FOI/EIR FOI Section/Regulation s1 Issue

Finding that further information is held:approach to decision notices

Line to take:

Where the public authority has claimed that no (or no further) information is held, but the Commissioner’s investigation determines otherwise, one approach will be to issue a decision notice ordering the authority either to disclose the information or to issue a refusal notice.

However, there is a wide variety of scenarios, and this approach may not be suitable in every case. This line seeks to identify the different scenarios which may occur and explain the approach the Commissioner will take.

This line does not apply to the EIR, because in the EIR “not held” is an exception. When rejecting an authority’s reliance on reg.12(4)(a) you should refer instead to LTT192
Further Information:

This line lists a number of scenarios in which the Commissioner may reject a public authority’s claim that no (or no further) information is held falling within the scope of the request.

General approach

The Commissioner’s approach to determining whether information is held is covered by LTT121. You must only issue a decision notice once you have come to a decision (on the balance of probabilities) as to whether any or any further information is held. It is not acceptable to issue a decision notice on a “held / not held” case stating that further information “may” be held, and ordering further searches as a step. If the Commissioner is not satisfied with the quality of the searches carried out by a public authority, he will usually ask the authority to undertake further searches as part of the investigation rather than issuing a decision notice.

If it becomes apparent that the searches necessary to determine whether information is held would exceed the cost limits, then we would suggest to the public authority that it may wish to rely on s.12 to refuse the request without confirming or denying whether information is held. The Commissioner may also consider pro-actively whether s.12 may apply. In this situation it is acceptable for a decision notice to say that the Commissioner has not determined whether information is held; in all other held/not held cases, the Commissioner will come to a conclusion on the balance of probabilities.

Information discovered during the investigation

In this circumstance, the authority cannot deny that the information was in fact held. Therefore, a decision notice will not always be necessary.

  • If the authority is happy to disclose the information, follow LTT188. If a DN is issued, this can include a breach of s.1(1)(a) if the authority previously denied that the information was held, as well as a breach of s.10(1).
  • If the authority wishes to withhold the newly-discovered information, and this is the only information still in dispute, we will issue a short DN asking them to consider the newly-discovered information and either disclose or refuse. This is in keeping with our approach to cases in which the authority has failed to address the request at all or has done so inadequately (LTT189 and 190). Again, a breach of s.1(1)(a) and an associated breach of s.10(1) can be found if the authority previously denied that the information was held.

  • If the information is similar to other information which we are investigating as part of the case, and the PA wishes to withhold it under the same exemptions, then the best approach is to continue with the investigation until you are able to issue a decision in relation to all the information falling within the scope of the request.
  • However, the priority is to speed up the outcome for the complainant and so the rest of the investigation should not be delayed whilst the newly discovered information is considered. Therefore, if the investigation on the other information is nearing completion, and the authority is likely to need time to formulate different arguments applying to the new information, it may be best to consider issuing a DN. This would make a finding on the information which has already been fully considered, and include a step requiring the public authority to either disclose the newly-discovered information or issue a refusal notice for this information. Again, there would be a breach of s.1(1)(a) and s.10(1) if the authority had previously denied holding such information.

If the discovery of the new information raises the possibility that there is yet further information not yet identified, you must continue the investigation until you are able to determine (on the balance of probabilities) whether further information is held.

Information held on the balance of probabilities

It should generally be rare for the Commissioner to determine that information is held when the information has not actually been discovered. As explained above, the Commissioner will usually ask the authority to undertake further searches as part of the investigation, rather than determining that further information is held simply because the authority has failed to demonstrate that it is not held.

If however the Commissioner considers that the public authority holds information which has not been located, and the authority continues to dispute this and will not carry out further searches, the Commissioner may issue a DN ordering disclosure or refusal of any further information. In reality, such steps may be difficult to enforce so it is recommended that you get advice from a signatory before following this approach. If the public authority’s reason for refusing to carry out further searches is because of cost, then he may suggest considering s.12.

A more common scenario is where the Commissioner considers that further information was held at the time of the request but is no longer held. In such a case, he may find breaches but will be unable to order steps.

The authority has been working on a mistaken interpretation of the request

Where the Commissioner disagrees with a public authority’s interpretation of a request, he may consider that the authority has not identified and considered all the information falling within the correct scope. In most cases, an authority will accept the Commissioner’s understanding of the request and identify the relevant information as part of the investigation. In this case, the scenario is the same as the one on “information discovered during the investigation” above.

However, if the authority continues to dispute the interpretation of the request, the Commissioner will issue a DN ordering it to identify the information within the scope as explained and disclose or refuse. This is consistent with our approach to cases in which the authority has given an inadequate or no response, since in effect the authority is failing to address the actual request made. In such cases it is vital to be clear and unambiguous as to the correct scope of the request.

LTT89 discusses further how to approach cases where the authority’s interpretation of the request differs from that of the complainant.

The authority claims information is not held for the purposes of the Act

There are three situations in which this may arise:

  • the public authority accepts that it holds the information but states that it is held only on behalf of another;
  • the public authority accepts that the information exists but considers that it is held by another body not on behalf of the authority; or
  • the public authority claims that responding to the request would constitute the creation of new information.

In all three cases, if the Commissioner rejects the authority’s arguments, then he would issue a decision notice ordering the authority to either disclose the information or issue a valid refusal notice. Again, breaches of s.1(1)(a) and s.10(1) may be included if the authority previously denied holding the information. The Commissioner will not be able to find a breach of s.1(1)(b) in these circumstances as the investigation will not have covered whether the information was disclosable at the time of the request. This may be the subject of a future investigation if the requester remains dissatisfied with the authority’s subsequent response.


Source Details


Related Lines to Take

187, 188, 189, 190, 191, 192

Related Documents
Contact KP
Date 18/01/2011 Policy Reference