Line to take - LTT69 - Partial breach of s17

• FOI/EIR: FOI
• Section/Regulation: s17
• Issue: Partial breach of s17
• Source: Information Tribunal
• Details: Berend / LBRT (1 2 July 2007)
• Related Lines to Take: n/a
• Related Documents: EA2006/0049 & EA2006/0050
• Contact: LA
• Date: 24/09/2007
• Policy Reference: LTT69
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Where a refusal notice is defective in some parts but not in others, this will not render the whole refusal notice invalid

Further Information

In Berend v the ICO & London Borough of Richmond upon Thames (LBRT) the complainant argued that because the refusal notice issued by the public authority had not specified the relevant exemption the whole refusal notice was invalid.

The Commissioner had found that the public authority had breached:

• s17(1)(b) for failing to specify the applicable exemption and explain why it applied, &
• s17(7) for failing to provide details of its complaints procedure and of the complainant’s right to appeal to the ICO.

But that it had complied with

• s17(2)(b) in that it informed the applicant that it had not yet reached a decision as to the application of the public interest test and had advised him of an estimated date by which it would expect such a decision to have been reached.

The Tribunal commented that “the purpose of section 17 FOIA is to alert the Appellant to the fact that an exemption is being considered” and found that there “was substantial compliance in that:

• LBRT identified that no final decision had yet been made,
• The public interest was being considered
• A provisional estimate of a further 20 working days was provided”

The Tribunal considered that “The Act provides that where the Commissioner finds that a requirement of section 17 FOIA has not been complied with, the Commissioner can direct the action required to specify the breach. This Tribunal finds that requiring the Commissioner to find that the whole of section 17 FOIA must necessarily be found to be breached if one element is missing, is incompatible with this provision.” A public authority can, therefore, legitimately be found to have complied with one subsection of s17 and breached another.

The Tribunal did note however that the use of section 17(2)(b) “as an attempt to “buy more time” to undertake the primary consideration of the material and thus circumvent the obligation under section 1(1) to confirm or deny what information was held within 20 working days is an inappropriate use of the provisions of the Act” that it would have expected the ICO to comment on. This suggests that in addition to making a decision on whether a s17 breach has occurred or not, it may also be appropriate to make additional comment in the “other matters” section of a Decision Notice in circumstances where this applies.