
CWAN 013/ drafting DN steps
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ICON > Policy Delivery knowledgebase > CWAN 013/ drafting DN steps
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FoI or EIR
Section/Regulation
Issue
FOI
s50
Drafting DN steps
EIR
reg 18
Summary:
Avoid any steps ordering a PA to disclose or refuse (or just to disclose) “the requested information”. Instead, DNs should order a
PA to:
• disclose (or refuse) identified information, or
• issue a fresh response under FOIA or the EIR
Further Information:
We need to draft DN steps very carefully to enable clarity over whether the PA has complied with the DN, and allow us to issue a
second DN in appropriate cases. In particular, we need to avoid the problem in the Charman case – in other words, we need to
ensure that a PA has technically complied with the DN once it provides a response which, on its face, is permitted under the
legislation. If so, we can deal with any complaints about new elements of that response as a new s50 case. See the policy
summary of Charman for background information.
In particular, the Charman problem arises if we order a PA to take steps in relation to “the requested information” (or
information otherwise defined by reference to the wording of the request), but we do not yet know whether the PA has correctly
identified all information falling within the scope of the request. This means that we cannot be sure whether the step has been
taken for all the requested information. Any later dispute about the scope of request, or held/not held, would have to be a DN
compliance investigation rather than a new s50 case. This interferes with our internal casework procedures and undermines the
parties’ rights of appeal to the Tribunal.
Instead, steps need to identify the relevant information without referring back to the request itself. DNs should either clearly
describe or list the information (eg in an annex), identify it by reference to the PA’s actions (eg the information refused under
s42, the information the PA identified as falling within the scope of the request), or otherwise order a response without referring
to “the requested information”.
The table below suggests appropriate wording for steps in common types of DNs. This provides a starting point, but case officers
should always consider how best to tailor this wording to the individual circumstances of each case.
Type of DN
Steps
Non-response
• issue a response under FOIA or the EIR (pick one regime if obvious which applies)
Inadequate response
• issue a fresh response under FOIA or the EIR (pick one regime if obvious which
applies)
Wrong regime
• issue a response under FOIA / the EIR
Held /not held - inadequate
We should not generally use a DN in these circumstances. If a PA needs to conduct further
search
searches for information, and a formal step is necessary to progress the case, we should
use an IN instead. See also LTT193.
Rejecting procedural
• issue a fresh response under FOIA / the EIR without relying on s12 / s14 /
exemptions
regulation 12(4)(b) / regulation 12(4)(c) (delete as appropriate)
• issue a fresh response under the EIR without relying on regulation 12(4)(b),
unless engaged on the basis that the costs of compliance would be manifestly
unreasonable (if rejecting EIR manifestly unreasonable arguments which are focussed
purely on value / purpose of request, but we consider it would be unfair on the PA to
prevent them from considering more objective costs arguments)
s12 upheld – provide advice
• provide advice and assistance to enable the complainant to submit a refined
and assistance
request within the cost limit
This step can only be included if we have established that the request can actually be
refined. And in many cases this can be done as part of the investigation rather than in a
DN. Only consider a DN if absolutely necessary to progress the case.
Rejecting NCND
• confirm or deny whether information falling within the scope of the request
is held, and disclose or refuse any information identified
Fully investigated – ordering
• disclose specified information (eg listed in annex), or
disclosure
• disclose the information withheld under sXX, or
• disclose the requested information (only if satisfied that the PA has identified all
relevant information)
Note that in fully investigated cases we should generally ensure that the scope of the
request is clearly understood and the PA has identified all relevant information. In other
words that we are satisfied that on a balance of probabilities nothing further is held. In
these cases it may be appropriate to simply order disclosure of the requested information.
Source of Casework Advice Note
Policy Delivery
Details
Related Casework Advice Notes
LTT187, LTT189, LTT190, LTT192, LTT193
Related Documents
Tribunal summary: Charman v IC & ODA (EA/2011/0210, 27 April 2012)
Contact: LS
Date: 14/06/2013
Reference number: CWAN 013
http://intranet.child.indigo.local/FOIKB/Pages/CWAN-013-drafting-DN-steps.aspx
21/04/2015
CWAN 013/ drafting DN steps
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• Information Commissioner's Office intranet
http://intranet.child.indigo.local/FOIKB/Pages/CWAN-013-drafting-DN-steps.aspx
21/04/2015