Line to take - LTT3 - Information deleted after request

• FOI/EIR: FOI
• Section/Regulation: s1
• Issue: Information deleted after request
• Source: Information Tribunal
• Details: Harper / Royal Mail (15 November 2005)
• Related Lines to Take: LTT2, LTT4
• Related Documents: FS50058993, EA/2005/0001
• Contact: EW
• Date: 04/08/2006
• Policy Reference: LTT3
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Where information is deleted in the ordinary course of business between receipt of a request and the time when the request is complied with, public authorities may be able to lawfully state that the information is not held. A public authority which, following a request for information, decides to delete that information, outside the ordinary course of business, would be acting unlawfully.

Further Information

In the case of Harper v the Information Commissioner and the Royal Mail, the Tribunal discussed the meaning of s1(4), confirming that it suggests that “in some cases information could be held when the request is received, but no longer appear to be held at the time when the request falls to be complied with” (para. 17).

Section 1(4) provides that the information to which the duties apply under the Act is that which is “held at the time when the request is received, except that account may be taken of any amendment or deletion made between that time and the time when the information is to be communicated [...], being an amendment or deletion that would have been made regardless of the receipt of the request.”

The Tribunal explains that this means if information is deleted in the ordinary course of business following receipt of a request but before the time for compliance expires, may be able to state that it is not held (dependent on the extent to which it has been deleted) (para. 17).

The Tribunal provides an example of a situation in which a public authority could take account of deletion. Here, a request is made on 1 January. The information requested is held on a database which is completely erased every six months, and this erasure occurs on 10 January. The time for compliance is the end of the January, and at that time the public authority may inform the applicant that the information is not held (para. 17). [Note, however, that s.10 requires public authorities to comply with s.1 promptly, and no later that the twentieth working day following receipt.]

In contrast, a public authority which decides to delete relevant requested information when this is not in the ordinary course of business, subsequent to a request being received would be acting unlawfully (para. 17). [In particular it would be likely to commit the offence at s77 of the Act (Offence of altering etc. records with intent to prevent disclosure)]

The Tribunal notes that s1(4) says that account may be taken of any amendment or deletion, not that it must and interprets this as meaning that where the deleted or original version is the information requested and it is “readily accessible” it should be recovered and communicated to the applicant. It further suggests that the public authority might provide an explanation of what happened to the information since the request was received (para. 18).

Where both deleted or amended and undeleted or unamended versions of the requested information exist, the Tribunal recommended that in general “the version that was extant at the time at which the request was received should be supplied” (para. 27).