FOI/EIR FOI / EIR Section/Regulation s17(1)(b), reg 14(3) Issue Failure to specify an exemption/ exception on which the pa later relies
Line to take:

A public authority’s failure to specify in its refusal notice an exemption or exception on which it later relies – either during the course of the Commissioner’s investigation or in its submissions to the Tribunal – is a breach of s17 in FOIA or of reg14 under the EIRs. This includes the situation where a public authority applies the wrong legislation and therefore fails to specify any exemption or exception under the correct legislation before the complaint to the Commissioner.

Note that such breaches of s.17 / reg.14 are generally only included in a DN where the case has been fully investigated, i.e. where the Commissioner has determined whether the duties at section 1(1)(a) and (b) of the FOIA or reg.5(1) of the EIR applied at the date of the request. See LTT187 for other situations.

For when to consider exemptions not originally claimed by a public authority, see LTT21.

Further Information:

Failure to identify the correct exemption / exception

A public authority will have breached s17 of the FOIA if it issues a refusal notice but fails to identify an exemption upon which it later seeks to rely, either during Commissioner’s investigation or in its submissions to the Tribunal. 

In Bowbrick v the ICO the Tribunal stated that “If a public authority does not raise an exemption until after the s17(1) time period, it is in breach of the provisions of the Act in respect to giving a proper notice because, in effect it is giving part of its notice too late.“

In the case of Meunier v the ICO & NS&I, the public authority initially relied upon s40, but in consultation with the ICO, decided to rely instead on s44.  The Tribunal confirmed the above approach in this case by amending the DN to incorporate a finding on s17.

The equivalent breach for late application of an exception under the EIRs would be regulation 14 which deals with the duties of a public authority when a request for environmental information is refused under the exceptions provided at 12(1) and 13(1).  Although the wording of the EIRs differs slightly from that of the FOIA - “refused by a public authority under” rather than  “relying on a claim that ” -  the same principle applies. This is demonstrated in Archer v The Information Commissioner and Salisbury District Council which is discussed further below.

Use of the wrong choice of legislation

In Archer v The Information Commissioner and Salisbury District Council the Tribunal found that although the request had been considered and refused under the Freedom of Information Act by the public authority, and determined under the Freedom of Information Act by the Information Commissioner, it was the Environmental Information Regulations that actually applied to the information in question.

The Tribunal asked for submissions from the parties “as to whether the Appellant’s request comes within the scope of the EIR, and if so, how the exceptions….. apply, on the facts of this case.”  para 31.

The Tribunal went on to find that   “The fact that the Council considered and refused the Appellant’s request under the FOIA rather than the EIR means, inevitably, that where the requirements of the FOIA and EIR differ, the Council will not have complied with the provisions of the EIR.  […] it is appropriate that we record a finding that the Council did not comply with all the applicable requirements.  In particular they did not comply with regulation 14(3) which requires a public authority that refuses a request for environmental information, to specify the EIR exceptions relied on.“

The public authority first claimed exceptions from the EIR before the Tribunal, and these exceptions had not of course been included in the original refusal notice which had cited the FOIA. Therefore a breach of regulation 14 applies.

In the reverse situation, if a public authority were to rely on an FOI exemption having initially refused the request under the EIRs, then (assuming that FOI is the correct legislation) the breach would be of s17 FOIA.

Note that we would hope this situation (in which the correct legislation was applied only at the Tribunal stage) will now be rare. When the Commissioner determines that the public authority has applied the wrong legislation, his normal approach (as per LTT190) will be to require the PA to reconsider and to cite any EIR exceptions it wishes to rely on at the outset of the investigation. This will not of course correct the breach of reg.14 (or s.17 if the opposite situation applies) but this breach would only be included in a decision notice after a full investigation.

Application of exemption / exception solely  by the ICO

Where it is clear that a public authority is in no way relying on a claim that a certain exemption or exception applies, but the Commissioner’s decision is that it does (most likely the Commissioner’s own application of s40 or reg.13 for personal data) then the situation differs.

In practice this should be rare. In most cases we will normally have got some type of confirmation from the PA that it does wish to rely on the exemption / exception we have identified. Also if the PA’s arguments imply reliance on an exemption / exception it could be argued that this means it is to some extent relying on a claim that an exemption applies or refusing under an exception.

However if the PA doesn’t wish to rely on an exemption or exception identified by the Commissioner then it would be difficult to maintain that; under FOI the PA is “to any extent relying on a claim” that an exemption applies, or under EIR that the request “is refused by a public authority under regulations 12(1) or 13(1)”.  Therefore in this case it will not be appropriate to find the public authority in breach for the failing to identify the exemption / exception in its refusal notice.

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Source Details
Information Tribunal

Bowbrick / Nottingham City Council (28 September 2006)

Meunier / NS&I (5 June 2007)

Archer / Salisbury District Council (9 May 2007)
Related Lines to Take
LTT5, LTT21, LTT33, LTT187, LTT190
Related Documents
EA/2005/0006 (Bowbrick),  EA/2006/0059 (Meunier), EA/2006/0037 (Archer)
Contact LA / KP
Date 18/01/2011 Policy Reference

LTT63