Draft Statutory Inquiry Report into Lough Neagh Rescue.

The request was refused by Information Commissioner's Office.

Dear Information Commissioner’s Office,

Please can you provide me with the Draft report shared by the Head of Corporate Services of the Charity Commission for Northern Ireland with the ICO.
This was at the ICO’s request, on or about the 21st October 2014. This was in relation to FOI20140503 & FOI20140505 and FS50548810.

The draft report will be titled Statutory Inquiry Report into Lough Neagh Rescue.

Please also provide me with the request letter.

Yours faithfully,

Trevor McKee

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.

For information about what we do with personal data see our [2]privacy
notice.

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

12 October 2018

 

Case Reference Number IRQ0793027

 

Dear Mr McKee

Further to your information request which we received on 10 October; we
are now in a position to respond to this request.

 
We have considered your request under the Freedom of Information Act 2000
(FOIA).
 
Your request
 
In your email you asked us:
 
“Please can you provide me with the Draft report shared by the Head of
Corporate Services of the Charity Commission for Northern Ireland with the
ICO. This was at the ICO?s request, on or about the 21st October 2014.
This was in relation to FOI20140503 & FOI20140505 and FS50548810. The
draft report will be titled Statutory Inquiry Report into Lough Neagh
Rescue. Please also provide me with the request letter.”
 
Our response 
 
Having performed reasonable searches of our records, I can confirm that we
do not hold any information within scope of this request.
 
The FS50 case you quote is no longer recorded on our system in line with
our [1]retention schedule which specifies a 2 year retention period for
FOI complaint casework unless otherwise marked for retention.
 
This concludes our response.
                        
Next steps
 
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 Information Access team
at the address below or email [2][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
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 Customer Contact department, 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 available [3]here.
 
For information about what we do with personal data see our [4]privacy
notice.
 
Yours sincerely,
 
 

Frederick Aspbury
Lead Information Access Officer
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
T. 0330 414 6397 F. 01625 524510  [5]ico.org.uk  [6]twitter.com/iconews
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Dear Information Commissioner’s Office,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Information Commissioner’s Office's handling of my FOI request 'Draft Statutory Inquiry Report into Lough Neagh Rescue.'.

I see you have made a cursory search, but believe the information was disposed of as per your retention schedule.
I believe the information, as it was sent by email, will exist in the caseworkers archived email. If you need any other assistance I can supply the caseworkers name, and the email address from which the information originated.
In addition your retention periods seem very low, can you send me a copy of the schedule, with the information when you manage to locate it. You may treat that request as normal line of business.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/d...

Yours faithfully,

Trevor McKee

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.

For information about what we do with personal data see our [2]privacy
notice.

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

Our newsletter

Details of how to sign up for our monthly e-newsletter can be found at
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Information Commissioner's Office

12 October 2018

 

Case Reference Number RCC0793608

 

Dear Mr McKee

 
Thank you for your correspondence dated 12 September 2018.
 
In response to your request for a copy of our retention schedule, I
included a link in my response to your request. Here it is again:
[1]Retention Schedule. You can also find on here the retention period for
staff emails.
 
This correspondence will now be treated as a request for an internal
review of the response we provided to your recent request for information
under the Freedom of Information Act 2000.
 
We will aim to respond by 9 November 2018 which is 20 working days from
the day after we received your recent correspondence.  This is in
accordance with our internal review procedures which were provided with
our response.

If you have any questions please contact me using the RCC case reference
number above or by replying to this email and leaving the subject field
unchanged.

Yours sincerely
 

Frederick Aspbury
Lead Information Access Officer
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
T. 0330 414 6397 F. 01625 524510  [2]ico.org.uk  [3]twitter.com/iconews
Please consider the environment before printing this email
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Dear Information Commissioner’s Office,

Thank you for the retention schedules.
The information is required as evidence in a complaint to the Charity Commission. It is also required for active proceedings in the Charity Tribunal. The CCNI are maintaining a position that they released a draft report, only at your insistence. That draft report was used to influence the FOI's previously quoted to you.
The draft report morphed into a published report, which was subject to a determination by the NIPSO.
By your retention schedule I presume that it refers to live message boxes, before going into archive which will have a longer (6 year) retention.

Thank you again for your help.

Yours faithfully,

Trevor McKee

Information Commissioner's Office

31 October 2018

 

Case Reference Number RCC0793608

 

Dear Mr McKee

Review of response to information request
 
I write further to your email of 12 October in which you have requested a
review of the handling of your request dealt with under the reference
number IRQ0793027.
 
My name is Danny Langley and I am an Information Access Service Manager. I
have reviewed the way we handled your request for information. I can
confirm that I have had no prior involvement in the handling of this
request.
 
Request and response
 
We received your information request on 10 October. In it you asked for
the following:
 
“Please can you provide me with the Draft report shared by the Head of
Corporate Services of the Charity Commission for Northern Ireland with the
ICO. This was at the ICO?s request, on or about the 21st October 2014.
This was in relation to FOI20140503 & FOI20140505 and FS50548810. The
draft report will be titled Statutory Inquiry Report into Lough Neagh
Rescue. Please also provide me with the request letter.”
 
Fred Aspbury handled your request under the provisions of the Freedom of
Information Act 2000 (FOIA). He provided our response on 12 October. He
advised that we did not hold the information that you are seeking. He
explained that the reference number that you referred to relate to an old
case that was no longer held on our casework management system. He
explained that we hold such information in line with a retention schedule
of which he provided you with a link to.
 
Request for review
 
In your request for review you have asked:
 
“I see you have made a cursory search, but believe the information was
disposed of as per your retention schedule. I believe the information, as
it was sent by email, will exist in the caseworkers archived email. If you
need any other assistance I can supply the caseworkers name, and the email
address from which the information originated. In addition your retention
periods seem very low, can you send me a copy of the schedule, with the
information when you manage to locate it.”
 
It may be helpful to explain that we hold no ‘archived email’ in relation
to the mailboxes of case officers, and that in any event the email account
of the relevant case worker will have also been subject to a retention
schedule. Indeed, at the time the requested information was received at
the ICO the retention schedule for case officer and other external
mailboxes was six months.
 
Nevertheless I have reviewed our response and considered whether we hold
information that falls within the scope of your request.
 
I should first explain that Mr Aspbury was correct to tell you that the
case file FS50548810 is no longer held within our casework management
system.
 
We can infer from the reference number that the case was opened in
July-August 2014. As you know from Mr Aspbury’s email, the ICO works to a
retention and disposal schedule for the information we process. This
determines that case files created to investigate complaints about
responses under the Freedom of Information Act shall be deleted two years
following the date that the last item of information or correspondence was
placed into it, unless there is a business need for the file and its
contents to be preserved.
 
However I can confirm that information within the scope of your request is
held in an archive that we hold relating to appeals raised with the
Information Tribunal. The Decision Notice FS50548810 was subject to an
appeal to the Tribunal under the appeal reference number EA/2015/0050.
This appeal was dismissed by the first-tier tribunal (information rights)
on 19 September 2015.
I can confirm that as part of these proceedings a document entitled ‘draft
report – Statutory Inquiry Report for Lough Neagh Rescue Limited’ was
provided to the Tribunal in a ‘closed bundle’. I consider that this is the
information within the scope of your FOI request and can confirm that we
hold a copy.
 
As a result I partially accept your challenge regarding our response to
your information request and apologise for the oversight.
 
Having confirmed that the report is held I have gone on to consider
whether it can be disclosed to you under the provisions of the FOIA.
 
Information withheld
 
I am sorry to confirm that we cannot disclose the information we hold as
it is exempt pursuant to the provisions of sections 32, 40 and 44 of the
FOIA. I have explained each exemption below and why they apply here.  
 
FOIA section 32
 
Because the case file FS50548810 is no longer held, the report you have
requested is now only held by the ICO by virtue of it having been issued
as part of a closed bundle to the above referenced Tribunal.
 
Sections 32(1)(a) states that:
 
“(1) Information held by a public authority is exempt information if it is
held only by virtue of being contained in—
 
(a) any document filed with, or otherwise placed in the custody of, a
court for the purposes of proceedings in a particular cause or matter”.
 
Further, [1]case law has established that a public authority may still
claim section 32 after the relevant court, inquiry or arbitration
proceedings have concluded. The report is therefore a court record for the
purposes of the FOIA, and exempt from disclosure pursuant to section 32 of
the Act.
 
This exemption is ‘absolute’, which means that no test of whether the
public interest favours disclosure is necessary once it is engaged. Its
rationale is that courts and tribunals regulate access to information
generated in the course of proceedings, and the exemption is intended to
protect court documents.
 
FOIA Section 40
 
Section 40 of the FOIA exempts information in response to a request if it
is personal data relating to an identifiable individual and it satisfies
one of the conditions listed in the legislation.
 
The relevant parts of the legislation are the amendments to the Freedom of
Information Act 2000 as provided by the Data Protection Act 2018.
 
The condition contained in section 40(3A)(a) of the FOIA applies here -
that disclosure would breach one of the data protection principles. The
relevant data protection principle is that which is listed at Article
5(1)(a) of the EU General Data Protection Regulation. This states that:
 
“Personal data shall be processed lawfully, fairly and in a transparent
manner...”
 
We do not consider that disclosing this information into the public domain
by virtue of a response to a FOIA request is necessary or justified in
order to satisfy the 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 subjects at the core of this report. We have therefore taken the
decision that disclosing this information would be unlawful.
 
FOIA section 44
 
Section 44(1)(a) of the FOIA states:

‘(1) Information is exempt information if its disclosure (otherwise than
under this Act) by the public authority holding it -

(a) is prohibited by or under any enactment’

The enactment in question is the Data Protection Act 2018 (DPA) and
specifically Part 5, section 132(1) of that Act. This states that:
 
“A person who is or has been the Commissioner, or a member of the
Commissioner’s staff or an agent of the Commissioner, must not disclose
information which—
 
(a) has been obtained by, or provided to, the Commissioner in the course
of, or for the purposes of, the discharging of the Commissioner’s
functions,
 
(b) relates to an identified or identifiable individual or business, and
 
(c) is not available to the public from other sources at the time of the
disclosure and has not previously been available to the public from other
sources,
 
unless the disclosure is made with lawful authority.” 
 
Section 132(2) of the DPA lists the circumstances in which a disclosure
can be made with lawful authority, however we find that none of them apply
here. The Charity Commission for Northern Ireland had provided this
information to the ICO exclusively for the purposes of our regulatory
function with an expectation of confidence, confirming that it was a draft
document not intended for publication.
 
The Commissioner and her staff risk criminal liability if they disclose
information without lawful authority. The right of access under the FOIA
is not sufficient to override these important factors. As a result the
information is exempt under the FOIA, and withheld from our response. 
 
Finally, I note that your request also seeks ‘the request letter’ which I
believe refers to our outgoing letter to the CCNI, to which the authority
provided the report in response.
 
Such a letter would have been relevant to the original investigation of
whether the public authority had correctly applied the relevant provisions
of the FOIA. It would therefore have constituted part of the case file
FS50548810, which as we have confirmed is no longer held.
 
No copy of such a letter was transferred to the appeal case EA/2015/0050
as it will not have been information required for the purposes of our
opposition to the appeal. I can therefore confirm that no copy of this
letter is held within our records.
 
This concludes our review of your information request. I understand you
will be disappointed with the response to your request but hope our
response is clear. I have provided the details of how you may complain to
the ICO in its regulatory capacity below if this is a route you wish to
pursue.
 
Complaint procedure
 
If you are dissatisfied with the outcome of this review you can make a
formal complaint with the ICO in its capacity as the regulator of the
Freedom of Information Act 2000. Please follow the link below to submit
your complaint:

[2]https://ico.org.uk/concerns/

Yours sincerely
 
 

Danny Langley
Information Access Service Manager
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
T. 0330 414 6784  F. 01625 524510  [3]ico.org.uk  [4]twitter.com/iconews
For information about what we do with personal data see our [5]privacy
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Dear Information Commissioner’s Office,

I have referenced a NIPSO Report which I now believe I am able to share with you. That report directs the complainant in that matter that his issue was a matter for the ICO. The NIPSO Report also makes findings of fact in matters relevant to breaches of information and privacy rights.

The draft report which you now confirm you hold is evidence in a matter that may assist the courts and the Charity Tribunal in particular. The draft report was shared by the CCNI to influence a decision of the ICO in its favour.

I would encourage you to reassess your response, read the NIPSO Report, and the published SI report, You may then see that the draft report was unlawfully shared and is potential evidence of misfeasance.

Thank you for your direction to your complaints service but that avenue would not be appropriate.

Yours faithfully,

Trevor McKee

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.

For information about what we do with personal data see our [2]privacy
notice.

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

Our newsletter

Details of how to sign up for our monthly e-newsletter can be found at
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Dear Information Commissioner’s Office,

Can you advise if you have considered my last message? The information is of vital importance.
As the requested material will also contain my name, is it possible to seek same through a subject access request? In any event I would be obliged for a response.

Yours faithfully,

Trevor McKee

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.

For information about what we do with personal data see our [2]privacy
notice.

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

Our newsletter

Details of how to sign up for our monthly e-newsletter can be found at
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Information Commissioner's Office

13 November 2018

 

Case Reference Number RCC0793608

 

Dear Mr McKee
 
Thank you for your email of 1 November and subsequent chaser of 8
November. You have asked us to ‘reassess [our] response’ to your
information request on the basis of a report by the Northern Ireland
Ombudsman.
 
I am not aware of the Ombudsman report that you refer to. But in any
event, I do not see how its findings would have the effect of lifting the
exemptions in the legislation which I described so that a disclosure could
be made under the Freedom of Information Act. Disclosures which you will
be aware are made ‘to the world at large’.
 
Sections 32 and 44 in particular are not exemptions qualified by a public
interest test. These exemptions are absolute. The information you have
sought is exempt under the Act for the reasons outlined in my email of 31
October.
 
If there have been ‘breaches of information and privacy rights’ as you
describe then the affected party can of course raise a data protection
concern with the ICO’s regulatory arm. This can be done through our
website:
[1]https://ico.org.uk/make-a-complaint/your....
 
The internal review process in relation to your request is now exhausted.
If you are not content that your request or review has been dealt with
correctly you have a right to complain to this office in our capacity as
the statutory complaint handler under the legislation as previously
described.
 
Yours sincerely
 
 

Danny Langley
Information Access Service Manager
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
T. 0330 414 6784  F. 01625 524510  [2]ico.org.uk  [3]twitter.com/iconews
For information about what we do with personal data see our [4]privacy
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