Line to take - LTT34 - Responses to 'information not held' cases

• FOI/EIR: FOI, EIR
• Section/Regulation: s1, s17, reg 5(1), reg 12(4)(a), reg 12(1), reg 14
• Issue: Responses to ‘information not held’ cases
• Source: Policy Team
• Details: n/a
• Related Lines to Take: LTT33
• Related Documents: Good Practice Guidance 1
• Contact: EW
• Date: 16/02/2007
• Policy Reference: LTT34
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Informing an applicant that information is not held is not a refusal under the FOIA, but is under the EIR.

Further Information

The provisions of s17 do not apply when a public authority informs an applicant that it does not hold requested information. Under the Act, this is not a refusal of the request, but a part of the s1 duty to confirm or deny.

Where a public authority does not respond to an FOI request at all, the Commissioner can require it to either confirm or deny whether the information is held and, if held, communicate it (s1) or lawfully refuse to do either of these (s17).

When the requested information is environmental, however, the fact that it is not held engages an exception to the duty to disclose. This exception is provided by regulation 12(4)(a). Informing an applicant that information is not held under the EIR is therefore a refusal, and the provisions of regulation 14 (refusal to disclose information) apply.

Where a public authority informs an applicant that requested information is not held but does not properly refuse it, it is technically in breach of regulation 14.

Regulation 12(1)(b) states that all exceptions are subject to the public interest test. In virtually all cases, however, it is clearly not possible to consider the public interest in respect of information that is literally not held. It may be possible to consider the public interest where the information was not held at the time the request was made but is held later during the period for responding to the request or by the time a response to a review request is given, but we are unaware of any cases of this kind.

A public authority will have complied with regulation 5(1) (duty to make environmental information available on request) if:

• it holds information and makes it available to the applicant; or
• the Commissioner is satisfied that it was correct in stating that the information isn’t held.

Where we find that that a public authority does hold information it had stated that it did not hold, it will be in breach of:

• regulation 5(1) — because it failed to make information available that it held; and
• regulation 12(1) — because it failed to properly apply the exception in 12(4)(a).

Depending on how it communicated this fact to the applicant, it may also, as above, be in breach of regulation 14.