Line to take - LTT9 - Issues not raised by complainant

• FOI / EIR: FOI
• Section / Regulation: s16, s50
• Issue: Issues not raised by complainant
• Source: Information Tribunal
• Details Barber / Inland Revenue (9 November 2005)
• Related Lines to Take: n/a
• Related Documents: FS50067001, EA/2005/0004, Awareness Guidance 23
• Contact: PB
• Date: 29/08/2006
• Policy Reference: LTT9
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Complainants cannot be expected to have a detailed grasp of the law. The fact that a complainant has not raised a possible breach of s16 does not mean that the Commissioner should not consider it either in a Decision Notice or in the way he approaches the investigation of a case.

Further Information

In the case of Barber v the Information Commissioner, the Tribunal upheld an appeal against our DN. Mr Barber had a long-running dispute with the Inland Revenue concerning delays in tax refunds associated with the introduction of Self Assessments in the late 1990s. Mr Barber had requested that the Inland Revenue disclose what action it had taken in relation to several examples of what he described as “maladministration” and “failed standards.”

Mr Barber had complained to the Commissioner that he had not been provided with the requested information. The Commissioner concluded that information matching the description given in the request was unlikely to exist.

The Tribunal commented:

“We have not had to make a finding in relation to s16 in this appeal. However, we would observe that a complainant in person should not be expected to be familiar with all the provisions of Part I of FOIA and that just because a complainant does not specify a breach of the duty to provide advice and assistance in his complaint, that should not mean that the Commissioner is under no further obligation to consider the public authority’s duty in this respect. We come to this conclusion because we consider that where an authority has not complied with its duty under s16 this may go to the very nature of the request and that any exercise of discretion by the Commissioner which does not take this into account may be flawed. Moreover the Commissioner has a general duty to promote the following of good practice by public authorities under s47(1) FOIA so as to promote the observance of the requirements of the Act. Again if he does not consider the s.1 6 duty then it could be argued that the Commissioner is in breach of s47, particularly because a Code of Practice has been provided under s45 of the Act to cover this area.” (para. 18)

The Commissioner does not take this to mean generally that in dealing with a complaint it is necessary to consider all possible contraventions of the Act, whether or not specified in the complaint. However, it will generally be appropriate to consider whether it was reasonable to expect a public authority to have provides more advice and assistance and, if had done, so whether this might have had an impact upon how the request was handled.