Attempts to remove statutory rights concerning FOI and/or DPA

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03 February 2011

Case Reference Number IRQ0372739

Dear Mr Cardin

Request for Information

Thank you for your correspondence received 03 February 2011, entitled
“Freedom of Information request - Attempts to remove statutory rights
concerning FOI and/or DPA”.

Your request is being dealt with in accordance with the Freedom of
Information Act 2000.  We will respond by 03 March 2011 which is 20
working days from the day after we received your request.

Should you wish to respond to this email please be careful not to amend
the information in the ‘subject’ field. This will ensure that the
information is added directly to your case. However, please be aware that
this is an automated process; the information will not be read by a member
of our staff until your case is allocated to a request handler.

Yours sincerely

Andrew Walsh

Lead Internal Compliance Officer

01625 545 363

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.gov.uk

References

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2nd March 2011

Case Reference Number IRQ0372739

Dear Mr Cardin

Further to our acknowledgement dated 3 February 2011 we are now in a
position to respond to your request for information.

On 3 February 2011 you requested the following information:

Since the introduction of both the Freedom Of Information Act and
the Data Protection Act, could you provide a total number for
instances of which you are aware where an English Local Authority
or Council has attempted (by making the matter conditional as part
of a compromise agreement) to inhibit or remove the statutory
rights of the signatory party (employee) and thereby to compel them into
forgoing / reducing / removing their ability to make FOI
and/or DPA requests in the future?

In connection with this area, please provide information which
explains / confirms / refutes whether such an approach by a Local
Authority would in fact remove the statutory rights of the
signatory party (employee)

In response to the first part of your request regarding the total number
of cases under both the Data Protection Act and the Freedom of Information
Act 2000 where English local authority attempted to remove or inhibit the
statutory rights of employees to make a SAR or an FOI request,
unfortunately we are unable to provide you with this information under
section 12 of The Freedom of Information Act, an explanation will follow
below.

Section 12 of the FOIA makes clear that a public authority (such as the
Information CommissionerÂ’s Office) is not obliged to comply with an
FOIA request if the authority estimates that the cost of complying with
the request would exceed the ‘appropriate limit'. The
‘appropriate limit’ for the Information Commissioner’s Office,
as determined in the ‘Freedom of Information and Data Protection
(Appropriate Limit and Fees) Regulations 2004’ is £450. We have
determined that £450 would equate to 18 hours work.

Whilst the information you have requested does sit within our electronic
and paper filing systems, these systems are not set up to easily provide
us with the type of information you have requested. By and large this is
not the sort of information we would need for our own day to day business
purposes.

The details of all the section 50 complaints under the Freedom of
Information Act 2000 and requests for assessment under the Data Protection
Act that we receive (known as ‘cases’) are put onto on our
electronic case management handling system. The correspondence is scanned
onto the system and an electronic record is created for every case, every
requester and every ‘complained about’ organisation.

The system allows us to search for the cases we have dealt with in a
number of different ways, such as by the unique reference number the case
was given, the name and address of the person who contacted us and the
name of any organisation or individual that has been complained about. We
can also search for cases on the basis of the broad nature of the
complaint, but we can only search on a limited number of fixed criteria
which are structured around the main sections of the DPA.

Under the Data Protection Act we searched for the “requests for
assessments” under the nature of complaint “Subject Access
Request” for the sector of “Local Government”. These are the
parameters that we can search for to locate the information you requested.
The search brought back 3912 results. To ascertain the exact nature of the
complaint (failed access due to a clause on a compromise Agreement) we
will have to check the documents manually as there is no other searchable
way to locate this information.

We have also searched for complaints about “general right of
access” under Freedom of Information Act 2000 where a “local
government” organisation was the subject of the complaint. These are
the only attributes that we can search under to locate the requested
information. This search brought back 1457 results.

It is clearly evident from the above that checking the documents will take
above the 18 Hours or £ 450 specified in the fees regulations. However,
if you are able to narrow the scope of your request we may be in a
position to provide the information free of charge, if it will cost us
less than the appropriate limit to do so.  For example, if you can name
a specific authority that you want information about, then we may be able
to conduct further searches and provide the information you seek.  I
should point out that any reformulated request you may wish to make to the
ICO will be treated as a new FOI request, and the 20 working days time
limit will begin again.

You have also requested the following:

In connection with this area, please provide information which
explains / confirms / refutes whether such an approach by a Local
Authority would in fact remove the statutory rights of the
signatory party (employee)

In response to this part of your request we do not hold specific guidance
regarding the issues you raise. However, I have liaised with our Data
Protection policy team who confirmed from memory that we have provided
opinions on a number of cases where complainants raised similar issues
about clauses on compromise agreements. As explained below these cases
will sit on our electronic case management system and it will take us over
18 hours to identify them. The general position, as explained by our
Policy team, is that compliance with a subject access or FOI request can
only be avoided if there is an exemption in the DPA or FOIA that applies.
Apart from that, you must comply even if the applicant has entered into a
contract agreeing not to make any requests.

The Acts set out what is a valid request and what exemptions can be
invoked and that is what the ICO is concerned with. If a valid exemption
can be claimed then compliance is not necessary but any reason for non
compliance must be related to a provision within the relevant Act.

As a separate issue the data controller/public authority may argue that in
making the request the requester committed an actionable breach of
contract and demand some form of recompense, but that is a matter for the
parties/courts, not the ICO.

I hope you find the above information is of assistance to you.

If you are dissatisfied with the response you have received and wish to
request a review of our decision or make a complaint about how your
request has been handled you should write to the Internal Compliance Team
at the address below or e-mail [2][email address]

Your request for internal review should be submitted to us within 40
working days of receipt by you of this response. Any such request
received after this time will only be considered at the discretion of the
Commissioner.

If having exhausted the review process you are not content that your
request or review has been dealt with correctly, you have a further right
of appeal to this office in our capacity as the statutory complaint
handler under the legislation.  To make such an application, please
write to the Case Reception Team, at the address below or visit the
‘Complaints’ section of our website to make a Freedom of
Information Act or Environmental Information Regulations complaint online.

 

A copy of our review procedure is attached.

Yours sincerely,

Iman Elmehdawy

Lead Internal Compliance Officer

Information CommissionerÂ’s Office

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.gov.uk

References

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1. file:///tmp/rad63312_files/filelist.xml
2. mailto:[email address]

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14th April 2011

Case Reference Number IRQ0379628

Dear Mr Cardin

Thank you for your reply. We brought your comments to the attention of the
relevant department who has noted them.

For your information, an internal review would only consider the handling
of your request. Regarding the issue you raise, the data subject who has
been denied access to his personal data or to information under the
Freedom of Information Act would probably approach us complaining about
the organisation that has done this. In this case, the issue will be
administrated as “complaint” and a submitted about party will be
added.

I hope the above clarifies the situation

Yours sincerely

Iman Elmehdawy

Lead Internal Compliance Officer

show quoted sections

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.gov.uk

References

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1. file:///tmp/rad4262D_files/filelist.xml