Section 17(6) - no response to information requests

Roedd y cais yn rhannol lwyddiannus.

Dear Information Commissioner’s Office,

I am interested in information you hold concerning public authorities' reliance on section 17(6) FOIA not to respond to information requests:

"(5) A public authority which, in relation to any request for information, is relying on a claim that section 12 or 14 applies must, within the time for complying with section 1(1), give the applicant a notice stating that fact.

(6) Subsection (5) does not apply where—

(a) the public authority is relying on a claim that section 14 applies,

(b) the authority has given the applicant a notice, in relation to a previous request for information, stating that it is relying on such a claim, and

(c) it would in all the circumstances be unreasonable to expect the authority to serve a further notice under subsection (5) in relation to the current request."

http://www.legislation.gov.uk/ukpga/2000...

1. How many complainants contacted you during 2016/17 with section 17(6) FOIA concerns?

2. How many complaints did you receive during 2016/17 concerning a public authority's right not to issue a refusal notice under section 17(6) FOIA?

3. How many times during 2016/17 did public authorites inform you of their use of section 17(6) FOIA?

4. Where a public authority has not issued a refusal notice under section 17(6) and where you are contacted by the requester concerned, what information is routinely provided to the requester in response when you have ascertained that section 17(6) FOIA was engaged? If you use standard wording or a standard letter to inform complainants of their situation, please provide me with a copy.

From your guidance:

"23. The ICO will usually only consider it unreasonable to issue a further notice when an authority has previously warned the requester that it will not respond to any further vexatious requests on the same or similar topics."

https://ico.org.uk/media/for-organisatio...

5. Can you confirm this means that a public authority need never respond to a request from a complainant in circumstances where the public authority has engaged section 14 in respect of an earlier similar request from the same complainant unless and until the wrongly applied section 14 exemption is 'upheld' on appeal by the Commissioner?

6. Please provide any guidance you have to assist staff to deal with issues surrounding section 17(6) FOIA.

Yours faithfully,

J Roberts

AccessICOinformation, Information Commissioner’s Office

Thank you for contacting the Information Commissioner’s Office. We confirm
that we have received your correspondence.

 

If you have made a request for information held by the ICO we will contact
you as soon as possible if we need any further information to enable us to
answer your request. If we don't need any further information we will
respond to you within our published, and statutory, service levels. For
more information please visit [1]http://ico.org.uk/about_us/how_we_comply

 

If you have raised a new information rights concern - we aim to send you
an initial response and case reference number within 30 days.

 

If you are concerned about the way an organisation is handling your
personal information, we will not usually look into it unless you have
raised it with the organisation first. For more information please see our
webpage ‘raising a concern with an organisation’ (go to our homepage and
follow the link ‘for the public’). You can also call the number below.

 

If you have requested advice - we aim to respond within 14 days.

 

If your correspondence relates to an existing case - we will add it to
your case and consider it on allocation to a case officer.

 

Copied correspondence - we do not respond to correspondence that has been
copied to us.

 

For more information about our services, please see our webpage ‘Service
standards and what to expect' (go to our homepage and follow the links for
‘Report a concern’ and ‘Service standards and what to expect'). You can
also call the number below.

 

If there is anything you would like to discuss with us, please call our
helpline on 0303 123 1113.

 

Yours sincerely

 

The Information Commissioner’s Office

 

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Information Commissioner’s Office

27 November 2017

 

Case Reference Number IRQ0710610

 

Dear J Roberts

Information request

I write in response to your email of 12 November 2017 in which you
submitted a request for information to the Information Commissioner’s
Office (ICO). Your request has been dealt with in accordance with the
Freedom of Information Act 2000 (FOIA).
 
Your request
 
I can confirm we hold some information that falls in the scope of your
request. I have dealt with your requests in turn below.
 
“Dear Information Commissioner’s Office, I am interested in information
you hold concerning public authorities' reliance on section 17(6) FOIA not
to respond to information requests: "(5) A public authority which, in
relation to any request for information, is relying on a claim that
section 12 or 14 applies must, within the time for complying with section
1(1), give the applicant a notice stating that fact. (6) Subsection (5)
does not apply where: (a) the public authority is relying on a claim that
section 14 applies, (b) the authority has given the applicant a notice, in
relation to a previous request for information, stating that it is relying
on such a claim, and (c) it would in all the circumstances be unreasonable
to expect the authority to serve a further notice under subsection (5) in
relation to the current request."
[1]http://www.legislation.gov.uk/ukpga/2000...
 

 1. “How many complainants contacted you during 2016/17 with section 17(6)
FOIA concerns?”

 2. “How many complaints did you receive during 2016/17 concerning a
public authority's right not to issue a refusal notice under section
17(6) FOIA?”

 
In response to parts one and two of your request, I can confirm we will
hold information within the scope of your request however we are
unfortunately unable to provide you with the information you have
requested as to do so will exceed the cost limit at section 12 of the
FOIA.
 
You may be aware section 12 of the FOIA makes clear that a public
authority (such as the ICO) is not obliged to comply with a FOIA request
if the authority estimates that the cost of complying with the request
would exceed the ‘appropriate limit'. The ‘appropriate limit’ for the ICO,
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.
 
The information you have requested is likely to sit within our electronic
case management system, which we largely use to track and progress
individual cases. However, this system is not set up to easily provide us
with the type of information you have requested.  Generally speaking this
is not the sort of information we would need for our own day to day
business purposes.

The system allows us to search for the cases we have dealt with in a
number of different ways, such as by unique reference number the case was
given, the name of any organisation that complaints have been raised about
or the case outcome. We can also search for cases on the basis of the
broad nature of the matter reported to us, (i.e the ‘FOI technical breach’
category), but we can only search on a limited number of fixed criteria
which are structured around the main sections of the FOIA. The system does
not have a ‘FOI technical breach’ category for complaints we receive that
relate specifically to the application of 17(6) by public authorities.
Complaints about the application of 17(6) could potentially be recorded
under the FOI technical breach categories ‘s14 – vexatious/repeated
requests’, ‘s17 - refusal of request’ or even ‘s10 – time for compliance’
(for instance, if complainant isn’t aware 17(6) has been applied and
brought the complaint to us as the PA hasn’t responded within the relevant
time limits).

Therefore, the only way we could identify the information you have
requested would be to manually review the details and correspondence we
hold on each FOI complaint with any of the ‘FOI technical breach’
categories specified above in order to identify whether the complaint
concerned the application of 17(6).

For the 2016/17 financial year, this would involve manually reviewing the
details and correspondence on over 1000 cases. We would estimate that it
would take a minimum of 3 minutes per case, with some cases likely to take
much longer, to undertake these manual checks. Therefore to carry out
these searches for the 2016/17 financial year would take at least 50
hours, which is well in excess of the section 12 FOIA cost limit.
 
I have given some consideration as to how you may be able to narrow the
scope of your request to bring this within the cost limit. For instance,
you may wish to identify a significantly narrower timeframe, or a
particular organisation you are interested in.

You may find it helpful to review the decision notices published on our
website to give you an indication as to how many have considered section
17(6): [2]https://search.ico.org.uk/ico/search/dec...

You can filter these decision notices by section, or alternatively, you
could perform a keyword search.
 
 

 3. “How many times during 2016/17 did public authorites inform you of
their use of section 17(6) FOIA?”

 
There is no obligation for public authorities to inform us each time they
apply section 17(6) to a request. We would only hold this information in
relation to FOI complaints that have been raised with us, and the public
authority (PA) in question has informed us of their application of 17(6).
Therefore, to provide you with the information you have requested will
exceed the cost limit at section 12 of the FOIA for the same reasons as
explained above.
 
 

 4. “Where a public authority has not issued a refusal notice under
section 17(6) and where you are contacted by the requester concerned,
what information is routinely provided to the requester in response
when you have ascertained that section 17(6) FOIA was engaged? If you
use standard wording or a standard letter to inform complainants of
their situation, please provide me with a copy.”

 
Generally, if we have received a complaint about not receiving a response
from a PA, we will write to the PA in question and remind it of its
responsibilities to comply with the legislation. If the PA subsequently
informs us that it hasn’t replied because it has applied 17(6) we would
usually explain this to the complainant so that they then have the
opportunity to submit a complaint to us about this issue. We do not hold a
standard letter or wording for this scenario.
 
 

 5. “From your guidance: "23. The ICO will usually only consider it
unreasonable to issue a further notice when an authority has
previously warned the requester that it will not respond to any
further vexatious requests on the same or similar topics."
[3]https://ico.org.uk/media/for-organisatio...

Can you confirm this means that a public authority need never respond to a
request from a complainant in circumstances where the public authority has
engaged section 14 in respect of an earlier similar request from the same
complainant unless and until the wrongly applied section 14 exemption is
'upheld' on appeal by the Commissioner?”
 
This appears to be an enquiry about the legislation we oversee rather than
a request for information we hold. However, there is nothing further I can
add to the guidance on this point. In the first instance, it is for the PA
to decide whether they are entitled to rely on the provisions of section
17(6); and if a complainant feels 17(6) has been applied incorrectly they
have the right to make a complaint to the Commissioner.
 
 

 6. Please provide any guidance you have to assist staff to deal with
issues surrounding section 17(6) FOIA.”

 
The guidance we hold in relation to the application of section 17(6) can
be found on our website and is therefore is exempt from disclosure under
section 21 of the FOIA as it is reasonably accessible to you by other
means. However, for you convenience, I have provided links to the relevant
guidance below:

[4]https://ico.org.uk/media/for-organisatio...

[5]https://ico.org.uk/media/for-organisatio...

We also hold a list of several Information Tribunal appeals where the
application of section 17(6) has been raised as an issue and been
considered by the Tribunal. Although we would not consider this to be
'guidance', they may be of interest to you and as a matter of advice and
assistance I have provided links to the listed appeals below, which are
available on the Information Tribunals website:

[6]http://informationrights.decisions.tribu...

[7]http://informationrights.decisions.tribu...

[8]http://informationrights.decisions.tribu...

[9]http://informationrights.decisions.tribu...
 
This concludes our response to your request. I hope the information
provided is helpful.

Review Procedure

If you are not satisfied that your request for information has been dealt
with correctly, please write to the Information Access Team at the address
below, reply directly to this email (with the reference number contained
within the square brackets left intact), or email us at
[10][ICO request email], quoting the reference number
IRQ0710610.

Your request for a 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.

Ultimately if you are not satisfied that your request for information 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
relevant legislation.  To make such an application, please write to our
Customer Contact Team at the address below, or visit the ‘Report a
Concern’ section of our website.
 
A copy of our review procedure is available here
[11]https://ico.org.uk/media/about-the-ico/p...
 
Yours sincerely

Ian Goddard
Lead Information Access Officer
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
T. 01625 545823  F. 01625 524510  [12]ico.org.uk  [13]twitter.com/iconews
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The ICO's mission is to uphold information rights in the public interest.
To find out more about our work please visit our website, or subscribe to
our e-newsletter at ico.org.uk/newsletter.

If you are not the intended recipient of this email (and any attachment),
please inform the sender by return email and destroy all copies without
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If you'd like us to communicate with you in a particular way please do let
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References

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1. http://www.legislation.gov.uk/ukpga/2000...
2. https://search.ico.org.uk/ico/search/dec...
3. https://ico.org.uk/media/for-organisatio...
4. https://ico.org.uk/media/for-organisatio...
5. https://ico.org.uk/media/for-organisatio...
6. http://informationrights.decisions.tribu...
7. http://informationrights.decisions.tribu...
8. http://informationrights.decisions.tribu...
9. http://informationrights.decisions.tribu...
10. mailto:[ICO request email]
11. https://ico.org.uk/media/about-the-ico/p...
12. http://ico.org.uk/
13. https://twitter.com/iconews

Gadawodd J Roberts anodiad ()

I am satisfied with this response. Although I didn't get the specific information I requested, a clear explanation was provided as to why I couldn't get it. Helpful information was also provided on how I could refine my request.

The four cases linked to make interesting reading. In each case the Commissioner backed the use of section 17(6) by the authority. Where this section is invoked, appellants are placed in a tight spot. In one case:

"The appellant provided witness statements from an external auditor and a councillor from a neighbouring council to the effect that the Council had a history of concealing wrongdoing".

Despite this, the Tribunal:

'accept the Commissioner's contention that it is not within our ambit or the scope of this appeal to investigate these concerns. The difficulty for the Appellant is that despite such as his concerns are, they do not demonstrate an error on the part of the Commissioner in his DN" which is the subject matter of this appeal. '

http://informationrights.decisions.tribu...

ICO failings are highlighted in another case. The LAA said it had made an assessment and the ICO simply accepted that it had:

'40. In this case, the LAA proffered no evidence that it had undertaken any form of assessment. The ICO made no attempt to establish whether the LAA had made any assessment. It was therefore left to the Tribunal to infer whether the LAA had correctly used section 17(6).

45. Our view is that it is completely lawful, reasonable and proportionate for the LAA to be required to demonstrate that it applied its mind to the actual substance of this request before jumping to the section 17 (6) “block”. '

http://informationrights.decisions.tribu...

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