Dear Information Commissioner's Office,
Please provide a breakdown of all costs associated with your "unprecedented" certification to the Hight Court in respect of the Council of the University of Southampton's non-compliance with the information notice referred to in DN FS50772671:
"179. However, the Commissioner wishes to draw attention to the fact she has never before had to take make a certification to the High Court in respect of a public authority’s non-compliance with an Information Notice. The steps that the Commissioner has had to take in this case are therefore unprecedented."
15 January 2020
Case Reference Number IRQ0900041
Dear J Roberts,
We write in response to your recent request for information. We received
your request on 27 December 2019 and we are now in a position to respond.
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).
In your email you asked us to:
“provide a breakdown of all costs associated with your "unprecedented"
certification to the High Court in respect of the Council of the
University of Southampton's non-compliance with the information notice
referred to in DN FS50772671”
We can confirm that we hold information within the scope of your request.
In requesting from the High Court a certification in relation to conduct
alleged to constitute contempt of court pursuant to Part 81, Section 4 of
the Civil Procedure Rules, the ICO paid a court fee of £255.
We can also advise you that the ICO incurred counsel’s fees in relation to
this matter. However, we are withholding information relating to these
costs pursuant to section 43 of the FOIA. We will explain the application
of this exemption further below.
Information withheld – section 43 (commercial interests)
We have withheld information about counsel’s fees incurred, as this
information engages the exemption at section 43 of the FOIA which is about
prejudice to commercial interests. We consider the disclosure of this
information would be likely to prejudice the commercial interests of both
us and our external legal counsel.
The ICO’s guidance on what constitutes a commercial interest states:
“A commercial interest relates to a person’s ability to participate
competitively in a commercial activity.”
FOIA Section 43 states:
“Information is exemption information if its disclosure under this Act
would, or would be likely to, prejudice the commercial interests of any
person (including the public authority holding it).”
‘A person’ may be an individual, a company, the public authority itself or
any other legal entity.
This is a qualified exemption and requires that we carry out a public
interest test. Where a public authority is satisfied that the release of
the information requested would prejudice someone’s commercial interests,
it can only refuse to provide the information if it is satisfied that the
public interest in withholding the information outweighs the public
interest in disclosing it.
In this particular case we consider that the factors in favour of
disclosing this information are:
* Promoting accountability and transparency in the spending of public
money and the way the ICO conducts its business.
The factors for maintaining the exemption and withholding the information
* The public interest in the ICO being able to negotiate and secure
counsel engagement on terms which secure the best value, without
prejudicing our commercial interests or the commercial interests of
legal advisors we wish to engage.
* The disclosure of the fee paid to counsel in respect of this matter
would be likely to prejudice their ability and the ability of other
counsels engaged by the ICO to negotiate with other clients about
fees, and as such would likely harm their commercial interests.
We consider that in all the circumstances the public interest in
maintaining the exemption outweighs the public interest in disclosing this
This concludes our response to your request.
If you are dissatisfied with this response and wish to request a review of
our decision or make a complaint about how your request has been handled
you can 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
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 our Customer Contact Team at the address given or visit our website if
you wish to make a complaint under the Freedom of Information Act.
A copy of our review procedure can be accessed from our website.
Senior Information Access Officer, Risk and Governance Department
Corporate Strategy and Planning Service
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
T. 0330 313 1636 F. 01625 524510 ico.org.uk twitter.com/iconews
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