LTT189 - Non-response cases

• FOI/EIR: FOI/EIR
• Section/Regulation: s10, reg 5(2)
• Issue: Non-response cases
• Related Lines to Take: LTT29, LTT187
• Related Documents: n/a
• Source: Policy / Operations
• Details: n/a
• Contact: KP
• Date: 18/01/2011
• Policy Reference: LTT189
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Where a public authority has not responded to a request for information, the Commissioner will issue a DN specifying a breach of s10(1) or reg 5(2), with steps to either comply with the request or issue a valid refusal.

Note that this is not a change of line but clarifies the existing situation

Further Information

Where a public authority has not responded to a request for information, the Commissioner will issue a DN specifying a breach of the time limits. This will be s10(1) in most cases, or reg 5(2) if it is obvious from the nature of the request that it should be considered under the EIR. The steps will be for the public authority to either comply with section 1(1) / reg 5(1) or issue a valid refusal notice. The DN should state that the public authority failed to deal with the request in accordance with the Act / EIR in that it failed to respond to the request within the statutory time limits.

This is an exception to the normal scenario described in LTT29, which is that a breach of s10 or reg 5(2) can only be found after the duty under s1(1)(a) and (b) or reg 5(1) has been established.

This approach applies only where the authority has completely failed to respond to the request. Where the response has been inadequate or has referred to the wrong piece of legislation then the relevant line is LTT189.

It has been noted that in some cases a "non-response" will not involve any breach of the FOIA. This is because an authority which has previously issued a refusal notice referring to s14(1) (vexatious request) is not always required to issue further refusal notices in respect of similar requests from the same requester. If it appears from the correspondence submitted by the complainant that this is the reason for the non-response, it should be dealt with as a normal s14(1) case.

Further investigation after the response

If the public authority issues a response in accordance with the decision notice, but the requester remains dissatisfied, this may result in a further complaint to the Commissioner. The Commissioner may then be required to undertake a full investigation, considering any exemptions or exceptions which are now being claimed by the authority.

The outcome of this investigation will not be affected by the previous decision notice. In other words:

• the date of the request will remain the date on which the authority received the request, not the date of the initial decision notice
• application of exemptions and the public interest test will be as at the time of the request
• procedural breaches will be as at the time of the internal review (if one was provided) or the time for Compliance as per LTT29.

This means that the second DN may find additional or different breaches from the initial decision notice. For example, where the final investigation determines that the authority had no obligation under section 1(1) at the time of the request, the final decision notice may find no breach of s10(1) even though this was included in the earlier non-response DN.