Decision notices

31 Jan 2020, Local government

The complainant requested a variety of information from the London Borough of Waltham Forest (the London Borough), which related to a 2017 request that the London Borough previously responded to. The Commissioner’s decision is that, in respect of questions 2, 3 and 6 of the complainant’s request, the London Borough failed to respond within 20 working days and has therefore breached section 10 of the FOIA.

FOI 10: Complaint upheld

31 Jan 2020, Education

The complainant has requested particular meeting minutes and papers from the Canal & River Trust (‘CRT’).  CRT’s position is that it does not hold the requested information for the purposes of the FOIA. The complainant disputes this.  The Commissioner’s decision is as follows: The information requested in this case does not fall within the definition of information to which CRT has obligations under the FOIA. The Commissioner does not require CRT to take any remedial steps.

FOI 1: Complaint not upheld

31 Jan 2020, Local government

The complainant has requested information from the City of York Council (“the Council”) regarding the professional qualifications of its Flood Risk Management and Conservation Officers. The Council withheld the information under section 40(2) of the FOIA. The Commissioner’s decision is that the Council has correctly applied section 40(2) of the FOIA to withhold the information. The Commissioner does not require any further steps to be taken in respect of this request.

FOI 40(2): Complaint not upheld

31 Jan 2020, Central government

The complainant has requested copies correspondence with the Department for Work and Pensions about a specific subject over a defined period. Her Majesty’s Treasury initially denied holding some of the information and refused the remainder of the request, citing section 12 of the FOIA (cost of compliance exceeds appropriate limit) as its reason for doing so. It subsequently revised its position and applied section 12 to the entirety of the request. The Commissioner’s decision is that the Treasury has reasonably estimated that the cost of complying with the request would exceed the appropriate limit. The Treasury was therefore entitled to rely on section 12 of the FOIA to refuse the request. However, it failed to inform the complainant, within 20 working days, that it was relying on section 12 to refuse both parts of his request and the Commissioner therefore finds that the Treasury breached section 17(5) of the FOIA. The Commissioner does not require any further steps.

FOI 17: Complaint upheld FOI 12: Complaint not upheld

31 Jan 2020, Central government

The complainant submitted a request to the Foreign and Commonwealth Office seeking information about any past and current plans to reclaim Hong Kong as British territory. The FCO explained to the complainant that complying with this request would exceed the cost limit and invited him to submit a refined request. The complainant did so, albeit that he still wished the FCO to provide him with a formal response to his initial request. With regard to the refined request the FCO concluded that it did not hold any information falling within its scope, a conclusion the complainant disputed. In relation to the initial request, the Commissioner has concluded that FCO was entitled to refuse to confirm or deny whether it held any information falling within the scope on the basis of section 12(2) of FOIA because to do so would exceed the appropriate cost limit. However, by failing to provide the complainant with a formal refusal notice stating this it breached section 17(1) of FOIA. In relation to the refined request, the Commissioner has concluded that on the balance of probabilities the FCO does not hold any information falling within the scope of this request.

FOI 17: Complaint upheld FOI 1: Complaint not upheld FOI 12: Complaint not upheld

31 Jan 2020, Central government

The complainant submitted a request to the Foreign and Commonwealth Office (FCO) seeking information about the rendition to Libya, and treatment in Libya, of two individuals. The FCO refused to comply with the request on the basis of sections 14(1) (vexatious) and 14(2) (repeated) of FOIA. The Commissioner has concluded that the request is vexatious and therefore the FCO is entitled to refuse to comply with it by virtue of section 14(1) of FOIA.

FOI 14: Complaint not upheld

31 Jan 2020, Local government

The complainant has requested information about a Housing Infrastructure Fund Bid.  Milton Keynes Council disclosed some information and withheld other information under regulation 12(5)(e) of the EIR. The Commissioner’s decision is that Milton Keynes Council has disclosed all the information it holds in relation to parts 1 and 2 of the request and complied with section 1(1) but that, in relation to part 3 of the request, it has failed to demonstrate that section 43(2) is engaged. The Commissioner requires the public authority to disclose the information in part 3 of the request which it withheld under section 43(2).

FOI 1(1): Complaint not upheld FOI 43(2): Complaint upheld

31 Jan 2020, Other

The complainant has requested information relating to how the Financial Conduct Authority (FCA) and the Financial Ombudsman Service (FOS) have interpreted and implemented the Alternative Dispute Resolution (ADR) regulations. The FCA provided some information captured by the request but withheld other information. The majority of the withheld information was withheld under section 44 – statutory prohibition on disclosure, but some information was also withheld under section 40(2) – personal information and section 31 – law enforcement. During the course of the Commissioner’s investigation the FCA also applied section 42 – legal professional privilege to a small amount of the information that it had originally withheld under section 31. It also withdrew its application of exemptions from a very limited amount of information. The Commissioner also came to the conclusion that the FCA had interpreted one part of the request, part 8, too narrowly. The FCA therefore provided the Commissioner with further information in line with her, broader, interpretation. Although the FCA indicated that the majority of this information could be released, it also cited sections 44, 40 and 31 as a basis for withholding some of that information. The Commissioner’s decision is that the FCA is entitled to rely on the exemptions provided by section 44, 40(2) and 42. It is also entitled to rely on section 31 to withhold the majority of the information to which it has been applied. However section 31 does not apply to all the information. The Commissioner requires the public authority to disclose the information which does not engage section 31. The FCA is also required to disclose the information from which it has withdrawn the application of any exemption and the additional information that falls within the scope of part 8 of the request, apart from that which the Commissioner finds is exempt.

FOI 42: Complaint not upheld FOI 31: Complaint partly upheld FOI 40(2): Complaint not upheld FOI 1: Complaint not upheld FOI 44: Complaint not upheld

31 Jan 2020, Other

The complainant has requested business cases relating to 20 different projects. Network Rail refused to comply with the request on the basis it would be manifestly unreasonable to do so. The Commissioner’s decision is that Network Rail has correctly refused the request under regulation 12(4)(b) and has provided appropriate advice and assistance under regulation 9 of the EIR.

EIR 9: Complaint not upheld EIR 12(4)(b): Complaint not upheld

30 Jan 2020, Local government

The complainant has requested follow on information from Monmouthshire County Council in respect of all data concerning a planning application to build houses in Raglan. Monmouthshire County Council confirmed that the complainant could view the information either via the internet, at one of its hubs or at its premises in County Hall. The Commissioner’s decision is that Monmouthshire County Council has complied with its obligations under regulation 6 of the EIR The Commissioner does not require the public authority to take any steps.

EIR 6(1): Complaint not upheld

30 Jan 2020, Local government

The complainant has asked Oxford City Council for copies of communications and records of contacts between GL Hearn and the Council which relate to the commissioning, production and approval of the content of the Oxford Local Plan. The Commissioner has established that the Council does not hold any information within the scope of the complainant’s request other than an annotated ‘Clarification Note’ which is the subject of the Council’s application of section 42(1) of the FOIA. The Commissioner’s decision is that Oxford City Council has complied with section 1 of the FOIA and also that it has properly applied the exemption to disclosure provided by section 42(1).

FOI 42: Complaint not upheld FOI 1: Complaint not upheld

30 Jan 2020, Local government

The complainant requested correspondence between the legal officer and the planning department at Fylde Council (“the Council”) which related to planning applications at a specific address. The Council withheld the information, stating that it was covered by Legal Professional Privilege (LPP). The Commissioner’s decision is that the Council correctly withheld the information under the exception at regulation 12(5)(b) of the EIR – adversely affect the course of justice – and that the balance of the public interest favours the exception being maintained. The Commissioner does not require the Council to take any steps.

EIR 12(5)(b): Complaint not upheld

30 Jan 2020, Local government

The complainant has requested from Bury Council (“the Council”), information relating to the school’s appeals process. The Council withheld some information under section 40(2) of the FOIA – personal information. The Commissioner’s decision is that the Council is entitled to rely on section 40(2) of the FOIA to withhold the information. The Commissioner does not require the Council to take any steps.

FOI 40(2): Complaint not upheld

30 Jan 2020, Central government

The complainant requested information in relation to the methodology used to calculate the estimated annual yield from a measure on protecting certain taxes in insolvency. The public authority withheld the information held within the scope of the request relying on section 35(1)(a) FOIA. The Commissioner concluded that the public authority was entitled to rely on the exemption at section 35(1)(a) FOIA. 

FOI 35(1)(a): Complaint not upheld

30 Jan 2020, Local government

The complainant has requested information with regards to a rent at an industrial estate. Braintree District Council (the council) refused the request relying on section 14(1) of the FOIA as it considered it to be vexatious. The Commissioner’s decision is that section 14(1) of the FOIA is engaged. The Commissioner has also found that the council breached section 10(1) of the FOIA, as it responded to the request outside the required 20 working days. The Commissioner does not require the council to take any steps.

FOI 14: Complaint not upheld FOI 10: Complaint upheld

30 Jan 2020, Local government

The complainant has requested information from Teignbridge District Council regarding complaints of fraud, intimidation and failure to investigate named staff properly. Teignbridge District Council did not comply with the request, citing section 14(1) (Vexatious requests) of the FOIA. The Commissioner’s decision is that Teignbridge District Council has applied section 14(1) appropriately. However, she considers that it has breached sections 10(1) (Time for compliance) and 17 (Refusal of a request) of the FOIA. The Commissioner does not require Teignbridge District Council to take any steps as a result of this decision.

FOI 17: Complaint upheld FOI 14(1): Complaint not upheld FOI 10(1): Complaint upheld

30 Jan 2020, Central government

The complainant submitted a request to the FCO seeking communications between the Foreign and Commonwealth Office (FCO) in London and the British Embassy in Moscow about the consequences of the Salisbury poisonings. The FCO refused to comply with the request on the basis of section 12(1) of FOIA. The Commissioner is satisfied that the FCO is entitled to rely on section 12(1) to refuse to comply with this request.

FOI 12: Complaint not upheld

30 Jan 2020, Local government

The Council initially refused the request under regulation 12(5)(b), regulation 12(5)(f) and regulation 13 of the EIR, as well as stating that some information was not held. The Council subsequently sought to rely on the exception at regulation 12(4)(b) on the basis that the request was manifestly unreasonable. The Commissioner’s decision is that the Council is entitled to rely on regulation 12(4)(b), and the public interest in maintaining the exception outweighs the public interest in disclosure.

EIR 12(4)(b): Complaint not upheld

29 Jan 2020, Education

The complainant has requested information relating to the 11+ test first used in Warwickshire and Birmingham in September 2015 and September 2016. These tests were written by the Centre for Evaluation (CEM), which was part of Durham University at the time of the request. The complainant also requested information relating to a claim that CEM had asserted to the ICO in Appeal EA/2015/0226 that its 11+ testing is ‘tutor proof’, and the evidence to support this assertion. The University Council of Durham University (Durham University) provided some of the requested information, but has explained that it does not hold information in relation to the request for evidence that its 11+ testing is ‘tutor proof’. Durham University also refused to provide some of the requested information under section 43(2) (commercial interests) of the FOIA . The Commissioner’s decision is that, on the balance of probabilities, Durham University does not hold the information requested in relation to the request for evidence that  its 11+ testing is ‘tutor proof’. The Commissioner has also decided that section 43(2) was correctly applied to the withheld information and the public interest in maintaining the exemption outweighs the public interest in disclosure. The Commissioner does not require any steps to be taken as a result of this decision notice.

FOI 43(2): Complaint not upheld FOI 1: Complaint not upheld

29 Jan 2020, Other

The complainant has requested information relating to Rampion Offshore Windfarm. E.ON UK plc argued that it is not a public authority for the purposes of the EIR. It has therefore refused to respond to this request under the EIR. The Commissioner considers that E.ON UK plc is a public authority for the purposes of the EIR. The Commissioner therefore requires E.ON UK plc to respond to this information request in accordance with its obligations under the EIR.

EIR 5(2): Complaint upheld

29 Jan 2020, Police and criminal justice

The complainant requested information from Sussex Police about an event involving an MP.  Sussex Police has failed to respond to this request. The Commissioner requires Sussex Police to provide the complainant with a response to this request in accordance with its obligations under FOIA. Sussex Police must take these steps within 35 calendar days of the date of this decision notice.

FOI 10: Complaint upheld

29 Jan 2020, Local government

The complainant requested information from Greater Manchester Combined Authority about a computer system. The Commissioner’s decision is that Greater Manchester Combined Authority breached section 17(3) of the FOIA by failing to complete its public interest test considerations within a reasonable timeframe.

FOI 17: Complaint upheld

29 Jan 2020, Local government

The complainant has requested two parts of information from the London Borough of Lambeth (“the Council”) regarding its security incident reports and some information surrounding a previous request he had made. The Council provided some information and stated that it held no further information within the scope of the complainant’s request. During the Commissioner’s investigation, the Council discovered that it did hold more information relating to one part of the request and provided it to the complainant. Therefore, the Commissioner’s decision is as follows: The Council has breached section 1 and section 10 of the FOIA as it failed to provide all the information it held, falling within the scope of the request, within 20 working days. In relation to part 3 of the complainant’s request, any information that the Council may hold would be his own personal data and thus exempt under section 40(1) of the FOIA. As the Council has now provided this to the complainant, the Commissioner does not require any steps to be taken.

FOI 10: Complaint upheld FOI 40: Complaint not upheld FOI 1: Complaint not upheld

29 Jan 2020, Local government

The complainant has requested information held that relates to any consultations that may have taken place between Hastings Borough Council (the council) and East Sussex Fire and Rescue Service (ESFRS) about a particular site licence. The council issued a refusal notice confirming that it was withholding the information requested under regulation 12(5)(e) of the EIR. However, during the course of the Commissioner’s investigation, the council disclosed some information to the complainant. The Commissioner is satisfied that, on the balance of probabilities, the council has now provided all the information that it holds that is relevant to the complainant’s request, and has therefore complied with regulation 5(1) of the EIR. However, it is the Commissioner decision that the council has breached regulation 5(2) of the EIR as it failed to provide the requested information within the statutory time limit. The Commissioner does not require the council to take any steps as a result of this decision notice.

FOI 5: Complaint upheld

29 Jan 2020, Health

The complainant has requested NHS England to disclose all the information it holds relating to the decision to exclude the eMBED Health Consortium and Optum from the Population Health Management IG Support Tool (PHMIGST) work programme. NHS England disclosed the requested information but redacted the personal data of several of its employees and external individuals in accordance with section 40(2) of the FOIA. The Commissioner’s decision is that NHS England is entitled to rely on section 40(2) of the FOIA for some of the withheld information. She has however concluded that section 40(2) is not engaged for the remainder. The Commissioner has also concluded that NHS England breached section 10 of the FOIA in this case. She therefore requires NHS England to disclose the withheld information which is not exempt by virtue of section 40(2).

FOI 10: Complaint upheld FOI 40(2): Complaint partly upheld