations in response to an FOI request can be prejudicial to law enforcement.

Section 1(1) FOIA: is an email a “document?

A requester asked the Department for Culture, Media and Sport (DCMS) for “copies of documents” about non-executive directors’ contracts at Channel 4. DCMS provided some information. It also held relevant emails, but only provided them to the requester when he asked for them specifically. DCMS regarded this as a new request.

In case IC-228380-P7X0, the Commissioner found that the emails fell within the scope of the initial request and should have been considered at that stage.

Learning points:

  • The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 define “documents” as “anything in which information is recorded in any form”.
  • A request for “documents” therefore covers emails and other forms of electronic communication.

Section 40(2) FOIA: councillors’ information could not be withheld

In case IC-289435-S3R2, a council refused a request for information about councillors’ non-payment of council tax, saying it was third party personal data, and exempt from disclosure.

The request was for the identity of serving councillors who’d received a court summons, due to the extent of council tax arrears. Noting that there is a high expectation of scrutiny in this situation, the Commissioner ordered the information to be disclosed.

Learning point:

  • Where information is third party personal data, the legitimate interests in disclosure can outweigh the individuals’ rights and freedoms, where there’s a high expectation of scrutiny and accountability.

Section 21 FOIA: information was not reasonably accessible to the requester

A university college in case IC-266850-B2G5 refused a request for some information on the cost of student housing under section 21 FOIA, saying that the information was on the rooms database on its website and was, therefore, reasonably accessible to the requester.

The Commissioner noted that the link to the rooms database was not easy to find. In addition, the costs information on there was difficult to export to a spreadsheet, and then could not easily be manipulated to provide exactly the data that the requester wanted. He decided that section 21 did not apply, and ordered disclosure of the information.

Learning point:

  • Check exactly what the requester has asked for and whether they can readily access it, before relying on section 21 FOIA.

Regulation 12(4)(d) EIR: survey data was not an unfinished document

In case IC-235958-Y0V9, a council withheld information about a traffic management survey under regulation 12(4)(d) of the EIR (material in the course of completion, unfinished documents or incomplete data). The council explained that it was using the requested data to produce a report that wasn’t finished, and they considered the data was an “unfinished document”. However, the Commissioner noted that data was, in itself, complete, and decided that the exception did not apply. He ordered the council to disclose the information, which it did after redacting some personal information.

Learning points:

  • Data that you’ve already collected in order to produce a report is not likely to be an unfinished document.
  • Nor will it be “incomplete data” if you’ve finished collecting it.
  • These points are covered in our more detailed guidance on regulation 12(4)(d).

Section 40(2) FOIA: searching first, and identifying legitimate interests

In case IC-275486-Q2V5, a university had conducted only partial searches for the names of people involved in selecting visiting professors. Its position was that, if held, those names would be exempt under section 40(2) FOIA (personal information).

In his decision, the Commissioner ordered the university to complete its searches for the names of the selection panel. He emphasised that an exemption cannot be applied on a hypothetical basis.

The university had also withheld the names of the visiting professors themselves under section 40(2). The Commissioner noted, however, that the university had not considered the legitimate interests being pursued by the complainant. After reconsidering the legitimate interest test, the Commissioner decided there was a lawful basis for disclosure and ordered the names to be disclosed.

This notice contains two learnings of note:

  • You must locate and consider requested information, and not assume it will be exempt personal data. You cannot comply with section 1(1)(a) FOIA without carrying out adequate searches.
  • When carrying out the three-part legitimate interest test to decide whether there’s a lawful basis for disclosing the personal data, remember that the complainant can have a legitimate interest. It’s vital to identify legitimate interests before considering the necessity of disclosure and then (if necessary) carrying out the balancing test.

Regulation 12(5)(b): considering the public interest in the disclosure of legally privileged information

In case IC-268468-Y8R9, a council had withheld some information dating from approximately 10-20 years ago. The information related to advice about a historic deed which affected whether or not land could be sold for development. On the basis of legal professional privilege (LPP), the council had relied on regulation 12(5)(b) EIR (adverse effect on the course of justice, etc).

In considering the public interest test, the Commissioner considered that the only factor in favour of withholding the information was preserving the principle of LPP. This was due to the age of the information, and the fact that the development had been complete for some time.

Although preserving LPP is always a significant factor, the Commissioner was persuaded there was a compelling public interest in the disclosure of the information. A previously-upheld covenant had been overturned, public space had been sold and large-scale development had taken place. Mindful of the spirit of the Aarhus Convention that the EIR derive from, and the presumption of disclosure at regulation 12(2), he ordered disclosure.

What does this decision mean?

  • In rare cases, the significant interest in preserving the principle of LPP can be outweighed by factors in favour of disclosure.
  • The presumption in favour of disclosure (regulation 12(2) of the EIR) is relevant when the factors in favour of disclosure are very finely balanced with the interest in maintaining the exception. See our guidance on attaching weight when considering the public interest test under the EIR.