PARFs stored outside casework management system

Mr Cross made this Freedom of Information request to Information Commissioner's Office

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was partially successful.

Dear Information Commissioner’s Office,
In reference to a recent request (your ref: IRQ0468381) you wrote:

"However, we have been able to locate approximately 230 PARFs stored separately from our casework management system. If you wished to confine your request to those PARFs, for example, we could also consider a refined request limited in scope to these particular PARFs."

http://www.whatdotheyknow.com/request/pa...

Please could you provide the approx. 230 PARFs you have been able to locate.

Yours faithfully,

Mr Cross

Information Commissioner's Office

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13 November 2012

Case Reference Number IRQ0472666

Dear Mr Cross

Request for Information
 
Thank you for your correspondence dated 12 November 2012.
 
Your request is being dealt with in accordance with the Freedom of
Information Act 2000.  We will respond promptly, and no later than 10
December 2012 which is 20 working days from the day after we received your
request.
 
Should you wish to reply 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
 
Steven Dickinson                 Lead Information Governance Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.
 

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

Information Commissioner's Office

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10 December 2012

Case Reference Number IRQ0472666

Dear Mr Cross

 
Further to my last email, we are now in a position to provide our
substantive response to your request. This has been dealt with under the
provisions of the Freedom of Information Act 2000 (FOIA). You requested
copies of the (approximately 230) PARFs we have been able to locate, which
are stored separately to our casework management system.
 
Information disclosed
 
Due to limitations on the size of attachments, we will send the PARF
documents in batches. These documents have been scanned ‘back-to-back’ so
where the last page of any given PARF document is blank, this will show as
a blank page in the associated scan. This is not information which has
been withheld, it is simply an unavoidable outcome of the scanning process
used.
 
Secondly, there are fewer than 230 PARF documents in the disclosure. This
is partly because, on closer inspection, it was found that some PARFs had
been saved in more than one location and some duplication had thus
occurred. The initial estimate of approximately 230 documents was based on
a count of the total number of relevant files found in each location
searched, before their content was examined. We have removed obvious
duplicates where they have come to light. (Some PARFs have also been
withheld in their entirety).
 
Information withheld
 
Some information has been withheld on the grounds that it is exempt from
disclosure under one or other of the exemptions applied below. We have
tried to group the batches for disclosure so that it should be apparent
what information has been exempted, and why. Where possible, redactions
have attempted to preserve the sense of the policy advice being sought,
within the information to be disclosed.
 
Section 40
 
Some of the withheld information is personal data of third parties, mostly
it identifies individuals associated with the relevant case, either people
who have brought complaints or enquiries to us in our role as regulator,
people who work for the complained-about organisation, or other
identifiable individuals associated with the specific matter. These
parties are referred to as ‘data subjects’.
 
This personal data has been withheld under the provisions of section 40(2)
and 40(3)(a)(i) of the Freedom of Information Act 2000 (FOIA), which
require a public authority to withhold information, when the information
requested is personal data relating to someone other than the requestor,
and where its disclosure would contravene one of the data protection
principles.
 
We have therefore considered whether disclosure of this information would
be fair under the first data protection principle. We have concluded that
it would not be fair to disclose this information; this is with particular
regard to the expectations of the data subject. People who bring
complaints to us, make enquiries to us, or who respond to our
investigations, will have a reasonable expectation that the ICO will keep
their personal data safe. Disclosure would therefore be unfair and would
contravene the first data protection principle. This section of the Act
states:-
 
Section 40  
 
“(2)   Any information to which a request for information relates is also
exempt information if
 

 1. it constitutes personal data which do not fall within subsection (1),
and
 2. either the first or the second condition below is satisfied.

 
(3)  The first condition is –
 

 1. in a case where the information falls within any of paragraphs (a)  to
(d) of the definition of “data” in section 1(1) of the Data Protection
Act 1998, that the disclosure of the information to a member of the
public otherwise than under this Act would contravene –

 

 1. any of the data protection principles …”

 
Section 36
 
It is the opinion of the Information Commissioner, who is the ICO’s
qualified person in respect of section 36 of FOIA, that disclosure of one
PARF we hold would inhibit the free and frank exchange of views for the
purposes of deliberation, and therefore that the information is exempt
from disclosure under the provisions of section 36(2)(b)(ii)of FOIA.
Section 36(2) provides that –
 
“Information to which this section applies is exempt information if, in
the reasonable opinion of a qualified person, disclosure of the
information under this Act- 
 
b) would, or would be likely to, inhibit-
 

 1. the free and frank provision of advice, or

 

 2. the free and frank exchange of views for the purposes of deliberation,
or

 
c) would otherwise prejudice, or would be likely otherwise to prejudice,
the effective conduct of public affairs.
 
It is his opinion that release of this information would frustrate
co-operation in similar cases in future. The ICO needs some safe space for
development of its approaches to matters on which it is consulted. Free
and frank exchange of views is necessary and a safe space is required in
order to conduct these. He has given his opinion that in this case, the
balance of public interest favours non-disclosure. 
 
The exemption at section 36 of FOIA is not absolute, and whether the
information should be disclosed depends on the balance of the public
interest. In this case, we consider there is public interest in the ICO
being as transparent as possible about what we do. Balancing this, the
public interest in favour of withholding the information is that it is
important that the ICO has a ‘safe space’ in which to formulate policy
advice, particularly on live or important issues. In this case the advice
request describes enquiries received from external parties with a close
interest in a matter of some significance, and discusses some specifics in
relation to sensitive personal data. We have concluded that the balance of
the public interest favours the withholding of this PARF.
 
You should also understand that the advice given in the response section
of the PARF was given by a member of the ICO’s legal team and the PARF is
legally privileged. The PARF is also withheld under the provisions of
section 42 of FOIA, further details of the application of that exemption
can be found later in this notice.
 
Section 31
 
Some information is being withheld under the exemption at sections 31(g)
and 31(2)(a) and (c) of the FOIA. After careful consideration, we have
come to the view that some of the requested information contained in the
PARFs should be withheld under this exemption. In some cases, the PARF
relates to a case which is still open, ie under investigation or where
proceedings are not yet concluded. In others, the case is closed, but the
advice remains ‘live’.
 
The exemption at section 31(1)(g) of the FOIA refers to circumstances
where the disclosure of information “would, or would be likely to,
prejudice – … the exercise by any public authority of its functions for
any of the purposes specified in subsection (2).” 
 
The purposes referred to in sections 31(2)(a) and (c) are –
 
“(a) the purpose of ascertaining whether any person has failed to comply
with the law” and
 “(c) the purpose of ascertaining whether circumstances which would
justify regulatory action in pursuance of any enactment exist or may arise
…”    
 
Clearly, these purposes apply when the Information Commissioner is
considering whether or not one of the bodies we regulate has complied with
the requirements of the legislation, or whether its proposed actions will
comply with the requirements of the legislation. The prejudice in the open
cases would be likely to occur because disclosure could prematurely reveal
the ICO’s position in a matter which is not yet settled, or create areas
of dispute and challenge in circumstances where our position has not
publicly been set out. Prejudice could also occur if disclosure were to
reveal aspects of submissions given to the ICO in confidence, ie either by
complainants, public authorities, data controllers or third parties.
 
However, this exemption is not absolute. When considering whether to apply
it in response to a request for information, there is a ‘public interest
test’. That is, we must consider whether the public interest favours
withholding or disclosing the information.   
 
In this case the public interest factors in disclosing the information are

 

* increased transparency in the way in which the ICO conducts its
investigations and obtains advice internally.

 
The factors in withholding the information are –
 

* the public interest in maintaining data controllers’ and public
authorities’ trust and confidence that their dealings with the ICO
will be afforded an appropriate level of confidentiality. This is
particularly the case while an investigation into a complaint is
active, but in some cases the ongoing requirement for confidentiality
will remain after the case has been concluded;
* the public interest in data controllers and public authorities being
open and honest in their correspondence with the ICO about the way
they have applied the legislation (which may be the subject of a
complaint to the ICO), without fear that their comments will be made
public prematurely or, as appropriate, at all;
* the public interest in maintaining the ICO’s ability to conduct its
investigation into complaints, as it thinks fit, following the
statutory scheme for handling complaints as laid down in the
legislation we regulate.
* the public interest in the free and frank exchange of views in order
to provide guidance as to best practice.

 
Having considered all of these factors we have taken the decision that the
public interest in withholding the information outweighs the public
interest in disclosing it.
 
Section 42
 
Some of the information has been withheld because it is privileged
information. The advice has been provided by ICO lawyers and attracts
legal advice privilege. The information contained in that advice has not
been shared more widely, so it cannot be said that it has lost its
confidential nature, hence it remains privileged.
 
The exemption at section 42 is a qualified exemption, therefore we
must consider whether the public interest in maintaining the exemption
outweighs the public interest in disclosure.
 
The general public interest inherent in maintaining this exemption will
always be strong due to the importance of the principle behind legal
professional privilege: safeguarding openness in all communications
between client and lawyer to ensure access to full and frank legal advice,
which in turn is fundamental to the administration of justice. At least
equally strong countervailing public interest is considered necessary if
this privilege is to be overturned.
 
In the circumstances, aside from the general principles of openness and
transparency, there is no clear reason why disclosure would be in the
public interest. The advice remains current, and there are no particular
circumstances which suggest that disclosure would be in the public
interest, ie the advice does not relate to matters involving a large
numbers of people, or large amounts of money. Nor is there any suggestion
that the advice has not been acted upon, or has in some way been
misrepresented so that there would be public interest in examining the
advice given in light of subsequent actions by the ICO.
 
We have therefore taken the decision that the public interest in
withholding the information outweighs the public interest in disclosing
it.
 
Section 44
 
Some information has been withheld under the provisions of Section 44 of
the FOIA which places prohibitions on disclosure. 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 1998 (DPA) and
specifically Section 59 of the DPA. Section 59 states that neither the
Commissioner nor his staff shall disclose;
 
“any information which :
 

 1. has been obtained by, or furnished to, the Commissioner under or for
the purposes of the information Acts.
 2. relates to an identified or identifiable individual business, and
 3. is not at the time of disclosure, and has not been available to the
public from other sources,

 
unless the disclosure is made with lawful authority.”
 
This prevents us from disclosing the information which has been collected
in the course of our investigations unless we have lawful authority to do
so. Some of the PARFs contain information which was provided to us by the
parties in a case.
 
We do not have lawful authority on the basis that this information was
provided to us in confidence. The information we have withheld relates to
the investigation of breaches of the legislation we regulate (including
security breaches), or to information received by us to enable us to
fulfil our role in the promotion of good practice. It contains specific
details about the measures taken or contemplated by the bodies we
regulate. It also includes information about the nature of the personal
data involved in any breach, or about information which has been lawfully
withheld.
It is important to understand that there is no legal obligation on data
controllers to report breaches of security which result in loss, release
or corruption of personal data, however the Commissioner believes that
serious breaches should be brought to the attention of his Office. If we
were to release all the information which we receive from data controllers
about a security breach, this is likely to deter data controllers from
reporting such matters to us in future.
 
Similarly, if we were to release information where a data controller or
public authority has approached us for advice or guidance about matters of
concern, this is also likely to deter these bodies from approaching us for
advice, and could therefore result in poorer levels of compliance with the
legislation. Therefore we do not believe it would be necessary, in the
public interest, to release the information.
Where possible, any withheld information has been redacted from the
documents so that the remainder of the document can be disclosed. This has
been done where this will disclose information which may be of value, for
example in showing the ICO’s involvement in issues, and the development of
its policy thinking. In some cases, however, the redaction of withheld
information leaves nothing of any value, so the entire document has been
withheld.
 
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 Governance
Department at the address below or e-mail
[1][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 First Contact 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 available [2]here.
 
Yours sincerely

Steven Dickinson                 Lead Information Governance Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.
 
 

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

Visible links
1. mailto:[email address]
2. http://www.ico.gov.uk/about_us/~/media/d...

Information Commissioner's Office

2 Attachments

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10th December 2012

Case Reference Number IRQ0472666

Dear Mr Cross

Disclosure 
 
PARF 1 of 9
PARF 2 of 9

Steven Dickinson                 Lead Information Governance Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.

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

Information Commissioner's Office

2 Attachments

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10 December 2012

Case Reference Number IRQ0472666

Dear Mr Cross

Disclosure 
 
PARF 3 of 9
PARF 4
of 9
Steven Dickinson                 Lead Information Governance Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.

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

Information Commissioner's Office

2 Attachments

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10 December 2012

Case Reference Number IRQ0472666

Dear Mr Cross

Disclosure 
 
PARF 5 of 9
PARF 6 of 9

Steven Dickinson                 Lead Information Governance Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.

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

Information Commissioner's Office

2 Attachments

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10 December 2012

Case Reference Number IRQ0472666

Dear Mr Cross

Disclosure 
 
PARF 7 of 9
PARF 8 of 9

Steven Dickinson                 Lead Information Governance Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.

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

Information Commissioner's Office

2 Attachments

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10 December 2012

Case Reference Number IRQ0472666

Dear Mr Cross

Disclosure
 
PARF 9 of 9

Disclosure

PARFs where elements have been redacted as exempt under the provisions of
section 31(1)(g) and 31(2)(1) or (c); or section 44, by virtue of the
provisions of section 59 of the DPA; or as personal data under section
40(2) and 40(3) of FOIA. (Some combination of these may be applicable).
 
Redacted s31, 40 & 44  1 of 4

Steven Dickinson                 Lead Information Governance Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.

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

Information Commissioner's Office

2 Attachments

PROTECT

10th December 2012

Case Reference Number IRQ0472666

Dear Mr Cross

Disclosure

PARFs where elements have been redacted as exempt under the provisions of
section 31(1)(g) and 31(2)(1) or (c); or section 44, by virtue of the
provisions of section 59 of the DPA; or as personal data under section
40(2) and 40(3) of FOIA. (Some combination of these may be applicable).
 
Redacted s31, 40 & 44  2 of 4
Redacted s31, 40 & 44  3 of 4

Steven Dickinson                 Lead Information Governance Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.

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

Information Commissioner's Office

2 Attachments

PROTECT

10th December 2012

Case Reference Number IRQ0472666

Dear Mr Cross

Disclosure
 
PARFs where elements have been redacted as exempt under the provisions of
section 31(1)(g) and 31(2)(1) or (c); or section 44, by virtue of the
provisions of section 59 of the DPA; or as personal data under section
40(2) and 40(3) of FOIA. (Some combination of these may be applicable).

Redacted s31, 40 & 44  4 of 4

Disclosure
 
PARFs where elements have been redacted as personal data under section
40(2) and 40(3) of FOIA.

Redacted s40  1 of 5

Steven Dickinson                 Lead Information Governance Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.

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

Information Commissioner's Office

2 Attachments

PROTECT

10 December 2012

Case Reference Number IRQ0472666

Dear Mr Cross

Disclosure
 
PARFs where elements have been redacted as personal data under section
40(2) and 40(3) of FOIA.

Redacted s40  2 of 5
Redacted s40  3 of 5

Steven Dickinson                 Lead Information Governance Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.

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

Information Commissioner's Office

2 Attachments

PROTECT

10 December 2012

Case Reference Number IRQ0472666

Dear Mr Cross

Disclosure
 
PARFs where elements have been redacted as personal data under section
40(2) and 40(3) of FOIA.

Redacted s40  4 of 5
Redacted s40  5 of 5

This completes the disclosures.

Yours sincerely

Steven Dickinson                 Lead Information Governance Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.

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

Dear Information Commissioner’s Office,
Thank you for the information provided so far and for providing a detailed explanation of the exemptions you have applied.

Please carry out an internal review of Information Commissioner’s Office's handling of my FOI request 'PARFs stored outside casework management system'.

An internal review should examine all aspects of the way me request was handled but I will set out the reasons why I am seeking an internal review and some related queries:

1. You have stated that "some PARFs have also been
withheld in their entirety" but you have not said how many have been withheld. ICO guidance on FOI states that authorities should "Give an indication of how much text you have redacted and where from. "

2. Each PARF contains a date and each date falls within the scope of my initial request. For the PARFs that have been withheld in their entirety I would like clarification on what prejudice the release of the date would cause and why the ICO considers the public interest to lie in favour of non-disclosure.

3. Please can you provide the opinion of the qualified person in full and confirm that he read all the information that has been withheld under this exemption. I seek this information so I can reach my own view on whether or not his opinion was reasonable.

4. The opinion of the qualified person relates to one PARF only. Please could you state in broad terms what the subject matter of that PARF is - please do the same for any other PARF withheld in full.

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

Yours faithfully,

Mr Cross

Information Commissioner's Office

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12 December 2012

Case Reference Number RCC0476977

Dear Mr Cross

Thank you for your correspondence dated 12 December 2012.
 
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. Case reference RCC0476977 has
been set up for this purpose.
 
We will aim to respond by 15 January 2013 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.
 
Your request for internal review also contains new requests for
information. A new case will be set up and the requests acknowledged
shortly.
 
Yours sincerely
 
Steven Dickinson                 Lead Information Governance Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.
 

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

Information Commissioner's Office

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12 December 2012

Case Reference Number IRQ0476992

Dear Mr Cross
 
Request for Information
 
Thank you for your correspondence dated 12 December 2012 which requests an
internal review of our case reference IRQ0472666. It also contains
elements which we will treat as a new request for information,
specifically:
 
“3. Please can you provide the opinion of the qualified person in
full and confirm that he read all the information that has been
withheld under this exemption. I seek this information so I can
reach my own view on whether or not his opinion was reasonable.

4. The opinion of the qualified person relates to one PARF only.
Please could you state in broad terms what the subject matter of
that PARF is - please do the same for any other PARF withheld in
full.”
 
This is being treated as a new request for information and is being dealt
with in accordance with the Freedom of Information Act 2000, under the new
case reference at the head of this email. We will respond promptly, and no
later than 15 January 2013 which is 20 working days from the day after we
received your request.
 
Should you wish to reply 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
 
Steven Dickinson                 Lead Information Governance Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.
 
 

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

Information Commissioner's Office

1 Attachment

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7 January 2013

Case Reference Number IRQ0476992

Dear Mr Cross,
 
I write further to my 12 December acknowledgement. We are now in a
position to provide you with our response to your follow-up request for
information about PARFs. You requested:
 
“3. Please can you provide the opinion of the qualified person in
full and confirm that he read all the information that has been
withheld under this exemption. I seek this information so I can
reach my own view on whether or not his opinion was reasonable.

4. The opinion of the qualified person relates to one PARF only.
Please could you state in broad terms what the subject matter of
that PARF is - please do the same for any other PARF withheld in
full.”
 
As mentioned previously, we have dealt with these requests under the
provisions of the Freedom of Information Act 2000 (FOIA). (Items 1 and 2
in your list are matters for consideration in the internal review of our
response to your previous request, and are not being treated as requests
for information under FOIA).
 
In response to item 3, please find attached the documentation we use to
obtain the qualified person’s opinion, which includes the Commissioner’s
handwritten comments. These were transcribed into the response provided
previously. We do not hold any recorded information on whether the
Commissioner read all the information which has been withheld, but I can
confirm that it was made available to him.
 
At item 4, you have asked us to state in broad terms what the subject
matter of the PARF withheld under s36 of FOIA is and to do the same for
any other PARF withheld in full. Under the provisions of section 11 of
FOIA, a short summary of the subject of each of the withheld PARFs
follows:

* PARF withheld under section 36: this related to concerns about the
provision of sensitive personal data to the Hillsborough enquiry. Ways
in which this data could lawfully be provided to the enquiry without
breaching the provisions of the DPA were explored.

 

* PARF withheld under legal professional privilege: this dealt with the
question of whether access to court records under the Civil Procedure
Rules would engage the exemption at section 21 of FOIA.

 

* PARF withheld under legal professional privilege: this dealt with
whether remarks in a specified court case were considered obiter
dictum.

 

* PARF withheld under legal professional privilege: this dealt with the
retention of DNA in light of a judgement by the European Court of
Justice.

 

* PARF withheld under legal professional privilege: this dealt with who
would be the data controller in respect of medical records for ‘gone
away’ patients.

 

* PARF withheld under legal professional privilege: this dealt with a
query about whether Police and Crime Panels would be subject to FOI.

 

* PARF withheld under legal professional privilege: this dealt with
whether a liquidator would be the data controller for medical records
in the event that the liquidated company held medical records.

 

* PARF withheld under legal professional privilege: this dealt with
whether certain academy schools were subject to FOIA.

 

* PARF withheld under legal professional privilege: this dealt with
concerns about hard disks in photocopiers returned to the supplier at
the end of a contract.

 

* Six PARFs were withheld as being related to ongoing, open cases, or
cases where an appeal to the First Tier Tribunal is under way.

 

* Is a courier service considered to be a data processor if it is simply
transporting personal data for a data controller.
* Disbursements for of costs for providing scanned documents
electronically.
* Extent of investigation into multiple complaints required for decision
notice.
* Does ‘information’ include the sequence of bytes embedded within the
original documents.
* Which party in respect of a data breach will be the data controller.
* Who is the data controller in the case of agency staff, ie is it the
agency, or the employer using the agency staff.

 

* PARF withheld under section 44 of FOIA: this dealt with an issue about
data sharing within the insurance industry.

 

* PARF withheld under section 44 of FOIA: this dealt with a
self-reported breach of the DPA.

 

* PARF withheld under section 44 of FOIA: this dealt with a query about
compliance with the DPA for a proposed new reality television show.

 

* PARF withheld under section 44 of FOIA: this dealt with concerns about
poor understanding of the DPA by a data controller.

 

* PARF withheld under section 44 of FOIA: this dealt with whether a
named organisation was acting as a data controller, or a data
processor, for the purposes of the DPA.

 

* Two PARFs were withheld under section 44 of FOIA because the public
authority neither confirmed nor denied (NCND) whether information was
held in response to a request under FOIA. There are circumstances
where a NCND response is permissible under FOIA and the PARF sought
advice on whether those circumstances applied in each case. Disclosure
of the PARF would negate the NCND response.

 

* PARF withheld under section 44 of FOIA: this dealt with a proposal by
a data controller to impose a time limit for response by the data
subject, when it has requested clarification from a data subject about
their subject access request.

 

* PARF withheld under section 44 of FOIA: this dealt with an enquiry
from a body asking if its proposed operation would be compliant with
the DPA.

 

* PARF withheld under section 31 of FOIA: this dealt with an enquiry
from a telecoms provider about data security provisions.

 

* PARF withheld under section 31 of FOIA: this dealt with a data breach
reported to the ICO.

 
 
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 Governance
Department at the address below or e-mail
[1][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 First Contact 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 available [2]here.
 
Yours sincerely
 
Steven Dickinson                 Lead Information Governance Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.

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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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2. http://www.ico.gov.uk/about_us/~/media/d...

Information Commissioner's Office

Dear Mr Cross,
 
Freedom of Information request: review of request IRQ0472666
 
Your request for an internal review of our response to your information
request has been passed to me to undertake.    I have considered all the
relevant information, including your request, your request for review and
the withheld information.  My colleague Steve Dickinson has already
responded to points 3 and 4 of your internal review request.  As requested
I have reviewed the refusal in full and addressed points one and two in
your request for review.
 
I have reviewed the application of all the exemptions.  The approach I
have taken to section 36 is slightly different - as the qualified person
is the Information Commissioner I would not be able to substitute my view
for his.  I have therefore reviewed the outcome of the public interest
test under section 36.
 
I have dealt with each exemption in turn. I would highlight the high
percentage of information already disclosed.  Although the amount of
information requested was voluminous I am satisfied that the
considerations about the exemptions were made on the basis of considering
each document in turn and each section.  However, I have reviewed the
information in detail and reached the following conclusions:
 
Section 40 – personal data
 
Having reviewed the application of this exemption and the withheld
information I have concluded that it was correctly applied, on the basis
as explained in the refusal notice – disclosure of this information,
clearly the personal data of third parties who have interacted with the
ICO, would be unfair and therefore a breach of the first data protection
principle.
 
Section 31 – law enforcement
 
I have also concluded that the exemption was correctly applied at the time
of the request.  The key factor in applying this exemption to most of the
information was the fact that many of the cases were open at the time of
the request.  Although my review only needs to cover the circumstances at
the time of the request I have considered whether the passage of time now
means more information can be disclosed.  A number of the open cases have
now closed and we can disclose further PARFs to you.
 
For the remaining PARFs it is clear that disclosing ICO advice related to
specific open cases or while the issue is live for other reasons would be
likely to prejudice to the ICO’s ability to engage with the public
authorities and data controllers.   Once a case officer or other member of
ICO staff has received the advice in the PARF they require time and space
to consider how to use the advice. It can also damage the basis on which
the ICO and public authorities are able to openly exchange information,
without the need for the ICO to always use its formal powers.  If it was
disclosed to parties and the wider public whilst the case was open it
would make investigations more complex and impact on the ICO’s ability to
ascertain compliance with the law and consideration of regulatory action.
  I support the conclusion reached on the public interest factors in the
refusal notice.  Strong weight can be given to these factors.  Having
considered the information I have not found any strong specific factors in
favour disclosure though I recognise the significant general public
interest in transparency about how the ICO develops advice on the law it
regulates. 
 
The subject matter of these PARFs has now been disclosed to you.
 
Section 42 – legal professional privilege
 
I have concluded that this exemption was correctly applied and the outcome
of the public test is upheld. The refusal notice stresses the current
nature of the advice and the general weight that can be applied to
protecting the confidentiality of the legal advice. I have also not found
any compelling public interest factors in favour of disclosing the
specific information withheld under section 42.
 
The subject matter of these PARFs has now been disclosed to you.

Section 36 – prejudice to the conduct of public affairs
 
The subject matter of this PARF has now been communicated to you
(Hillsborough) and I have concluded that the date can also be disclosed. 
Beyond this I have found that the outcome under the section 36 public
interest test was correct.  This is based on the specific prejudice that
would be likely to be caused by disclosing the specific document.  The
strong public interest in maintaining the exemption is based on the
circumstances at the time of the request and I have concluded that the
timing of the request combined with the specific content are key factors
that support strong weight in favour of maintaining the exemption. This
has not changed.  I recognise the particular public interest in the
subject and the public interest in understanding the advice the ICO
provided but I have concluded the public interest favours maintaining the
exemption
 
Section 44 –statutory bar - section 59 of the Data Protection Act (DPA)
 
I have found that some further information withheld under this exemption
can be disclosed from certain PARFs that were originally withheld in their
entirety.  Disclosure of certain sections would not disclose information
“obtained” by the ICO, as set out in section 59 of the DPA. 
 
I have concluded that the application of the section 44 in conjunction
with section 59 of the DPA was correct for the other information
withheld.  The information withheld meets all of the criteria set out on
section 59(1) of the DPA.  I have also reconsidered the conditions for
lawful authority in section 59(2) of the DPA and none of them are met.
 
The subject matter of these PARFs has now been disclosed to you.
 
Point 1 – number of PARFs withheld in full – I acknowledge that the ICO
could have provided a better indication of the PARFs withheld in full. 
The number is 25. 
 
Point 2 – you have also specifically asked that I review the decision to
withhold the dates of the PARFs. I agree that this information can be
disclosed to you and would not engage any of the exemptions cited.  This
information will be disclosed to you linked to the subject matter and case
references already disclosed.
 
I am arranging to have the further information disclosed to you in the
next few days.
 
Section 50 FOIA
 
If you are dissatisfied with the outcome of the review you may make
section 50 complaint to the ICO. 
 
Information on how to complain is available on the ICO website at:
[1]http://www.ico.gov.uk/complaints/freedom...   
 
By post: If your supporting evidence is in hard copy, you can fill in the
Word version of our complaint form, print it out and post it to us with
your supporting evidence. A printable Freedom of Information Act
complaints form is available from the ICO website. Please send to:
 
Case Reception Unit
Customer Service Team
Information Commissioner's Office, Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF
 
By email: If all your supporting evidence is available electronically, you
can fill in our online complaint form. Important: information included in
the form, and any supporting evidence will be sent to us by email.
 
Yours sincerely
 
 
 
Steve Wood
Head of Policy Delivery

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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

Visible links
1. http://www.ico.gov.uk/complaints/freedom...

Information Commissioner's Office

1 Attachment

PROTECT

17 January 2013

Case Reference Number IRQ0476992

Dear Mr Cross,
 
Further to the internal review conducted by Steve Wood, please find
attached copies of three further PARFs which it has been determined can
now be disclosed to you in full, and two PARFs which can be disclosed in
redacted form.
 
In respect of the PARFs which were previously withheld and a summary
provided in response to your follow-up request, I have appended below the
date and case reference associated with each PARF (where this information
is held). Where the PARF is now to be disclosed, fully or in redacted
form, this is also annotated below.
 

* PARF withheld under section 36: this related to concerns about the
provision of sensitive personal data to the Hillsborough enquiry. Ways
in which this data could lawfully be provided to the enquiry without
breaching the provisions of the DPA were explored. This PARF is
undated, no case reference.

 

* PARF withheld under legal professional privilege: this dealt with the
question of whether access to court records under the Civil Procedure
Rules would engage the exemption at section 21 of FOIA. Dated 25 May
2012, case reference FS50440463.

 

* PARF withheld under legal professional privilege: this dealt with
whether remarks in a specified court case were considered obiter
dictum. Dated 07/01/2010, no case reference.

 

* PARF withheld under legal professional privilege: this dealt with the
retention of DNA in light of a judgement by the European Court of
Justice. Dated 7/3/2011, no case reference.

 

* PARF withheld under legal professional privilege: this dealt with who
would be the data controller in respect of medical records for ‘gone
away’ patients. Dated 14/11/2011, case reference ENF0397480.

 

* PARF withheld under legal professional privilege: this dealt with a
query about whether Police and Crime Panels would be subject to FOI.
Dated 13 December 2010, no case reference.

 

* PARF withheld under legal professional privilege: this dealt with
whether a liquidator would be the data controller for medical records
in the event that the liquidated company held medical records. Dated
13/06/2012, case reference RFA0403572.

 

* PARF withheld under legal professional privilege: this dealt with
whether certain academy schools were subject to FOIA. Dated 28/01/11,
no case reference.

 

* PARF withheld under legal professional privilege: this dealt with
concerns about hard disks in photocopiers returned to the supplier at
the end of a contract. Dated 4 April 2011, case reference ENF0432389.

 

* Six PARFs were withheld as being related to ongoing, open cases, or
cases where an appeal to the First Tier Tribunal is under way.

 

* Is a courier service considered to be a data processor if it is simply
transporting personal data for a data controller. Dated 24 Sept 2012,
case reference ENF0432355.
* Disbursements for of costs for providing scanned documents
electronically. Dated 3 October 2012, case reference FER0427861. This
PARF is now disclosed, see attached.
* Extent of investigation into multiple complaints required for decision
notice. Dated 19 September 2012, case reference FER0427861. This PARF
is now disclosed, see attached.
* Does ‘information’ include the sequence of bytes embedded within the
original documents. Dated 18/06/12, case reference FS50448720. This
PARF is now disclosed, see attached.
* Which party in respect of a data breach will be the data controller.
Dated 31/10/12, case reference ENF0462632.
* Who is the data controller in the case of agency staff, ie is it the
agency, or the employer using the agency staff. Dated 18 Sept 2012,
case reference ENF0439783.

 

* PARF withheld under section 44 of FOIA: this dealt with an issue about
data sharing within the insurance industry. Dated 28/03/2011, no case
reference.

 

* PARF withheld under section 44 of FOIA: this dealt with a
self-reported breach of the DPA. Dated 24 Sept 2012, case reference
ENF0432355.

 

* PARF withheld under section 44 of FOIA: this dealt with a query about
compliance with the DPA for a proposed new reality television show.
Dated 15.06.11, case reference ENQ0395033.

 

* PARF withheld under section 44 of FOIA: this dealt with concerns about
poor understanding of the DPA by a data controller. Dated 16/10/12,
case reference RFA0437643. This PARF is now disclosed, with some
redactions, see attached.

 

* PARF withheld under section 44 of FOIA: this dealt with whether a
named organisation was acting as a data controller, or a data
processor, for the purposes of the DPA. Dated 01/02/12, case reference
ENF0415900.

 

* Two PARFs were withheld under section 44 of FOIA because the public
authority neither confirmed nor denied (NCND) whether information was
held in response to a request under FOIA. There are circumstances
where a NCND response is permissible under FOIA and the PARF sought
advice on whether those circumstances applied in each case. Disclosure
of the PARF would negate the NCND response. One PARF dated 22 May
2007, case reference FS50146784. One PARF dated 20/05/08, case
reference FS50174005. This PARF is now disclosed, with some
redactions, see attached.

 

* PARF withheld under section 44 of FOIA: this dealt with a proposal by
a data controller to impose a time limit for response by the data
subject, when it has requested clarification from a data subject about
their subject access request. Dated 9-12-11, no case reference.

 

* PARF withheld under section 44 of FOIA: this dealt with an enquiry
from a body asking if its proposed operation would be compliant with
the DPA. Dated 18/9/11, no case reference.

 

* PARF withheld under section 31 of FOIA: this dealt with an enquiry
from a telecoms provider about data security provisions. Dated
17/05/12 case reference RFA0428551.

 

* PARF withheld under section 31 of FOIA: this dealt with a data breach
reported to the ICO. Dated 16/01/2012, reference 413617.

 
I hope that this is of some help to you.
 
Yours sincerely
 
Steven Dickinson                 Lead Information Governance Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.
 
 

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