PLC Public Sector reports:
We recently attended a meeting of the SLG London and Homes Counties information/data protection special interest group. The group was very well attended and clearly provides an excellent forum for those working in local government to discuss information law issues.
Present at the meeting was a representative from the Information Commissioner’s Office (ICO), enacting the general ICO approach of providing assistance to those public authorities that take their information law obligations seriously, by being happy to join in the discussions on the issues that group members raised. In particular, he gave one piece of advice that could save some authorities a lot of time and resources when responding to FOIA requests.
During a discussion about a recent decision notice issued by the ICO, one of the attendees commented that they were surprised that the ICO had found that an exemption was not available to an authority on the basis that it seemed obvious that the authority met the necessary criteria.
The ICO representative’s response can be best summed up as “never assume anything”. He pointed out that whenever a decision notice is appealed to the tribunal, the ICO is always one of the parties to the appeal, whether the appeal is made by the public authority or the requester. Understandably, the ICO does not want to:
- Lose a succession of cases because the party that they have favoured has not seen fit to fully set out their arguments on the basis that they thought they were obvious.
- Have to do a public authority’s work for them.
Therefore, the strength of argument put forward by a public authority will have a significant impact on whether the public authority is successful in being able to rely on the exemption that they claim applies.
The ICO representative gave the example of identical FOIA requests recently made to two public authorities. Both authorities refused to supply the information and appeals were made to the ICO. One of the authorities set out full and detailed arguments as to why they were entitled to rely on an exemption and not disclose the information, the ICO reviewed the case and informed the requester that they had no chance of succeeding in their appeal. The matter was dropped without the need for a decision notice and the information was not disclosed. The second authority failed to engage in the process and did not provide information to support their assertion that an exemption applied. This matter proceeded to a decision notice and the authority was ordered to disclose the information.
All public authorities should learn from this example and make sure that they take their FOIA obligations seriously from the outset, even more so once the ICO has become involved, and make sure that:
- All applicable exemptions are argued (this should obviously have been done in the initial response anyway).
- All available evidence to support the application of these exemptions is supplied.
However, it is important to note that this does not simply mean claim anything and everything and swamp the ICO with as much information as possible (whether it is relevant or not). Unsurprisingly, this is likely to provoke a somewhat negative response from the ICO. The key messages to learn are:
- Engage fully on first receipt of a FOIA request.
- If the matter goes to the ICO make sure you fully argue your case.
- Do not get carried away. It is much better to argue one exemption fully, than dilute your resources and arguments by including spurious references to numerous other exemptions.