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Learnings from ICO decision notices

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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.