Line to take - LTT100 - Information pre-dating an investigation

• FOI/EIR: EIR
• Section/Regulation: s30, reg 12(5)(b)
• Issue: Information pre-dating an investigation
• Source: Information Tribunal
• Details: Watts / Bridgend County Borough Council
• Related Lines to Take: LTT19, LTT20, LTT67
• Related Documents: EA/2007/0022
• Contact: LA
• Date: 10/04/2008
• Policy Reference: LTT100
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Information created before the commencement of an investigation may still engage the exception at Reg 12(5)(b) of the EIR or the exemption at s30 of FOIA.

Further Information

In Wafts v the Information Commissioner the information in question was the environmental health reports on the premises of a particular meat supplier.

The information was withheld because at the time of the request criminal proceedings were pending against the owner of the premises. It was accepted by all parties that the reports in question came into existence before any criminal investigation had commenced.

The complainant argued that the exception provided at regulation 12(5)(b) would only apply to reports prepared after the criminal investigation had commenced. He relied upon the Commissioner’s comment in the DN that “the type of information requested in this case, relating to routine health and safety reports, should ordinarily be placed in the public domain as a matter of course, normally through inclusion in a publication scheme” to support his view.

The Tribunal did not accept this argument and commented (at paragraph 6) that “the language of EIR regulation 12 contains no suggestion that the exception in 12(5)(b) should only apply to material created after an investigation has been started. The only test to be applied is whether disclosure would have the undesirable effects set out in paragraph (5)(b). Not only is the language of the regulation therefore clear but it does not in our view lead to an illogical or unworkable outcome, as the Appellant argues. It is obviously not ideal if information has to be withdrawn from publication, once it becomes apparent that a criminal investigation is to take place and that its further dissemination may prejudice a future trial, but that is a better outcome then the alternative for which the Appellant argues. We conclude, therefore that the information was capable of falling within the scope of subparagraph (5)(b) of the regulation and that we should proceed to consider whether it actually did so.”

The Commissioner’s view is that this principle will also apply in relation to s30 FOIA. Accordingly, information that, as at the date of consideration of the request, has at any time been held by a public authority for one of the purposes listed at s30(1)(a) to (c), will engage the exemption at s30 even where the information in question was created prior to the commencement of the investigation.