Dear Information Commissioner’s Office,
Decision notice FS50654155 (dated 23 Feb 2017) issued by the ICO resulted in a challenge by the DWP.
Please provide the following in relation to the decision and subsequent challenge:
- The original Freedom of Information Request sent to the DWP.
- The complaint sent to the ICO by the maker of the Freedom of information request.
- A copy of the decision notice (FS50654155).
- All correspondence sent to the tribunal by the ICO or DWP.
All correspondence sent between the DWP and ICO prior to or during the tribunal.
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 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.
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copied to us.
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standards and what to expect' (go to our homepage and follow the links for
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also call the number below.
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The Information Commissioner’s Office
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19 February 2019
Case Reference Number IRQ0816225
Dear A James
I can confirm we are now in a position to provide you with a response to
your information request received 25 January via the WhatDoTheyKnow.com
We have dealt with your request in accordance with your ‘right to know’
under section 1(1) of the Freedom of Information Act 2000 (FOIA), which
entitles you to be provided with any information ‘held’ by a public
authority, unless an appropriate exemption applies.
“Decision notice FS50654155 (dated 23 Feb 2017) issued by the ICO resulted
in a challenge by the DWP. Please provide the following in relation to the
decision and subsequent challenge:
* The original Freedom of Information Request sent to the DWP
* The complaint sent to the ICO by the maker of the Freedom of
* A copy of the decision notice (FS50654155)
* All correspondence sent to the tribunal by the ICO or DWP
* All correspondence sent between the DWP and ICO prior to or during the
I can confirm we hold information that falls in the scope of your request.
Please find enclosed a copy of the Decision Notice for FS50654155. This
provides information on the background to the complaint including the
original freedom of information request, the response by the Department
for Work and Pensions (DWP) and our decision on the case.
You can also find a copy of the Consent Order on the appeal case under
reference EA/2017/0054 at the Courts and Tribunals Judiciary website
For ease of reference I have included the link to the document here:
Please note due to the way information is displayed on the
WhatDoTheyKnow.com website links may appear at the bottom of this
Information withheld – Section 40 FOIA
Information regarding the complaint is given in the Decision Notice. We
are withholding the original complaint sent to the ICO as it is the third
party data of the complainant.
Section 40(2) exempts information in response to a request if it is
personal data belonging to an individual other than yourself and it
satisfies one of the conditions listed in the legislation (Amendments to
FOIA 2000 contained in the Data Protection Act 2018). The condition
contained in section 40(3A)(a) applies - that disclosure would breach one
of the data protection principles. The principle is that -
“Personal data shall be processed lawfully, fairly and in a transparent
manner...” (GDPR EU2016, Article 5.1.a).
We do not consider that disclosing this information to you, and
consequently the public, is necessary or justified in order to satisfy
your information request and the requirements of the FOIA. In the
circumstances of this request there is no strong legitimate interest that
would override the prejudice to the rights and freedoms of the data
subject. We have therefore taken the decision that disclosing this
information to you would be unlawful.
Information withheld – Section 32 and 42 FOIA
You have also requested the correspondence sent to the tribunal by the ICO
or DWP, correspondence sent between the DWP and ICO prior to or during the
tribunal. This information has been withheld under sections 32 and 42 of
the FOIA. I have provided further details below.
The correspondence sent to the tribunal by the ICO contains information
required to be served for the purposes of the court proceedings and is
therefore subject to the exemption at 32(1)(a) of the FOIA. Section 32(1)
of the FOIA states in full:
32(1) Information held by a public authority is exempt information if it
is held only by virtue of being contained in –
1. any document filed with, or otherwise placed in the custody of, a
court for the purposes of proceedings in a particular cause or matter,
2. any document served upon, or by, a public authority for the purposes
of proceedings in a particular cause or matter, or
3. any document created by –
(i) a court, or
(ii) a member of the administrative staff of a court,
for the purposes of proceedings in a particular cause or matter.
Section 32 is a ‘class’ based exemption and is ‘absolute’, which means
that if the nature, or class, of the information held falls within the
scope of the exemption it need not be provided in response to a request
under the FOIA. Therefore we do not need to consider whether disclosure of
the information in question would prejudice the functions of the ICO or
other parties to the appeal, nor is it necessary to consider any public
The rationale for this exemption being absolute is that courts and
tribunals regulate access to information generated in the course of
proceedings, and the exemption is intended to protect court documents.
If you are requesting information sent from the DWP to the tribunal you
will need to request this from the DWP.
The correspondence sent between the ICO and DWP prior to and during the
tribunal case has been withheld under Section 42 of the FOIA.
Section 42(1) of FOIA states that:
“Information in respect of which a claim to legal professional privilege
[…] could be maintained in legal proceedings is exempt information.”
As you may be aware legal professional privilege covers communications
between lawyers and their clients for the purpose of obtaining legal
advice and communication and/or documents created by or for lawyers for
the ‘dominant’ (main) purpose of litigation.
This is not an absolute exemption and we must consider whether the public
interest favours withholding or disclosing the information.
Public interest factors in favour of disclosing the information:
* The general public interest inherent in FOI, i.e. the assumption of
disclosure that is associated with the ‘right to know’ contained in
section 1 of the FOIA
* The need for the ICO to be open and transparent about the work that we
do and the nature of correspondence between legal representatives
Public interest factors in favour of maintaining the exemption:
* The general public interest which underpins the principle of legal
privilege, which is that communications between legal advisers, for
the purposes of litigation, are protected
* The need to safeguard openness in all communications between the
Information Commissioner, her in-house legal advisers, and any
external legal representatives they have contact with as part of the
Given the strong inherent public interest in maintaining the principle of
legal professional privilege, we have concluded that the public interest
favours maintaining the exemption and withholding the information.
A small amount of information does not attract the exemptions at sections
32 and 42 of the FOIA. This concerns the administration surrounding the
tribunal case. We have not provided this to you as in isolation it would
not give you information that is meaningful to your area of interest.
This concludes our response to your information request.
Complaint and Review Procedure
If you are dissatisfied with your request for information under FOI 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 Information Access
Team at the address below or e-mail [ICO request email].
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
A copy of our review procedure can be accessed from our website
Lead Information Access Officer
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
T. 0330 414 6200 F. 01625 524510
For information about what we do with personal data see our privacy
notice. Our retention policy can be found here
3. mailto:[ICO request email]
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