The UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.

Introduction

This is the document that our case officers use when we write to public authorities. It includes introductory information about the exemptions 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 exemptions 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 exemptions. 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 exemption 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 specific questions that will arise from the particular circumstances of each case. However, the questions are designed to cover all the substantive tests under each exemption in FOIA.

For a number of sections, the guidance includes a brief paragraph of introduction to the exemption. This is intended to provide contextual background to the questions that follow which may prove useful when writing to PAs who do not deal with FOI requests or the ICO regularly.

For exemptions which are particularly involved, where there is well established case law precedent, and/or prescriptive LTTs (e.g. sections 40 and 35) the questions are lengthier and more specific in nature. For exemptions where the ICO’s approach is less well developed (e.g. section 37) the questions are briefer and more general in nature.

The majority of the questions do not explicitly address the issue of neither confirm nor deny (NCND) however it should be easy to edit the questions to deal with cases where this has been relied upon.

Section 1 – 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?

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 its searches to support its conclusions.

Sections 2(1)(b) and 2(2)(b) – public interest tests

[If a ‘qualified’ exemption has been cited, the public authority will need to explain how it has considered the public interest tests set out at section 2(1)(b) or section 2(2)(b) of the Act.

In order to determine whether the public interest tests have been applied appropriately, the ICO will require answers to the following questions:]

What public interest arguments in favour of disclosing the information/confirming or denying whether the information is held were taken into account?

What public interest arguments in favour of maintaining the exemption/neither confirming nor denying whether the information is held were taken into account?

Please explain why you consider that on balance the public interest in maintaining the exemption [or neither confirming or denying] outweighs that in disclosing of 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.

Section 3(2) – Held/Not held

Section 3(2)(a)

Please explain on what basis the [name of PA] has concluded that although it physically holds the information of the nature requested it does not hold this information for the purposes of the Act – i.e. on what basis have you concluded that although you physically hold the information it is not needed for any of the [name of PA’s] own functions.

Section 3(2)(b)

Please explain the nature of the relationship between the [name of PA] and the third party which physically holds the requested information with respect to the information itself in order to allow the ICO to determine whether this information is held on behalf of the [name of PA].

If applicable, please provide a copy of the contract between the [name of PA] and third party in relation to this information.

Section 11 – means of communication

Section 11 allows an applicant to specify a means of communication by which he would prefer to be provided with the requested information. In this case the complainant has specified that he wishes communication to be made [describe the form in which the applicant has requested the information].

Please confirm that in responding to this request the [name of PA] has considered the preferred means of communication specified by the complainant.

If the [name of PA] has not complied with the preferred means of communication please provide a detailed explanation which sets out why it was concluded that to comply with such a preference would be unreasonable in all the circumstances of this request.

Section 12 – the cost of compliance exceeds the appropriate limit

Section 12(1) allows a public authority to refuse to comply with a request for information if the authority estimates that the cost of compliance would exceed the ‘appropriate limit’, as defined by the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (the Regulations).
Section 12(2) allows a public authority to refuse to confirm or deny whether it holds information of the nature requested if simply to do so would in itself exceed the appropriate limit.

The appropriate limit 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.

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. (Or confirming whether information falling within the scope of the request is held).

When providing these calculations please include a description of the nature the type of work that would need to be undertaken (e.g. searching X number of files– 1 hour).

In providing this estimate please be aware that a number of Information Tribunals have made it clear that an estimate for the purposes of section 12 has to be ‘reasonable’ which means that it is not sufficient for a public authority to simply assert that the appropriate limit has been met; rather the estimate should be realistic, sensible and supported by cogent evidence.

Please clarify whether a sampling exercise has been undertaken in order to determine this estimate.

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.

Section 16 places a duty on a public authority to provide advice and assistance to someone making an information request, including helping an applicant refine a request so that it can be answered within the appropriate costs limit. 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.

Section 14 – vexatious and repeated requests

Section 14(1)

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.

The ICO has published guidance on applying section 14(1) of FOIA which includes information on how to apply this balancing exercise. You are strongly advised to review this guidance before responding to this letter.

As this guidance explains, when determining whether section 14(1) has been applied correctly 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 [name of PA] relied on section 14(1) to refuse the request. Your response should include:

• Details of the detrimental impact of complying with the request;
• Why this impact would be unjustified or disproportionate in relation to the request itself and its inherent purpose or value;
• And, if relevant, details of any wider context and history to the request if [name of PA] believes that this background supports its application of section 14(1). Please provide any relevant documentary evidence / background evidence to support such a claim.’

Prejudice-based exemptions

[The Commissioner’s guidance on the prejudice test sets out a three step test which must be followed for a prejudice based exemption to be engaged:

  • the applicable interests within the exemption must be identified;
  • the nature of the prejudice must be considered; and
  • the likelihood of the prejudice occurring must be considered.

For the purposes of this key questions document wording in relation the first two tests is included, where appropriate, in each particular set of questions. However, standard wording for asking for submissions on the likelihood of prejudice, i.e. the third criteria, is set out below and can be used for all prejudice based exemptions.]

The ICO has been guided on the interpretation of the phrase ‘would, or would be likely to’ by a number of Information Tribunal decisions. The Tribunal has been clear that this phrase means that there are two possible limbs upon which a prejudice based exemption can be engaged; i.e. either prejudice ‘would’ occur or prejudice ‘would be likely to’ occur.

With regard to likely to prejudice, the Information Tribunal in John Connor Press Associates Limited v The Information Commissioner (EA/2005/0005) confirmed that ‘the chance of prejudice being suffered should be more than a hypothetical possibility; there must have been a real and significant risk’.

With regard to the alternative limb of ‘would prejudice’, the Tribunal in Hogan v Oxford City Council & The Information Commissioner (EA/2005/0026 & 0030) commented that ‘clearly this second limb of the test places a stronger evidential burden on the public authority to discharge’.

Please confirm which threshold of likelihood [name of PA] is relying on in this case, i.e. the lower threshold that disclosure ‘would be likely’ to have a prejudicial effect or the higher threshold that disclosure ‘would’ have a prejudicial effect.

Section 21 – information accessible to applicant by other means

Please clearly explain how the requested information would be accessed by the applicant and why this information is considered to be reasonably accessible to him/her specifically.

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 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.

Has [name of PA] taken into account the particular circumstances of the applicant when deciding whether access to the information is reasonable?

Where the public authority has applied section 21(2)(b), please provide details of the enactment which public authority is relying upon.

Section 22 – information intended for future publication

In order correctly rely on section 22 there must have been a settled intention to publish the requested information prior to the request being received. Therefore, please provide evidence which demonstrates that the information was going to be published at the time of the initial request. Was the publication date determined when the request was actually received? If so, please confirm on date publication will take place.

Furthermore, for this exemption to be relied on section 22(1)(c) requires that the application is ‘reasonable in all the circumstances’ of the request. Therefore, please explain why in this case the [name of PA] concluded that the application of the exemption was a reasonable one.

[Remember to ask questions about the PIT]

Section 23 – information supplied by, or relating to, bodies dealing with security matters

Please confirm whether the [name of PA] is relying on section 23(1) on the basis that the requested information was directly or indirectly supplied to it by one the bodies in sub-section (3) or on the basis that requested information relates to one of the bodies in subsection (3).

If the position is that the information was directly or indirectly supplied to [name of PA] please clarify which of the bodies listed in section (3) it was supplied by. If it was indirectly supplied to the [name of PA] please explain the connection between the information and the relevant security body.

If the position is that the information relates to one of the bodies listed in subsection (3) please clarify which of the bodies the information relates to and why – i.e. what is the connection between the information and the named security body.

Is [name of PA] relying on section 23(1) to withhold all of the information falling within the scope of the request or just part of it?

If a certificate has been issued by a Minister of the Crown under section 23(2) please provide a copy of that the certificate.

Section 24 – national security

Please provide a detailed explanation to support the [name of PA] position that withholding this information is required in order to safeguard national security.

In providing this explanation please be aware that ICO interprets ‘required’ in the context of section 24 to mean reasonably necessary and therefore this sets a high threshold which has to be met in order for this exemption to be engaged. Consequently, it is not sufficient for the requested information simply to relate to issues of national security, rather there must be evidence of specific and real threats to national security which would occur if the requested information was disclosed.

If a certificate has been issued by a Minister of the Crown under section 24(3) please provide a copy of the certificate.

[Remember to ask questions about the PIT]

Section 26 – defence

Please provide a detailed explanation which demonstrates why disclosure of the withheld information would, or would be likely to prejudice:

• the defence of the British Islands or any colony (section 26(1)(a)); or
• the capability, effectiveness or security of any relevant forces (section 26(1)(b)).

Please ensure that you provide evidence which demonstrates a causal relationship between disclosure of the information that has actually been requested and any prejudice which may occur.

[Remember to ask questions about likelihood]

[Remember to ask questions about the PIT]

Section 27 – international relations

Section 27(1)

Please confirm which sub-section(s) of 27(1) the [name of PA] is relying on to withhold the information that has been requested and furthermore please provide a clear explanation which sets out why disclosure of the information would, or would be likely to result in the prejudice a particular sub-section is designed to protect.

Please ensure that you provide evidence which demonstrates a causal relationship between disclosure of the information that has actually been requested and any prejudice which may occur.

[Remember to ask questions about likelihood]

Section 27(2)

In order to allow the ICO to consider the application of section 27(2) please confirm which State, international organisation or international court the [name of PA] received the information requested information from.

Furthermore, please explain on what basis the [name of PA] believes that the terms upon which this information was obtained would lead the third party to believe that this information would be treated confidentially. For example, is there a formal agreement between the [name of PA] and third party which indicates that confidentiality is required? If so, please provide a copy of any such agreement.

[Remember to ask questions about the PIT
– bear in mind inherent the PIT in 27(2) – see LTT134]

Section 28 – relations within the United Kingdom

Please provide a detailed explanation which sets out why disclosure of the withheld information would, or would be likely to prejudice relations between any administration in the United Kingdom and any other such administration.

Please ensure that you provide evidence which demonstrates a causal relationship between disclosure of the information that has actually been requested and any prejudice which may occur.

[Remember to ask questions about likelihood]

[Remember to ask questions about the PIT]

Section 29 – the economy

Please confirm which sub-section of 29(1) the [name of PA] is relying on to withhold the requested information and provide a detailed explanation which sets out why disclosure of the withheld information would, or would be likely to prejudice what each sub-section is designed to protect.

Please ensure that you provide evidence which demonstrates a causal relationship between disclosure of the information that has actually been requested and any prejudice which may occur.

[Remember to include questions about likelihood]

[Remember to ask questions about the PIT]

Section 30 – Investigations and proceedings conducted by public authorities

Section 30(1)

Please confirm which sub-section(s) of 30(1) the [name of PA] is relying on to withhold information.

With regard to sections 30(1)(a) and 30(1)(b) please confirm the nature of the investigation and explain why the withheld information relates to this specific investigation. Please also clarify whether this investigation was complete at the time of the request.

[For all sub-sections of 30(1)] Please explain why the withheld information is needed by the [name of PA] to fulfil the investigatory functions set out in 30(1)(a) to (c). If not clear, please explain on what basis the [name of PA] has the power to carry out such an investigation.

Section 30(2)(a)

Please confirm which of the sub-sections in 30(2)(a) the [name of PA] is relying on to withhold the information. Please explain why the withheld information relates to the functions listed in 30(2)(a).

Section 30(2)(b)

Please confirm why the [name of PA] has concluded that the withheld information relates to the obtaining of information from a confidential source.

[Remember to ask questions about the PIT – see LTT20 for the particular PI issues relevant to s30]

Section 31 – law enforcement

Please confirm which sub-section(s) of 31(1) the [name of PA] is relying on to withhold the information that has been requested.

Please clearly explain why disclosure of the information would prejudice, or be likely to prejudice the function which a particular sub-section is designed to protect.

Please ensure that you provide evidence which demonstrates a clear link between disclosure of the information that has actually been requested and any prejudice which may occur.

[And/or]

If relying on section 31(1)(g), please confirm which of the [name of PA] functions listed in 31(2)(a) to (i) would or would be likely to be prejudiced by release of the requested information. Please explain on what basis the [name of PA] has the authority to undertake this function (citing statute wherever possible).

Please ensure that you provide evidence which demonstrates a causal relationship between disclosure of the information that has actually been requested and any prejudice which may occur.

[Remember to ask questions about likelihood]

[Remember to ask questions about the PIT]

Section 32 – court records

Please confirm which of the subsections in either section 32(1) or section 32(2) the [name of PA] is relying on to withhold the requested information.

Please ensure that you explain which ‘court’, ‘proceedings’ or ‘inquiry’ the court record relates to.

If [name of PA] did not create the information which is being withheld on the basis of section 32, please explain how the [name of PA] came to hold this information.

If [name of PA] did create the information which is being withheld on the basis of section 32, please explain for what purpose this information was originally created.

Section 33 – audit functions

Section 33 can only apply to a public authority that has the functions set out in sections 33(1)(a) or 33(1)(b). Therefore please explain on what basis the [name of relevant PA] has a function either in relation to the audit of accounts of other public authorities or a function in relation to the examination of the economy, efficiency and effectiveness with which such authorities use their resources in discharging their functions.

[No need to ask the preceding para if the PA clearly has an audit function, e.g. Audit Commission].

Which of the [name of relevant PA] functions would, or would be likely to, be prejudiced by the disclosure of the information and in particular how would this prejudice affect the [name of relevant PAs] exercise of the functions set out in 33(1)(a) or 33(1)(b).

Please ensure that you provide evidence which demonstrates a clear link between disclosure of the information that has actually been requested and any prejudice which may occur.

[Remember to ask questions about likelihood]

[Remember to ask questions about the PIT]

Section 34 – parliamentary privilege

Please provide a detailed explanation setting out how disclosure of the requested information would result in an infringement of the privileges of either House of Parliament.

If a certificate has been issued under section 34(3) by either the Speaker of the House of Commons or the Clerk of the Parliaments, please provide a copy.

Section 35 – formulation of government policy, etc

Section 35(1)(a)

Please clarify exactly which government policy or policies the [name of PA] considers this information to relate to.

The Information Tribunal has made it clear that in cases where section 35(1)(a) applies central to the consideration of the public interest test is the timing of any request. This is because once the formulation/development of a policy has been made completed, the risk of prejudicing the policy process by disclosing information is likely to be reduced and so the public interest in maintaining the exemption deserves less weight. (See for example: DFES v Information Commissioner, EA/2006/0006,). Furthermore, the Tribunal has made it clear that policy formulation and development is not one which is a ‘seamless web’, i.e. a policy cycle in which a policy is formulated following which any information on its implementation is fed into the further development of that policy or the formulation of a new policy.

It is therefore necessary for the ICO to be able to identify when the policy formulation/development stage to which the withheld information relates ended and the implementation of this policy began. Therefore, please explain when the [name of PA] considers the formulation/development of the policy or policies to which this information relates to have been completed, or indeed confirm why the [name of PA] considers the formulation/development of this particular policy (or polices) to have been ongoing at the time the complainant submitted his request.

If a decision in relation to the relevant policy has been taken, in line with the requirements of section 35(2) please confirm that any statistical information has not been withheld on the basis of section 35(1)(a).

Section 35(1)(b)

If not clear please, identify which Ministers the communications involve, or which Cabinet/committee discussions the information relates to; describe (in adequate detail) how the information relates to the communications in question.

If a decision in relation to the relevant policy has been taken, in line with the requirements of section 35(2) please confirm that any statistical information has not been withheld on the basis of section 35(1)(b).

Section 35(1)(c)

If not clear, identify the Law Officers asked to provide the advice and what advice was being sought or provided.

Section 35(1)(d)

Which private office(s) does the information relate to? How does it relate to its/their operation?

[Remember to ask questions about the PIT. When asking about the PIT in relation to the application of section 35(1)(a) clarify that sufficient regard has been given to the requirements of section 35(4).]

Section 36 – prejudice to effective conduct of public affairs

Section 36 is a prejudiced based exemption which works in a slightly different way to the other prejudiced based exemptions contained within the Act. Section 36 can only be engaged if in the reasonable opinion of the qualified person disclosure would result in any of the effects set out in section 36(2) of the Act.

In order for the ICO to determine whether section 36 was correctly applied please provide a copy of the submissions given to the qualified person in order for them reach their opinion and a copy of the opinion which was subsequently provided. If either the submissions or opinion were not written down please describe the nature of the submissions and the opinion itself.

Furthermore, if in providing such documents, the following is not clear, please provide a response to the following questions:

• When was this opinion sought and when was it given?
• What information did the qualified person have access to when giving this opinion?
• For example, did the qualified person have access to the information itself or just a summary of the information that had been withheld?
• Was the qualified person provided with any submissions supporting a recommendation that the exemption was engaged?
• Similarly, was the qualified person in fact provided with any contrary arguments supporting the position that the exemption was not engaged?

Please clarify which limb(s) of section 36(2) the qualified person considered to be engaged; please note the limbs are not mutually exclusive, but the qualified person does need to specify which limb or limbs they consider to be engaged.

If [name of PA] is relying on section 36(2)(c) – i.e. ‘otherwise prejudice effective conduct of public affairs’ – please clarify what the nature of this prejudice is.

[Remember to ask questions about the PIT – for the section 36 exemption, see particular approach to the PIT set out in LTT 36]

Section 37 – communications with Her Majesty, etc. and honours

Section 37(1)(a)

Explain why [name of PA] believes that the information relates to communications with the Queen, with other members of the Royal Family or with the Royal Household.

Section 37(1)(b)

Explain why [name of PA] believes that the information relates to the award of any honour or dignity by the Crown (subsection (1)(b)).

[Remember to ask questions about the PIT]

Section 38 – health and safety

Please explain why disclosure of the information would endanger, or be likely to endanger the health or safety of an individual.

Please ensure that you provide evidence which demonstrates a clear link between disclosure of the information that has actually been requested and any endangerment to an individual which may occur.

[Remember to ask questions about likelihood]

[Remember to ask questions about the PIT]

Section 40 – personal information

Section 40(1)

Why has [name of PA] concluded that all of requested information constitutes the personal data of the applicant?

Section 40(2)

In order to assist the ICO’s consideration of the application of section 40(2) 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 FOIA 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 FOIA. 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 FOIA 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 FOIA 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 FOIA, 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 FOIA 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 FOIA, 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?

Section 40(3B)

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]

Section 40(4A)

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]

Section 41 – information provided in confidence

For section 41(1)(a) to be met the information must have been provided by a third party. Therefore please identity which third party provided [name of PA] with the withheld information.

For section 41(1)(b) to be met disclosure of the withheld information must constitute an actionable breach of confidence. In the ICO’s view a breach will be actionable if:

  1. The information has the necessary quality of confidence. (Information will have the necessary quality of confidence if it is not otherwise accessible and if it is more than trivial; information which is of importance to the confider should not be considered trivial.)
  2. The information was communicated in circumstances importing an obligation of confidence. (An obligation of confidence can be expressed explicitly or implicitly. Whether there is an implied obligation of confidence will depend upon the nature of the information itself, and/or the relationship between the parties.)
  3. Unauthorised disclosure would cause a specific detriment to either the party which provided it or any other party. (Please note that the approach taken by the courts in some cases is that detriment is not always a pre-requisite to an actionable breach of confidence.)

Therefore, with reference to the three criteria above, please explain why disclosure of the withheld information to the public would constitute an actionable breach of confidence.

Although section 41 is an absolute exemption, the law of confidence contains its own built in public interest test with one defence to an action being that disclosure is in the public interest. Therefore please explain the public interest arguments considered by [name of PA] in this case and explain why it was concluded that there was not a sufficient public interest in disclosure of the information in order to defend any actionable breach.

Section 42 – legal professional privilege

Please confirm whether [name of PA] is relying on the fact that the withheld information is subject to 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 [named PA] believes that the withheld 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; and
  • 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 [named PA] believes that the withheld information attracts litigation privilege.

Privilege can only attach to communications which remain confidential. 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 lost.

In light of this please confirm that [named PA] is satisfied that the legal advice remains privileged.’

[Remember to ask questions about the PIT]

Section 43 – commercial interests

Section 43(1)

Provide evidence to support the position that the withheld information constitutes a trade secret. For example, is it the case that the information is used to gain a competitive advantage but it is not generally known in that trade or business? Are steps taken to keep the information secret?

Section 43(2)

Please identify the party or parties whose commercial interests would, or would be likely to be prejudiced if the withheld information was disclosed.

Please provide a detailed explanation to support the position that disclosure of the withheld information would, or would be likely to prejudice a party’s commercial interests.

Please ensure that you provide evidence which demonstrates a clear link between disclosure of the information that has actually been requested and any prejudice to commercial interests which may occur.

If the prejudice relates to the commercial interests of third parties, in line with the Information Tribunal decision in the case Derry Council v Information Commissioner (EA/2006/0014), the ICO does not consider it appropriate to take into account speculative arguments which are advanced by public authorities about how prejudice may occur to third parties. Whilst it may not be necessary to explicitly consult the relevant third party, arguments which are advanced by a public authority should be based on its prior knowledge of the third party’s concerns. Therefore, please clarify on what basis you have established that disclosure of a third party’s interests may occur and please provide copies of correspondence the [name of PA] has had with third parties in relation to this request.

[Where the information concerns a tendering process] Provide a copy of the Invitation to Tender (where appropriate), details of when the tendering process was complete or details of what stage the tendering process had reached when the request for information was made. Please also provide details of when the tendering process is likely to be completed.

[Remember to ask questions about likelihood]

[Remember to ask questions about the PIT]

Section 44 – prohibitions on disclosure

Section 44(1)(a)

Please specify the enactment and the specific provision(s) of that enactment which prohibit disclosure of the withheld information. Explain in detail why the provision(s) in question would prohibit disclosure of the withheld information. Where relevant, please explain why [name of PA] has concluded that the gateways to disclosure or exceptions to the prohibition contained within the enactment are not engaged in respect of this request.

Section 44(1)(b)

[Relating to information prior to the end of transition period 31.12.2020] Please specify the European Union Community obligation and the specific provision(s) of that obligation which prohibit disclosure of the withheld information. Explain in detail why the provision(s) in question would prohibit disclosure of the withheld information.

Relating to information after the end of transition period 31.12.2020] Please specify the retained European Union obligation and the specific provision(s) of that obligation which prohibit disclosure of the withheld information. Explain in detail why the provision(s) in question would prohibit disclosure of the withheld information.

Section 44(1)(c)

Please explain in detail why disclosure of the withheld information would constitute or be punishable as a contempt of court.