Applying Exemptions Piecemeal

Dear Driver and Vehicle Licensing Agency,

i refer to:

http://www.whatdotheyknow.com/request/re...

FOIR1768

please provide the DVLA policy for the handling of FOIA requests
and in particular the responses. I request the information /
guidance that relates to the responses you make, the exemption(s)
applied, the manner of the responses.

it appears that, with regard to the above matter, if I successfully
argued that your exemption was incorrectly applied, or reapplied
toward the end of 2010 when the information is likely to be
accessible, you would again refuse my request citing another
exemption.

why do you take this 'two (or more) bites at the cherry approach
and not raise ALL the exemptions upon which you do (or may) rely
when making the original response, particularly given it appears
the additional exemptions are well rehearsed and argued by you.

Yours faithfully,

Philip Swift

To whom it may concern.

I refer to your anonymous response above which should be considered
in relation to:

http://www.whatdotheyknow.com/request/vr...

I believe it obvious that my submission of the 26th January 2010 is
a new Freedom of Information Act request.

With regard to my original request (4th December 2009) you applied
Section 12 (you held the data but providing this would be too
costly). I sought a review of the response and received a reply
which I understood and appreciated, hence my comments to this
effect.

You appear to have taken issue with my request for further
information, the questions I asked, that had not been addressed by
the DVLA. Possibly I should have placed a caveat upon my
understanding and appreciation; ‘as far as your response went’.
However, I have approached this matter in a reasonable, considered
manner. The tone of your reply does not suggest that I am to be
treated in a similar fashion.

I was not aware that the Information Commissioner has already
issued a decision notice regarding a similar request. I would thank
you for this information but fear my appreciation would be used
against me.

You state ‘it is accepted that Section 12 may not be the only
applicable exemption’. Accepted by whom? You now make reference to
further exemptions, that of Section 40 (2) and 31 (1) (a). You
state that it will not be possible to comment on what exemption (if
any) would be applied when your new stand-alone data base was
available toward the end of 2010, until such time as I make the
request. However, I do not accept this to be an accurate response.
I have made my request, you have cited a single exemption (12).

I do not believe you are working in the spirit of the Act. I do not
accept that your behaviour in this instance, your approach to my
application, would be considered good practice. I should not have
to wait months, re-apply only to find that you will refuse my
application (a repeat of the original) on another exemption. Am I
expected to argue one exemption, if necessary via review and ICO
appeal and if successful, find myself faced with another hurdle to
overcome, another exemption?

I have raised the issue with the ICO and have been advised that the
DVLA should not have to behave in this fashion. I should have been
informed of ALL exemptions upon which you intend to rely.

You state the DVLA does not adopt a ‘2 or more bites of the cherry
approach’. How else would you describe the behaviour I have
encountered?

You appear to be of the impression that you have no obligation to
consider whether any other exemptions are applied. This is
contradicted by the Information Commissioner’s Office and I am
concerned by your response. Please confirm that you will seek
advice on this issue and circulate same.

With regard to your ‘prerogative’, I would suggest that this too be
discussed with the ICO as it appears that the DVLA’s process, your
consideration of requests, is currently flawed.

Yours faithfully,

P Swift

Dear FOI FOI,

I note your response:

Driver and Vehicle Licensing Agency
Drivers Customer Support
D11
DVLA
Longview Road
Swansea
SA6 7JL
Telephone
Fax
Mr P Swift
Textphone
[email address]
Email
[email address]
Website
www.dvla.gov.uk
Your Ref
Our Ref
FOIR 1768/09
Date:
1 March 2010
Dear Mr Swift
FOIR Request – Internal Review
I am writing in response to your e-mail of 9 February at 07:17 in
which you request an
independent Internal Review of the handling of your request for
information under the terms
of the Freedom of Information Act 2000 (FOIA). I have been asked to
undertake that review.
Having carefully considered the correspondence between you and the
Agency, I can conclude
that the response sent to you on 21 December 2009 (as well as
subsequent DVLA responses)
was correct in the circumstances. It was not clear that you were
making further (new) FOI
requests in your two e-mails of 26 January since your comments and
questions related to the
original request and I apologise if clarification was necessary.
That said, I believe the
comments and questions were fully addressed in our e-mailed
response of 1 February.
In your original request you asked:
I ask to be provided the registration numbers of all un-recovered
E-Type jaguars
reported stolen between 2000 and the present date.
You were advised that the cost of providing you with the
information you requested would
exceed the appropriate limit of £600 and that, as such, the Agency
was applying section 12 of
the FOI Act.
On 8 January we received your e-mail asking for a review of the
response you had received.
You requested an explanation of the processes involved and an
understanding of why such
costs would be incurred. You also asked whether section 12 would be
the only exemption that
applied to the request.
In reply, on 21 January, DVLA responded in some detail explaining
the work that would be
necessary to extract the required information. Our letter also
advised you that we were in the process of developing a stand-alone
database, which should eventually allow us to provide
the type of information you requested at a much lower cost. Until
then, we have a duty to be
mindful that we are funded by taxpayers money and must impose
limits on our use of these
funds. I do accept that your question about whether any other
exemptions would apply to
your request was overlooked and was not addressed. As such, I
apologise for that oversight
but I will come back to this issue further on.
On 26 January we received two e-mails from you asking questions
relating to our responses
to your original request and on 1 February a full response was sent
to you answering all your
questions in turn.
I will now turn to your two e-mails of 9 February and firstly your
e-mail sent at 07:12. I am
sorry you feel that DVLA appears “to have taken issue with [your]
request for further
information, the questions [you] asked, that had not been addressed
by the DVLA.” You go
on to say that you have approached this matter in a reasonable,
considered manner but you
feel that the “tone of [our] reply does not suggest that [you are]
to be treated in a similar
fashion”. I am afraid that I fail to see where any of DVLA’s
responses have not been
reasonable or considered and I can assure you that all requests for
information are treated
exactly the same. You quoted from our e-mail of 1 February that “it
is accepted that Section
12 may not be the only applicable exemption” and then asked
“Accepted by whom?”. DVLA
accepts that when it employs section 12 FOIA, other exemptions may
also apply but if the
costs limit is reached before the request is responded to then the
other exemptions fall away
at the first stage. Until we are able to determine whether we hold
the information and then
locate, retrieve and extract that information we cannot say whether
exemptions such as
sections 40(2) or 35(1) would apply. In your case, we can only say
for certain that section 12
FOIA would apply. If, and when, we receive the necessary funding to
develop the stand-
alone database mentioned we will give all requests under the FOIA
full consideration at the
time. If the information can be provided within the cost limit it
is then that we would give
consideration to any exemptions that may apply. I note that you
claim to have raised this
issue with the Information Commissioner’s Office where you were
advised that when DVLA
issues a refusal notice we should be advising the enquirer of all
the exemptions which apply.
That is accepted but only in so far as we know what information we
have, within the £600
costs limit, to apply the exemptions to.
In your second e-mail of 9 February at 07:17 you ask what we mean
by “if an individual has
additional information it may then be possible for a link to be
established between that
registration mark and another individual.” If an individual is in
possession of a vehicle
registration mark then it may be possible for them to make a
fee-paying request for a printout
of the keeper details.
To conclude, I confirm that I am content with the way in which your
request for information
has been handled by the Agency.
If you are not content with this Independent Internal Review, you
have the right to complain
directly to the Information Commissioner for a decision; you have
already been provided
with details of the complaints procedure. In any event, the
Information Commissioner can be
contacted at:

Information Comissioners Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Yours sincerely
Unsigned – sent via e-mail
Gary Nicholas
Head of Unit
Drivers Customer Services

I am not content with the response. You appear to be confused on th
e one hand apologising for the response, on th e other justifying
it. I have spoken to the ICO's office before raising this issue. I
have been informed that you are not acting in the spirit of the act
and should advise all exemptions upon which you would rely. You
have not, you have acted 'piecemeal'. Your excuse for this is
unreasonable; you would have known from t he outset that there was
another exemption upon which you would rely, it was not necessary
to undertake the search for information to conclude this. Your
erroneous arguments are a further concern.

I have placed the matter with the ICO.

Yours sincerely,

Philip Swift