The Faversham Society

Jon Patience 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 refused by Information Commissioner's Office.

Dear Information Commissioner’s Office,

Please may I have a copy of all communications between yourselves and the Faversham Society of Fleur de Lis Heritage Centre, Preston Street, Faversham, Kent ME13 8NS (Registered Charity No. 1135262) as to whether their members' newsletter constitutes a marketing communication for the purposes of PECR.

As you have apparently advised them categorically on several occasions please may I have copies of all of these communications.

Yours faithfully,

Jon Patience

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

17 July 2018

 

Case Reference Number IRQ0759963

 

Dear Mr Patience

Request for Information
 
Further to your email of 26 June we are now in a position to respond to
your request for information.  
 
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).
 
Request
 
In your email you asked:
 
“Please may I have a copy of all communications between yourselves and the
Faversham Society of Fleur de Lis Heritage Centre, Preston Street,
Faversham, Kent ME13 8NS (Registered Charity No. 1135262) as to whether
their members' newsletter constitutes a marketing communication for the
purposes of PECR. As you have apparently advised them categorically on
several occasions please may I have copies of all of these
communications.”
 
Our response
 
We do hold a document within the scope of your request however this is
being withheld under the provisions of section 44 of the FOIA which places
prohibitions on disclosure.
 
Section 44 of the FOIA –

Section 44 is an absolute exemption which does not require consideration
of the public interest test of the type required by a qualified exemption.

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 -
 
 

 1. is prohibited by or under any enactment’ 

In this case, the Data Protection Act 2018, Part 5, section 132 prohibits
the disclosure of confidential information that -
 
 
 

 1. 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,
 2. relates to an identified or identifiable individual or business, and
 3. 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. 
 
The information withheld relates to an identifiable individual and we do
not have lawful authority to disclose this information to you. Section
132(3) imposes a criminal liability on the Commissioner and her staff not
to disclose information relating to an identifiable individual or business
for the purposes of carrying out our regulatory functions, unless we have
the lawful authority to do so or it has been made public from another
source.
 
Review Procedure
 
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 should write to the Information Access Team at the address below or
e-mail [1][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 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.
[2]here.
 
Yours sincerely

Adrian Hay
Lead Information Access Officer
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
T. 03304146450  F. 01625 524510  ico.org.uk  twitter.com/iconews
Please consider the environment before printing this email
For information about what we do with personal data see our privacy notice
 

References

Visible links
1. mailto:[ICO request email]
2. https://ico.org.uk/media/about-the-ico/p...

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 'The Faversham Society'.

I do not accept that all of the information held by the ICO is covered by a duty of confidence, such that releasing it would result in an actionable breach of that duty. Further, I submit that you have misdirected yourself about the public interest in this matter. Although the exemption which you claim does not require a public interest test, the House of Lords made it clear in Attorney General -v- Observer Ltd [1990] 1 AC 109 that information is not confidential where there is a public interest in disclosure. If there is a public interest in disclosure, then the exemption you claim does not apply because the information is not confidential.

Finally, I submit that the document can be redacted to remove any information which is genuinely subject to a duty of confidence.

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

Yours faithfully,

Jon Patience

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
[3]http://www.ico.org.uk/tools_and_resource...

Twitter

Find us on Twitter at [4]http://www.twitter.com/ICOnews

 

References

Visible links
1. http://ico.org.uk/about_us/how_we_comply
2. https://ico.org.uk/global/privacy-notice/
3. http://www.ico.org.uk/tools_and_resource...
4. http://www.twitter.com/ICOnews

Information Commissioner's Office

11th September 2018

 

Case Reference Number RCC0778437

 

Dear Mr Patience

Thank you for your email of 21 August 2018 in which you requested an
internal review of the response you received to your request reference
number IRQ0759963.
 
Please find below our response to your review request.
 
Background
 
 
On 26 June 2018 you requested the following information:

“Please may I have a copy of all communications between yourselves and the
Faversham Society of Fleur de Lis Heritage Centre, Preston Street,
Faversham, Kent ME13 8NS (Registered Charity No. 1135262) as to whether
their members' newsletter constitutes a marketing communication for the
purposes of PECR. As you have apparently advised them categorically on
several occasions please may I have copies of all of these
communications.”

 
We responded to your request on 17 July 2018 .We confirmed we hold one
communication in scope of your request but we refused to provide you with
a copy of it citing the exemption under s 44 of the FOIA by virtue of
section 132 (3) DPA 2018.
 
On 21 August 2018 you requested an internal review of our decision.
 
Having reviewed our response, I do not uphold your complaint. I will
explain my decision below.
 
Response
 
I have reviewed Mr Hay’s response to your request and agree that section
44 of the FOIA applies to the information we hold.
 
As explained by Mr Hay, this is an absolute exemption which means that
information can be withheld without further consideration if other
legislation prevents its release, if it meets certain conditions, and if
none of the circumstances that would give us lawful authority to release
it apply.
 
 
To reiterate, section 44 exemption applies to the withheld information
because;
 

* It 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,
* It relates to an identifiable business –Faversham Society.
* It is not, and was not previously, publicly available from other
sources.

We do not have consent to disclose this information to you and we have not
obtained it in order to make it available to the public.
We do not consider it necessary or justifiable to disclose this
information as there is no compelling public interest to do so. 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. 

I also consider that the exemption under s 31 of the FOI which concerns
Law enforcement applies to the withheld information.
 
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

 
As we applied a qualified exemption, s 31 FOIA, we carried out the public
interest test in order to allow us to make a decision on whether the
balance lays with or against disclosure.
 
The arguments for disclosure are; increased transparency and
accountability in the ICO’s work in general and increased transparency in
the way in which the Faversham Society has specifically communicated with
the ICO.
 
 
 
For the arguments against disclosure; the disclosure of the withheld
information would likely prejudice our ability to carry out our regulatory
functions which include engaging with small organisations on information
rights issues to ensure their compliance with the relevant law. The
disclosure would be likely to prejudice the exchange of information
between the ICO and not only Faversham Society but other small
organisations that would become more guarded and cautious in proactively
seeking guidance on information rights issues. This would in turn be
likely to prejudice the effectiveness of the ICO’s regulatory processes.
 
There is a public interest in maintaining the Faversham Society’s trust
and confidence that their enquiries to the ICO about information rights
issues will be afforded an appropriate level of confidentiality. There is
also a public interest in data controllers, in general, being open and
honest in their communications with the ICO about information rights
issues without fear that their communications will be made public.
Finally, the public interest in meeting Faversham expectation of
non-disclosure having ascertained their views on this individual request.
 
I consider that the balance of the public interest in this case weighs
more against disclosure.
 
Finally,you may find our guidance concerning direct marketing of
assistance in explaining the ICO’s position about newsletters [1]here.
 
I realise that this response is disappointing but hope the explanation
provided is clear.
 
 
Yours sincerely
 
Iman Elmehdawy
Information Access Service Manager
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
 
Next Steps
 
If you remain 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. Please follow the link below to submit your
complaint
[2]https://ico.org.uk/concerns/
 

 

References

Visible links
1. https://ico.org.uk/media/for-organisatio...
2. https://ico.org.uk/concerns/

Jonathan Baines left an annotation ()

ICO suggest that there is only one document in scope here, and as the obligation of confidence cannot apply to correspondence sent *from* ICO *to* Faversham Society, one must therefore deduce that ICO has not written to the Society.

I also note that in the internal review response ICO introduces a new exemption, but makes no apology for, acknowledgement of, the fact that this means there was a contravention of section 17(1) FOIA.