FOI/EIR FOI Section/Regulation s10, s17 Issue Time extension for public interest test – procedural breaches
Line to take:

In a situation where a public authority has claimed an exemption and extended the time for compliance in order to carry out the public interest test, then the Commissioner will always find a breach of 10(1), rather than 10(3), where there has been a breach of section 1(1). This because the Commissioner has taken the view that 10(3) is a modification of 10(1) rather than a stand-alone obligation.

A breach of section 10(1) can also be found in relation to information which has been disclosed where the authority has taken an excessive length of time to consider the public interest test (though note LTT187 regarding information which has been ‘scoped out’ of the investigation).

Taking an excessive length of time to advise an applicant of the outcome of the public interest test, via the separate notice allowed by 17(3) will also be a breach of 17(3).

This line is not a complete guide to procedural breaches. It should be used in conjunction with LTT29.

Further Information:

Where the public authority has claimed an exemption, and extended the time for compliance in order to carry out the public interest test, it is important to make a determination on whether the information is disclosable (i.e. whether any exemptions apply) before coming to a view on procedural breaches.

Breaches of section 10 are related to section 1, i.e. whether the authority had an obligation to confirm whether information was held or to disclose the information. Section 17, on the other hand, relates to the authority’s duty to be prompt and transparent in explaining its reasons for refusal to the applicant, whether or not the Commissioner ultimately agrees with those reasons.

The following table shows when breaches apply in each case. Note that this line only covers situations where an authority has claimed a qualified exemption and extended the time for compliance in order to carry out the public interest test. The main line on procedural breaches is LTT29.

 

Information disclosable or exemption from duty to confirm or deny does not apply. Qualified exemption not engaged.

Finding

Breaches

Further explanation

Authority issued a PIT extension notice and then  carried out public interest test within a reasonable time.

Authority  issued a PIT extension notice and then took unreasonable time to communicate the outcome of the public interest test

1(1)(a) and/or (b) as appropriate

10(1)

1(1)(a) and/or (b), 10(1), 17(3)

If the exemption is not engaged, 10(3) does not apply and the information should have been disclosed within 20 working days.

Just as 17(1) includes the time limit for a refusal notice, 17(3) contains a time limit (“such time as is reasonable in the circumstances”) for the second notice communicating the outcome of the PIT.

Information disclosable or exemption from duty to confirm or deny does not apply. Qualified exemption engaged but PIT favours disclosure.

Finding

Breaches

Further explanation

Authority issued a PIT extension notice and then carried out public interest test within a reasonable time

Authority issued a PIT extension notice and then took unreasonable time to communicate the outcome of the public interest test

1(1)(a) and/or (b), 10(1)

1(1)(a) and/or (b), 10(1), 17(3)

Because there is a breach of 1(1), there is also a breach of section 10(1). The Commissioner’s view is that section 10(3) simply modifies 10(1), in the same way as an exemption modifies the duty to comply with section 1, so it is more accurate to find a breach of 10(1) rather than 10(3).

The Commissioner will still find a breach of 10(1) rather than 10(3). This is because 10(3) does not refer to the time taken to carry out the public interest test but to the time for compliance with 1(1). As explained above, 10(3) is a modification of 10(1), so the breach should be 10(1).

Just as 17(1) includes the time limit for a refusal notice, 17(3) contains a time limit (“such time as is reasonable in the circumstances”) for the second notice communicating the outcome of the PIT.

Information correctly withheld or exemption from duty to confirm or deny does apply

Finding

Breaches

Further explanation

Authority issued a PIT extension notice and then carried out public interest test within a reasonable time.

Authority issued a PIT extension notice and then took unreasonable time to communicate the outcome of the public interest test

No breaches of 1(1)(a) (b), 10 or 17(3)*

17(3)

As explained above, 10(3) refers to the time for compliance with section 1(1) rather than the time taken for the public interest test. Where there is no section 1 duty, an excessive delay in advising the applicant of the outcome of the public interest test is a section 17(3) breach only. This is consistent with the Commissioner’s position on section 10(1) and 17(1) breaches in LTT39.

*This table only considers breaches of section 1(1), 10 and 17(3). Where a qualified exemption has been applied, the Commissioner may also consider whether there are any breaches of 17(1) or 17(2) in relation to the initial refusal notice. See LTT29.

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Source Details
Policy
Related Lines to Take

LTT29, LTT187

Related Documents

Time limits on considering the public interest (GPG4)

Contact KP
Date 11/03/2011 Policy Reference

LTT210