LTT188 - Issuing a DN in relation to information already disclosed

• FOI/EIR: FOI/EIR
• Section/Regulation: s10, reg 5(2)
• Issue: Issuing a DN in relation to information already disclosed
• Related Lines to Take: LTT29, LTT187
• Related Documents: link [sic]
• Source: Policy / Operations
• Details: n/a
• Contact: KP
• Date: 18/01/2011
• Policy Reference: LTT188
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Where information has been provided to a complainant prior to the issue of a DN, then our normal approach will be to get the complainant's agreement to withdraw the complaint, or to exclude the provided information from the scope of the Commissioners decision.

However, where the complainant does not agree to this then, if the information has been disclosed outside the time for compliance, but by the time of the DN, the DN will normally find a breach of s10 / reg 5(2) only.

This line applies whenever the information in dispute has been disclosed to the requester prior to the issue of the DN.

Further Information

Where the disputed information has been disclosed in full before or during the Commissioner’s investigation, it is not an efficient use of resources to make a full investigation of whether obligations under s1(1)(a) and (b) or reg 5(1) existed at the time of the request. Previously, such cases were dealt with under the "Robust policy" whereby the Commissioner would not issue a DN if he considered that it would serve no practical purpose. This policy was open to legal challenge and there has therefore been the need to agree a new approach.

The approach is now as follows:

Information disclosed during our investigation

Where the disputed information is disclosed during the Commissioner’s investigation, e.g. as a result of informal resolution, we will encourage the requester to withdraw their complaint. If they refuse to do so, we will issue a short, standard DN recording the late disclosure of the information.

This will normally record a breach of s10(1)or reg 5(2) only — there will be no recorded breach of s1(1) or reg 5(1). We will not generally investigate other potential breaches such as s17. However, the case officer should use their discretion in cases where the complainants main concern is around a particular procedural breach, especially a failure to provide advice and assistance. The case officer may also make a referral to the Enforcement team even where the matters raised are not recorded in the DN.

Where a partial disclosure is made we will attempt to get the complainant’s agreement that the DN will only address any outstanding information. If they do not agree to this then, in relation to any disclosed information which has not been fully investigated, the DN will take the same approach as outlined above, i.e briefly recording the late disclosure in relation to other potential breaches. e.g. s16 or s17, whilst we would not normally consider these in relation to the provided information alone, where the issues also relate to outstanding information then they may be included.

Information disclosed outside the time for compliance but prior to a complaint being made to the ICO

In some circumstances a requester may complain to the Commissioner solely about late disclosure of information. In this case there would appear to be no point in asking the requester to withdraw their complaint. Instead, we will proceed immediately to the short DN as described above.