Awdurdod annibynnol y Deyrnas Unedig a sefydlwyd i gynnal hawliau gwybodaeth er budd y cyhoedd, annog cyrff cyhoeddus i fod yn agored a hybu preifatrwydd data i unigolion.

Introduction

This is the document that our case officers use when we write to public auth orities. It includes introductory information about the exceptions and key questions we may need to ask. The questions are not exhaustive and case officers tailor their correspondence in each case.

We have made this internal ICO resource available on our website to help with transparency and to show how we approach casework. Public authorities may also find the questions useful when they are deciding if relevant exceptions apply.

How case officers use these key questions

We have written these key questions for case officers to consider when they seek information from public authorities on the use of particular exceptions. Case officers are likely to use them at an early stage of investigation. They are designed to ensure that we ask public authorities to provide as much information as possible to assist case officers in reaching a view about whether an exception is likely to apply.

The questions should not be seen as an exhaustive list and case officers consider the relevance of each suggested set of questions, as well as case-specific questions that arise from the particular circumstances of each case. However, the key questions are designed to cover all the substantive tests under each exception in the EIR.

Regulation 2(1) – what is ‘environmental information’?

Please explain – with reference to regulations 2(1)(a) to (f) – why the [name of PA] has concluded that the withheld information constitutes environmental information.

For example do you consider the withheld information to be environmental because it is information on the state of the elements listed in regulation 2(1)(a)?

You may find it useful to review the guidance note the ICO has produced entitled ‘What is Environmental Information?’ which sets out in detail how the information can constitute environmental information as defined by regulation 2(1) of the EIR. There are a number of further ways, in addition to the example set out above, under which information can fall within the remit of the EIR. This guidance note can be viewed here.

As you may be aware, regulation 12(9) explains that if information is on emissions, or relates to information on emissions then the exceptions contained at paragraphs 12(5)(d) to (g) cannot be relied upon. Therefore, if the [name of PA] is seeking to rely on any of these exceptions, please ensure that you have considered whether the withheld information constitutes information on emissions or whether it relates to information on emissions. In the ICO’s opinion the EU Directive, which the EIR originally implemented are drawn, emphasise that the term emissions should be interpreted broadly.

Please clarify whether [name of PA] position is that all of the withheld information constitutes environmental information or only part of it.

In the ICO’s opinion where a document contains both environmental and non-environmental information, if that document can be easily broken down into the separate parts then each part should be considered under the appropriate access regime. However, where a document cannot be easily separated, a public authority can apply a predominant purpose test: i.e. if the predominant purpose of a document covers environmental information, then the whole document can be dealt with under the EIR even though it contains some non-environmental information.

If the [name of PAs] view is that some of the withheld information is non-environmental, please clarify in light of the preceding paragraph, under which access regime – i.e. the EIR or the FOI Act this information has been considered and why.

Regulation 5(1) – duty to make environmental information available on request

Information not held

In scenarios where there is some dispute between the amount of information located by a public authority and the amount of information that a complainant believes may be held, the ICO, following the lead of a number of Information Tribunal decisions, applies the civil standard of the balance of probabilities.

In other words, in order to determine such complaints the ICO must decide whether on the balance of probabilities a public authority holds any information which falls within the scope of the request (or was held at the time of the request).

In order to assist with this determination please answer the following questions:

  • What searches have been carried out to check no information was held within the scope of the request and why would these searches have been likely to retrieve any relevant information?
  • Please describe thoroughly any searches of relevant paper/electronic records and include details of any staff consultations.
  • If searches included electronic data, which search terms were used and please explain whether the search included information held locally on personal computers used by key officials (including laptop computers) and on networked resources and emails.
  • If no or inadequate searches were done at the time, please rectify this now and let me know what you have done
  • If the information were held would it be held as manual or electronic records?
  • Was any recorded information ever held relevant to the scope of the complainant’s request but deleted/destroyed?
  • If recorded information was held but is no longer held, when did the [public authority] cease to retain this information?
  • Does the [public authority] have a record of the document’s destruction?
  • What does the [name of PA] formal records management policy say about the retention and deletion of records of this type? If there is no relevant policy, can the [name of PA] describe the way in which it has handled comparable records of a similar age?
  • If the information is electronic data which has been deleted, might copies have been made and held in other locations
  • Is there a business purpose for which the requested information should be held? If so what is this purpose?
  • Are there any statutory requirements upon the [name of PA] to retain the requested information?
  • Is there information held that is similar to that requested and has the [public authority] given appropriate advice and assistance to the applicant in line with the duty contained at regulation 9 of EIR?

In summary you are required to provide a thorough response to the above questions in order to comply with your statutory obligations. The Commissioner will therefore challenge responses and assertions made which fail to satisfactorily address our questions and require a more detailed explanation. The Tribunal has also demonstrated that it is very critical of public authorities who fail to respond adequately to our enquiries. We therefore expect a public authority where appropriate to provide full details of their searches to support its conclusions.

Regulation 5(3) – exception for personal data of applicant

Why has [name of PA] concluded that all of the requested information constitutes the personal data of the applicant? (‘Personal data’ is defined in sections 3(2) and (3) of the DPA 2018).

Regulation 6 – form and format of information

Regulation 6(1)(a)

Regulation 6(1)(a) allows an applicant to specify the form and/or format by which they would prefer to be provided with the requested information. In the ICO’s opinion this includes specifying that they would prefer to inspect the information requested.

In this case the complainant has specified that he wishes communication to be made [describe the form and/or format in which the applicant has requested information].

Please confirm that in responding to this request the [name of PA] has considered the form/format specified by the complainant.

If the [name of PA] has not complied with the preferred means of communication please provide a detailed explanation as to why it was concluded that in the circumstances of this case it was reasonable to provide the information in an alternative form and/format.

Regulation 6(1)(b)

Please clearly explain how the requested information is already publicly available and why this information is considered to be easily accessible to the applicant.

If the information is available via a publication scheme, please provide details of the relevant scheme. If the information is accessible through a publication scheme on payment of a fee, please detail the charge applied by the authority to access this information.

If the information in question is available online, please provide the relevant URLs. Please confirm when this information was uploaded onto the website, or confirm that the information was available via this route at the date of the request.

[If relevant to the nature of the complaint:]

Has [name of PA] taken into account the particular circumstances of the applicant when deciding whether access is easily available?

Regulation 12(1)(b) – public interest test

What public interest arguments in favour of disclosing the information were taken into account?

What public interest arguments in favour of maintaining the exception were taken into account?

Please explain why you consider that on balance the public interest in maintaining the exception outweighs that in disclosing the withheld information. Please include details of any particular weighting exercise that has been carried out.

Please ensure that your submissions focus on the content of the information that has actually been withheld rather than simply being generic public interest arguments.

Regulation 12(4)(a) – information not held

[See questions under regulation 5(1)]

[PIT questions – although this a qualified exception, the ICO’s position is that it is not necessary to consider the PIT as to do so would be illogical; how can the PI favour disclosure of information which is not held?].

Regulation 12(4)(b) - Manifestly unreasonable

A request can be manifestly unreasonable for two reasons: firstly, if it is vexatious and secondly where it would incur unreasonable costs for a public authority or an unreasonable diversion of resources.

[If the PA’s position is that this request is vexatious:]

In determining whether a request is vexatious, the ICO believes that the key question which public authorities need to consider is whether complying with the request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress. Where this is not clear, public authorities should weigh the impact on the authority and balance this against the purpose and value of the request. Where relevant, public authorities will need to take into account wider factors such as the background and history of the request.

As you will be aware from our guidance, when determining whether a request is vexatious the ICO will primarily look for evidence that the request would have an unjustified or disproportionate effect on the public authority.

Therefore, in light of this please explain why in the circumstances of this case [the PA] relied on regulation 12(4)(b) to refuse this request. Your response should include:

  • Details of the detrimental impact of complying with the requests;
  • Why this impact would be unjustified or disproportionate in relation to the requests themselves and their inherent purpose or value;
  • And, if relevant, details of any wider context and history to the request if [the PA] believes that this background supports its application of regulation 12(4)(b). Please provide any relevant documentary evidence / background evidence to support such a claim.

[If the PA’s position is that the request would incur unreasonable costs:]

The EIR do not provide a definition of what constitutes an unreasonable cost. This is in contrast to section 12 of the FOI Act under which a public authority can refuse to comply with a request if it estimates that the cost of compliance would exceed the ‘appropriate limit’. This appropriate limit is defined by the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (the Regulations) as £600 for central government departments is £600 and £450 for all other public authorities.

The Regulations allow a public authority to charge the following activities at a flat rate of £25 per hour of staff time:

  • Determining whether the information is held;
  • Locating the information, or a document which may contain the information;
  • Retrieving the information, or a document which may contain the information; and
  • Extracting the information from a document containing it.

Although the Regulations are not directly applicable to the EIR, in the ICO’s view they can provide a useful point of reference when public authorities argue that complying with a request would incur an unreasonable cost and therefore could be refused on the basis of regulation 12(4)(b).

Therefore, with reference to the four activities set out above, please provide a detailed estimate of the time/cost taken to provide the information falling within the scope of this request. In any calculations provided, please include a description of the work that would need to be undertaken (e.g. searching X number of files – 1 hour).

Please also confirm that the estimate has been based upon the quickest method of gathering the requested information, e.g. where possible databases would be used rather than searching manual files.

Regulation 9 places a duty on a public authority to provide advice and assistance to someone making a request and the ICO believes that this includes assisting an applicant to refine a request if it is deemed that answering a request would incur an unreasonable cost. Therefore, please clarify the nature of any advice and assistance given to the applicant in this case and if no advice and assistance was provided please explain why not.

[Remember to ask PIT questions].

Regulation 12(4)(c) Too general

Please explain why the [name of PA] concluded that the request was formulated in too general a manner. Please also provide evidence (e.g. copies of letters, emails) which demonstrates that the [name of PA] complied with its obligations under regulation 9(2) to assist the applicant to refine his request.

[Remember to ask PIT questions].

Regulation 12(4)(d) Material still in the course of completion

Please explain why the [name of PA] has concluded that the withheld information falls in the scope of the exception provided by regulation 12(4)(d). In doing so please make it clear which limb of the regulation the [name of PA] is relying on, i.e. material still in the course of completion; unfinished documents or incomplete data?

[Remember to ask PIT questions].

Regulation 12(4)(e) Internal communications

Please explain why the [name of PA] has concluded that the withheld information falls in the scope of the exception provided by regulation 12(4)(e).

In doing so please be aware that in the ICO’s view communications between a public authority and a third party (e.g. an external contractor) will not constitute an internal communication except in very limited circumstances.

[Remember to ask PIT questions].

Regulation 12(5) – ‘adverse affect’ exceptions

[LTT 117 explains that the threshold of likelihood for engaging 12(5) exceptions, adverse affect, is a high one. Standard wording is set out below for asking for submissions on this threshold and can be used for all 12(5) exceptions.]

The ICO interprets the wording of ‘would adversely affect’ in regulation 12(5) to set a relatively high threshold in terms of likelihood which has to be met in order for any of the 12(5) exceptions to be engaged. In other words it is not sufficient that disclosure may or could have some level of adverse effect, but rather that disclosure ‘would’ have an adverse affect. In the ICO’s opinion this means that the likelihood of an adverse affect must be more substantial than remote.

Regulation 12(5)(a) International relations, defence, national security or public safety

Please clarify whether [name of PA] position is that disclosure would adversely affect international relations; defence; national security; or public safety. Furthermore, please provide detailed submissions to explain why disclosure would result in this adverse affect. Please ensure that these submissions demonstrate a clear link between disclosure of the information that has actually been withheld and any adverse affect.

[Remember to ask adverse affect questions]

[Remember to ask PIT questions].

Regulation 12(5)(b) The course of justice, etc

Please clarify which limb of regulation 12(5)(b) the [name of PA] is relying on to withhold the information, i.e. the course of justice, ability to receive a fair trial or ability to conduct an inquiry.

If the [name of PA] is relying on regulation 12(5)(b) because disclosure would adversely affect the course of justice because the withheld information attracts legal professional privilege, please confirm whether this is legal advice privilege or litigation privilege.

Legal advice privilege is generally considered where no litigation is in progress or is contemplated. Legal advice privilege may only be claimed in respect of certain limited communications that meet the following requirements:

  • The communications must be made between a professional legal adviser and client;
  • The communications must be made for the sole or dominant purpose of obtaining legal advice; and
  • The information must be communicated in a legal adviser’s professional capacity. Consequently not all communications from a professional legal adviser will attract advice privilege.

Therefore, with reference to the above criteria please explain why [name of PA] believes that the requested information attracts advice privilege.

Litigation privilege will be available in connection with confidential communications made for the purpose of providing or obtaining legal advice in relation to proposed or contemplated litigation. This type of privilege can only be relied upon in circumstances where the following criteria are met:

  • Where litigation is underway or anticipated. Where litigation is anticipated there must be a real likelihood of litigation taking place; it is not sufficient that litigation is merely a possibility.
  • The dominant purpose of the communications must be to obtain advice to assist in the litigation;
  • The communications must be made between a professional legal adviser and client although privilege may extend to communications made with third parties provided that the dominant purpose of the communication is to assist in the preparation of the case.

Therefore, with reference to the above criteria please explain why [name of PA] believes that the requested information attracts litigation privilege.

Where a privileged communication has been made available to the public or to a third party without restriction any privilege attached to the document will have been waived. Furthermore, the operation of privilege is such that a party may not ‘cherry pick’ those bits of advice which favour their position while refusing to disclose less favourable elements. Privilege operates on an ‘all or nothing’ basis in that a public authority must choose either to disclose the whole advice or rely on privilege in order to withhold the advice.

In light of this please confirm that [name of PA] is satisfied that privilege attached to the withheld information has not been waived.

Furthermore please explain why disclosure of the withheld information which attracts legal professional privilege would adversely affect the course of justice. Please ensure that this explanation demonstrates a clear link between disclosure of the information that has actually been withheld and any adverse affect.

If the [name of PA] is relying on regulation 12(5)(b) because disclosure would adversely affect an inquiry please identify the exact nature of the inquiry. On what basis does the [name of PA] have a duty or power to conduct such an inquiry?

Please clearly explain how disclosure of the withheld information would adversely affect an inquiry. Please ensure that this explanation demonstrates a causal relationship between disclosure of the information that has actually been withheld and any adverse affect.

[Remember to ask adverse affect questions]

[Remember to ask PIT questions].

Regulation 12(5)(c) Intellectual property rights

Please clearly identify the nature of the intellectual property right that will be affected if the information is disclosed and explain how disclosure would adversely affect this right. In doing so, please ensure that this explanation demonstrates a causal relationship between disclosure of the information that has actually been withheld and any adverse affect.

[Remember to ask adverse affect questions]

[Remember to ask PIT questions].

Regulation 12(5)(d) confidentiality of proceedings

The ICO interprets ‘proceedings’ in regulation 12(5)(d) as possessing a certain level of formality. For example, legal proceedings, formal meetings at which deliberations take place on matters within a public authority’s jurisdiction or where a public authority exercises its statutory decision making powers. In the ICO’s view proceedings are unlikely to encompass every meeting or procedure carried out by a public authority.

In light of the above please explain why the [name of PA] considers the set of proceedings which are the focus of this request to be formal in nature.

Furthermore, regulation 12(5)(d) can only apply to proceedings where that confidentiality is provided for by law – this can either be by virtue of common law or by virtue of a specific statutory provision. Therefore please explain on what basis the [name of PA] believes that these proceedings are covered by confidence provided for by law.

Please clearly explain how disclosure of the withheld information would adversely affect the confidentiality of these proceedings. Please ensure that this explanation demonstrates a clear link between disclosure of the information that has actually been withheld and any adverse affect.

[Remember to ask adverse affect questions]

[Remember to ask PIT questions].

Regulation 12(5)(e) Commercial confidentiality

In considering the application of regulation 12(5)(e) the ICO believes that the following four criteria have to be met:

(i) The information has to be commercial or industrial in nature;
(ii) The information has to be subject to a duty of confidence provided by law;
(iii) The confidentiality has to be required to protect an economic interest; and
(iv) That economic interest, and thereby its confidentiality, has to be adversely affect by disclosure of information.

Therefore with reference to each of the four criteria please explain why the [name of PA] has concluded that the withheld information is exempt from disclosure by virtue of regulation 12(5)(e).

With regard to point (ii) the ICO accepts that a confidentiality can be provided either by virtue of common law or by virtue of a specific statutory provision. However, please ensure that your response clearly explains on what basis the [name of PA] believes that the information is covered by a law of confidence.

With regard to point (iv) please ensure that you clearly explain how disclosure of the withheld information would adversely affect the particular economic interest that has been identified. Please ensure that this explanation demonstrates a clear link between disclosure of the information that has actually been withheld and any adverse affect.

[Remember to ask adverse affect questions]

[Remember to ask PIT questions].

Regulation 12(5)(f) Interests of information provider

Regulation 12(5)(f) clearly sets out a number of criteria which must be met for this exception to be engaged, namely:

(i) the person was not under any legal obligation to supply that information to any public authority;
(ii) the person supplying the information did not supply it in circumstances in which the public authority is not entitled, apart from under the EIR, to disclose it; and
(iii) the person supplying the information has not consented to its disclosure.

Therefore please explain why the [name of PA] is satisfied that the three criteria above are met in respect of the withheld information in this case.

Furthermore, please explain how disclosure of the withheld information would adversely affect the interests of the person who supplied that information. In doing so please ensure that the particular interests of the person are clearly identified and that this explanation demonstrates a clear link between disclosure of the information that has actually been withheld and any adverse affect.

[Remember to ask adverse affect questions]

[Remember to ask PIT questions].

Regulation 12(5)(g) Protection of the environment

Please explain in detail why disclosure of withheld information would adversely affect the protection of the environment to which it relates. In doing so, please ensure that this explanation demonstrates a clear link between disclosure of the information that has actually been withheld and any adverse affect.

[Remember to ask adverse affect questions]

[Remember to ask PIT questions].

Regulation 13 – personal data

Regulation 13(1)

In order to assist the ICO’s consideration of the application of regulation 13(1) please identify whose personal data [name of PA] considers the requested information to be.

Please explain why this information is that individual’s/those individuals’ personal data.

Is [name of PA’s] position that all of the withheld information is personal data?

- Special category data

Has [name of PA] considered whether any of the withheld information also constitutes special category data?

If applicable, please explain why you consider the personal data in question to be special category data.
Please confirm that you have considered the conditions for processing set out in Article 9 of the UK GDPR but have been unable to satisfy any of them in order to disclose this personal data/confirm or deny that you hold this personal data. Please note that the Commissioner considers that the only conditions that could be relevant to disclosure under the EIR are conditions (a) (consent from the data subject) or (e) (data made manifestly public by the data subject) in Article 9.

- Criminal offence data

Has [name of PA] considered whether any of the withheld information also constitutes criminal offence data?

If applicable, please explain why you consider the personal data in question to be criminal offence data.

Please confirm that you have considered the conditions for processing as set out in Schedule 1, Parts 1-3 of the DPA 2018 but have been unable to satisfy any of them in order to disclose this personal data/confirm or deny that you hold this personal data. Please note that the Commissioner considers that it is unlikely that one of these conditions will be satisfied in relation to a disclosure under the EIR. The conditions that could be relevant are Part 3 paragraph 29 – consent from the data subject and Part 3 paragraph 32 – data made manifestly public by the data subject.

- Principle (a)

Article 5(1)(a) UK GDPR states that personal data shall be:

“processed lawfully, fairly and in a transparent manner in relation to the data subject”.

To determine whether or not disclosure is lawful, [name of PA] should consider whether there is a lawful basis for processing in Article 6(1) of the UK GDPR:

“processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child”.

The Commissioner considers that the lawful basis most likely to be relevant in relation to a request for information under the EIR is Article 6(1)(f); legitimate interests. In considering the application of Article 6(1)(f) in the context of a request for information under EIR it is necessary to consider the following three-part test:-

i) Legitimate interest test: Whether a legitimate interest is being pursued in the request for information;
ii) Necessity test: Whether disclosure of the information/confirmation or denial that it is held is necessary to meet the legitimate interest in question;
iii) Balancing test: Whether the above interests override the interests, fundamental rights and freedoms of the data subject.

The Commissioner considers that the test of ‘necessity' under stage (ii) must be met before the balancing test under stage (iii) is applied.

- Legitimate interests

In considering any legitimate interest(s) in the disclosure of the requested information/confirmation or denial that it is held under EIR, the Commissioner recognises that such interest(s) can include broad general principles of accountability and transparency for their own sakes as well as case specific interests.

Has [name of PA] identified any legitimate interests in disclosure/confirmation or denial in this case?

- Is disclosure/confirmation or denial necessary?

‘Necessary’ means more than desirable but less than indispensable or absolute necessity. Accordingly, the test is one of reasonable necessity which involves the consideration of alternative measures, and therefore disclosure/confirmation or denial would not be necessary if the legitimate aim could be achieved by something less. Disclosure/confirmation or denial under EIR must therefore be the least intrusive means of achieving the legitimate aim in question.

Please set out why you concluded that disclosure/confirmation or denial is not necessary in this case. How else could the legitimate interests be met in this case?

- Balance between legitimate interests and the data subject’s interests or fundamental rights and freedoms

It is necessary to balance the legitimate interests in disclosure/confirmation or denial against the data subject(s)’ interests, fundamental rights or freedoms. In doing so, it is necessary to consider the impact of disclosure/confirmation or denial. For example, if the data subject would not reasonably expect that the information would be disclosed/confirmation or denial would be provided to the public under EIR, and/or if such disclosure/confirmation or denial would cause unjustified harm, their interests or rights are likely to override legitimate interests in disclosure/confirmation or denial.

Does the information relate to the individual’s public life (i.e. their work as a public official or employee) or their private life (i.e. their home, family, social life)?

What reasonable expectations does the individual have about what will happen to their personal data?

Has the individual named been asked whether they are willing to consent to the disclosure of their personal data/confirmation or denial that their personal data is held?

Please describe the consequences of disclosure/confirmation or denial (if it would cause any unnecessary or unjustified damage or distress to the individual(s) concerned);

Please set out your conclusions as to the balance between the rights and freedoms of the data subject(s) in this case and the legitimate interests of the public in accessing this information.

Please ensure you refer to the specific circumstances of this case.

If not already addressed in the legitimate interest test above, has [name of PA] considered whether disclosure would be more generally unlawful, for example, by breaching a contractual or other legal obligation or breaching the right to privacy in Article 8 of the European Convention on Human Rights, as incorporated in Schedule 1 of the Human Rights Act?

- Fairness

Please set out why you believe disclosure/confirmation or denial would not be fair if different to the considerations of the data subject(s)’ interests, fundamental rights or freedoms above.

- Transparency

Has the data been processed in a transparent manner? What information has [PA] provided to the data subject(s) concerning the request?

Regulation 13(2B)

Has the data subject expressed an objection to the disclosure of their personal data? Please confirm what steps were taken in response to this objection.

[Remember to ask questions about the PIT]

Regulation 13(3A)

Please confirm why the individual who is the focus of the requested information would not be able to access this information under the subject access provisions contained in data protection legislation.

[Remember to ask questions about the PIT]