LTT183 - Discretion to order no steps in a DN

• FOI/EIR: EIR
• Section/Regulation: s50, reg 18
• Issue: Discretion to order no steps in a DN
• Related Lines to Take: LTT92
• Related Documents: OGC v IC [2008] EWHC 737 (Admin); EA/2010/0090 (Gaskell)
• Source: Policy Team, High Court
• Details: OGC (11 April 2008) (High Court decision)
• Contact: LS
• Date: 19/11/2010
• Policy Reference: LTT183
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

If information should have been disclosed at the time of the request but later events mean that disclosure would now be undesirable, the Commissioner has the discretion to find a breach of s1(1)(b) or reg 5(1) but to indicate in the Decision Notice that no steps are required.

Further Information

LTT92 confirms that consideration of the exemptions and public interest test should be based on the circumstances as they existed at the time of the request, or at least the time for compliance with sections 10 and 17.

However, if circumstances have since changed to the extent that disclosure would now be undesirable at the time the Commissioner makes his decision, he will recognise this by indicating that no steps are required in order for the public authority to comply with the Act or Regulations.

This does not mean that caseworkers need to investigate whether there has been any relevant change of circumstances in every case. Only in limited circumstances is it likely to be necessary to use the discretion not to order disclosure, where the change in circumstances is explicitly raised by the public authority or is otherwise obvious from the context of the case. Cases where the Commissioner chooses to exercise his discretion may for example include:

• where responsibilities have transferred from one public authority to another, so that a statutory bar would now apply to the disclosure
• a change in circumstances after the request which means it would now be unfair to reveal personal data.
• other evidence of an impact on the rights of individuals — eg due to a change in circumstances disclosure would now compromise an individual’s health or safety
• court proceedings have been commenced since the date of the request and disclosure would prejudice the fairness of the trial

This is not intended to be an exhaustive list and there may be other situations where we would exercise this discretion Caseworkers are advised to obtain a steer from their Group Manager or another signatory if they consider ordering disclosure would now be inappropriate.

The High Court in the case of OGC v ICO and HM Attorney General [2008] EWHC 737 (Admin) considered this issue. The High Court gave the example of a request which is relevant to criminal proceedings that were commenced after the date of the request and where disclosure would prejudice the fairness of the trial. Although the Court did not give a definitive ruling, it said that it would be "undesirable" for the Commissioner to order disclosure where the information was not exempt at the time of the request but became so thereafter.

The High Court went onto say at paragraph 98:

"...it seems to me to be arguable that the Commissioner's decision whether a public authority complied with Part I of the Act may have to be based on circumstances at the time of the request for disclosure of information, but that his decision as to the steps required by the authority may take account of the subsequent changes of circumstances..."

The Commissioner is aware of the different view taken in Gaskell v ICO and HMRC (EA/2010/0090, 11 October 2010), where the Tribunal found that the Commissioner did not have any such discretion and was obliged to order disclosure irrespective of any change in circumstances. However, the Commissioner will maintain the line set out above and is applying for permission to appeal this decision. Pending the outcome of any appeal, the Gaskell decision is flagged red and should not be followed. Caseworkers should continue to follow this line.