November 2007

Public Authority: North Western & North Wales Fisheries Committee

Summary: The complainant requested from the authority “copies of the Committee’s annual statements of importation into and harvesting from each mussel lay in the East Menai Fishery, and where the imports came from.” The complainant further clarified that the information was required for each of the six fishery areas over the preceding ten year period. The authority refused the request by virtue of sections 41 and 43 of the Freedom of Information Act, stating that the disclosure of the information would “prejudice the commercial interests of the lease holders” and that the “information requested was supplied in confidence.” The Commissioner sought copies of the withheld information, a sample of which was provided by the authority. The Commissioner’s decision is that the exemption in section 41 is not engaged. He has also decided that section 43 is not engaged and that the information requested should therefore be released. The Commissioner finds that the authority has not complied with section 10(1) of the Act. This decision notice is currently under appeal to the Information Tribunal.

Section of Act/EIR & Finding: FOI 41 – Complaint not upheld, FOI 43 – Complaint not upheld.
View PDF of Decision Notice FS50094592

Case Ref: FS50118390
Date: 19/11/2007
Public Authority: Her Majesty’s Revenue and Customs
Summary: The complainant requested copies of HMRC’s internal guidance on the issuing of determinations to taxpayers who had failed to submit a self-assessment tax return not already published on its website. HMRC refused to provide the complainant with withheld guidance because it considered it to be exempt from disclosure on the basis of section 31(1)(d) (assessment or collection of any tax or duty). Having reviewed the withheld information the Commissioner has decided that HMRC appropriately relied upon section 31 when refusing to supply the information.
Section of Act/EIR & Finding: FOI 31 – Complaint not upheld.
View PDF of Decision Notice FS50118390

Case Ref: FS50131785
Date: 19/11/2007
Public Authority: Gloucestershire County Council
Summary: The complainants asked the council for the information it had compiled on options for saving £10 million from its adult services budget.
The council withheld the requested information under s36 (prejudice to the effective conduct of public affairs). The Commissioner decided that information which directly related to savings options was correctly exempted. He decided that part of the information was not exempt under s36 and should be released.
Section of Act/EIR & Finding: FOI 36 – Complaint partially upheld.
View PDF of Decision Notice FS50131785

Case Ref: FS50101728
Date: 19/11/2007
Public Authority: Foreign and Commonwealth Office
Summary: The complainant asked the Foreign and Commonwealth Office (FCO) whether it held information about supplies and/or stockpiles of anthrax held abroad. FCO refused to confirm or deny that it held such information, citing the exemptions in sections 23(5) and 24(2) of the Act. The Commissioner upheld the refusal of the request, having concluded that FCO was entitled to rely on both sections of the Act and that, as regards section 24(2), in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighed the public interest in disclosing whether FCO held the information.
Section of Act/EIR & Finding: FOI 23 – Complaint not upheld, FOI 24 – Complaint not upheld.
View PDF of Decision Notice FS50101728

Case Ref: FS50150138
Date: 19/11/2007
Public Authority: Financial Services Authority
Summary: The complainant requested information held by the FSA in relation to an investigation against himself. The FSA found that some of the information was his personal data and dealt with this as a subject access request. The FSA disclosed some information to the complainant under the Act but found that the remaining information was exempt under section 40, 44 and 42. The Commissioner investigated and found that the exemptions were engaged and that the authority was correct to have withheld the information. This decision notice is currently under appeal to the Information Tribunal.
Section of Act/EIR & Finding: FOI 40 - Complaint not upheld, FOI 42 -Complaint not upheld, FOI 44 – Complaint not upheld.
View PDF of Decision Notice FS50150138

Case Ref: FER0086108
Date: 19/11/2007
Public Authority: Department for Environment, Food and Rural Affairs
Summary: The complainant asked Defra for information about two contractors involved in the clean up operation after the 2001 Foot and Mouth Disease epidemic. In respect of the first company, Defra withheld the information sought, citing the exceptions in regulations 12(3), (4)(e), (5)(d) and (e) of the EIR. Defra said that investigations were proceeding into the second company. It subsequently cited regulation 12(4)(d) as its grounds for withholding information about that company.  The Commissioner decided, in relation to the first company, that the information in question should be withheld under regulations 12(4)(e), 12(5)(b) and (d). For the comparable information for the second company, the Commissioner found that some of the information had been correctly withheld under regulation 12(4)(d), and that Defra had complied with its obligations under regulation 5(1) in saying that other information was not held at the time of the request. The Commissioner concluded that, in all the circumstances of the case, the public interest in maintaining the exceptions in the regulations outweighed the public interest in releasing the information.  He found, however, that Defra had misapplied regulation 12(5)(d), in relation to the legal aspects of some of the information. This decision notice is currently under appeal to the Information Tribunal.
Section of Act/EIR & Finding: EIR 12(4)(d) – Complaint not upheld, EIR 12(4)(e) – Complaint not upheld, EIR 12(5)(b) – Complaint not upheld, EIR 12(5)(d) – Complaint upheld.
View PDF of Decision Notice FER0086108

Case Ref: FS50122983
Date: 19/11/2007
Public Authority: Department for Culture Media and Sport
Summary: The complainant requested all the paperwork concerning the decision not to list a building. DCMS refused to disclose the information held and relied on sections 36, 40 and 42 of the Act. The complainant disputed the application of section 36. The Commissioner investigated and found that the information requested was environmental information and that the request should have been dealt with under the EIR. The Commissioner found that under the EIR the exception at regulation 12 (4) (e) was engaged in relation to the information withheld under section 36 but that in all circumstances of the case the public interest in maintaining the exception did not outweigh the public interest in disclosure. In failing to deal with the request under the correct legislation the Commissioner finds that DCMS were in breach of regulation 14. By failing to disclose the information and relying on the exemption at 12 (4) (e) DMCS breached the requirements of regulation 5. The Commissioner orders the DCMS to disclose the information withheld under regulation 12 (4) (e) of the Act, subject to redaction of the information which can withheld under regulation 13 (Personal Data).
Section of Act/EIR & Finding: EIR 5(1) - complaint upheld, EIR 12(4)(e) - complaint upheld, EIR 14 - complaint upheld, EIR 13 - Complaint not upheld.
View PDF of Decision Notice FS50122983

Case Ref: FS50078471
Date: 19/11/2007
Public Authority: Cabinet Office
Summary: The complainant asked the public authority for minutes of a meeting between the Prime Minister and Wal-Mart representative(s) around February/March 1999. The public authority claimed the information was exempt from disclosure, alternating between sections 36 and 35. Following the Commissioner’s intervention the public authority sent the complainant what it claimed was a summary of the points discussed at the meeting. The complainant complained that this did not satisfy his request. The Commissioner agreed that the summary was not comprehensive and concluded that neither the section 35 or 36 exemptions were engaged. He decided that the public authority’s misleading summary breached section 1(1)(b); in failing to provide details of its own internal review procedures and the Information Commissioner's Office it had breached its obligations under section 17(7) of the Act; in delaying issuing its refusal notice and internal review decision it had breached section 17(1) of the Act; in failing to provide an adequate assessment of the public interest test it had again breached section 17(1); and it had breached section 36 by inappropriately withholding the requested information as being exempt under that section. The Commissioner required the public authority to provide the complainant with a full copy of the requested information.
Section of Act/EIR & Finding: FOI 1 – Complaint upheld, FOI 10 – Complaint upheld, FOI 17 – Complaint upheld, FOI 36 – Complaint upheld.
View PDF of Decision Notice FS50078471

Case Ref: FS50108122
Date: 19/11/2007
Public Authority: Birmingham City Council
Summary: The complainant requested information surrounding a working party set up to examine stakeholder relationships in relation to Woodgate Valley Country Park, including submissions to the working group and notes of the stakeholder meetings.  The Council supplied some of the information requested, but refused to disclose certain information citing sections 21 (information accessible by other means), section 31 (law enforcement), section 36 (prejudice to effective conduct of public affairs) and section 40 (personal information).  The Commissioner accepts that section 21 applies; also, section 40 has been applied correctly in part.  However, the Commissioner does not accept the application of section 31 or section 36 and believes that section 40 should be applied to some information not identified as personal information by the Council.  The Council also did not comply with section 17 and issued an unsatisfactory refusal notice.  The Council is required to release the non-exempt information within 35 calendar days.
Section of Act/EIR & Finding: FOI 17 – Complaint upheld, FOI 21 – Complaint not upheld, FOI 31 – Complaint upheld, FOI 40 – Complaint not upheld.
View PDF of Decision Notice FS50108122

Case Ref: FER0099394
Date: 14/11/2007
Public Authority: East Sussex County Council
Summary: The complainant requested a copy of a waste management contract East Sussex County Council (the ‘ESCC’) has agreed with an independent waste management contractor. The council withheld some sections of the contract on the basis that Regulation 12(5)(e) (commercial confidentiality of information) applied. The Commissioner’s decision in this matter is that the ESCC has not dealt with the complainant’s request in accordance with the Regulations in that some sections of the redacted information should have been supplied to the complainant. The exception to the duty to disclose the requested information was however applicable to other sections of the contract.
Section of Act/EIR & Finding: EIR 12(5)(e) – Complaint partially upheld.
View PDF of Decision Notice FER0099394

Case Ref: FER0073984
Date: 14/11/2007
Public Authority: Brighton and Hove Council
Summary: The complainant requested a copy of a waste management contract Brighton & Hove City Council (the ‘BHCC’) has agreed with an independent waste management contractor. The BHCC withheld some sections of the contract on the basis that Regulation 12(5)(e) (commercial confidentiality of information) applied. The Commissioner’s decision in this matter is that the BHCC has not dealt with the complainant’s request in accordance with the Regulations in that some sections of the redacted information should have been supplied to the complainant. The exception to the duty to disclose the requested information was however applicable to other sections of the contract.
Section of Act/EIR & Finding: EIR 12(5)(e) – Complaint partially upheld.
View PDF of Decision Notice FER0073984

Case Ref: FS50151825
Date: 12/11/2007
Public Authority: Public Prosecution Service for Northern Ireland
Summary: The complainant made a request to the Public Prosecution Service for Northern Ireland (“PPS(NI)”) for a copy of any psychiatric or probation report or any character references on Robert Lesarian Howard.  Mr Howard was acquitted of the murder of Arlene Arkinson in June 2005. The PPS(NI) withheld the requested information relying on exemptions under sections 30(1)(a)(i) and (ii), 30(1)(b) and 30(1)(c) (investigations and proceedings conducted by public authorities) and 40(2) (personal data relating to third parties) of the Act. The complainant appealed to the Information Commissioner (the Commissioner). The Commissioner has not upheld the complaint as he is satisfied that the PPS(NI) was correct to withhold the information requested under section 40(2) of the Act, since its disclosure would breach data protection principles. This decision notice is currently under appeal to the Information Tribunal.
Section of Act/EIR & Finding: FOI 30 – Complaint not upheld, FOI 40 – Complaint not upheld.
View PDF of Decision Notice FS50151825

Case Ref: FS50146736
Date: 12/11/2007
Public Authority: Liverpool NHS Primary Care Trust
Summary: The complainant requested a copy of all “investigative literature” relating to any investigation carried out by Liverpool NHS Primary Care Trust (the “PCT”) into Urgent Care 24 (“UC24”) which had come about following a “public interest disclosure meeting held in July 2006”. The complainant also requested copies of any correspondence between the PCT and UC24 relating to any such investigation. The PCT informed the complainant that it did not hold any information relating to his request, and that no specific action had taken place as a result of the meeting on 20 July 2006 (the “July meeting”). During the course of this case the PCT informed the Commissioner that it had carried out a review of UC24 during 2006 – 2007, but that this had not come about as a result of the July meeting, and was in fact part of a process which had begun in February 2006. The PCT informed the Commissioner that it had told the complainant of this. After considering the information provided by both parties the Commissioner decided that the PCT did not hold any information which fell under the complainant’s request (as the PCT provided compelling evidence to show that the review had not been carried out as a result of the July meeting), and therefore the PCT had complied with section 1 of the Act. The Commissioner does not require the PCT to take any further steps.
Section of Act/EIR & Finding: FOI 1 – Complaint not upheld.
View PDF of Decision Notice FS50146736

Case Ref: FER0162211
Date: 12/11/2007
Public Authority: Sutton and East Surrey Water plc
Summary: The complainant requested all information evidencing what was discussed in a particular meeting the public authority attended. The public authority informed the complainant that it did not hold any information, but the complainant did not accept this position. The Commissioner upheld the public authority position that no information was held but found that it had responded later than 20 working days after receipt of the request. An appeal was made to the Tribunal but later withdrawn.
Section of Act/EIR & Finding: EIR 9(1) - Complaint not upheld, EIR 12(4)(a) – Complaint not upheld, EIR 14(2) – Complaint upheld.
View PDF of Decision Notice FER0162211

Case Ref: FS50125530

Date: 12/11/2007

Public Authority: Gloucestershire NHS Primary Care Trust

Summary: The complainant submitted a request for documents which formed part of her late father’s medical records and a further request for copies of contemporaneous notes made by members of a panel which reviewed the care provided to her late father. The public authority provided the complainant with some medical records but refused to disclose the panel members’ notes on the basis of section 36. The complainant alleged that the public authority held further documents on her late father’s medical record which had not been disclosed to her and that section 36 had been misapplied.
The Commissioner has concluded that all of the medical records held by the Trust which fell within the scope of the complainant’s request have been supplied to her. However, the Commissioner decided that the medical records which were disclosed to the complainant were exempt under section 21 of the Act because they were accessible to the complainant under the Access to Health Records Act. With regard to the panel members’ notes, when the Commissioner contacted the public authority and asked to be provided with a copy of the notes, the public authority informed the Commissioner that they had in fact been destroyed. The Commissioner has investigated this matter and accepts that the notes are no longer held by the Trust. However, without being able to view the notes the Commissioner is unable to make a decision as to whether section 36 was applied correctly at the time of the request.

Section of Act/EIR & Finding: FOI 1 – Complaint not upheld, FOI 10 – Complaint upheld, FOI 17 – Complaint upheld.
View PDF of Decision Notice FS50125530 

Case Ref: FS50094472
Date: 12/11/2007
Public Authority: Department for Business, Enterprise & Regulatory Reform
Summary: The complainant was refused information about the application of the Department’s Coal Investment Aid scheme to the Aberpergwyn Colliery. The Commissioner decided that information contained within reports to the department from its consultants had been correctly withheld using the section 41 exemption but that the Department had been in breach of section 17 of the Act in not including section 41 in its refusal notice.
He also decided that other information, about the offer of aid and employment at the mine, had been wrongly withheld as the section 43 exemption was not engaged.
Section of Act/EIR & Finding: FOI 17 – Complaint upheld, FOI 41 – Complaint not upheld, FOI 43 – Complaint upheld.
View PDF of Decision Notice FS50094472

Case Ref: FS50115331
Date: 08/11/2007
Public Authority: London Borough of Camden
Summary: The complainant asked London Borough of Camden Council (the Council) for a copy of all Community Housing Group (CHG) properties under the local authority. In a further request the complainant asked various questions in relation to evictions.   The Commissioner agrees with the Council’s decision not to supply the information under section 40(2) of the Act and the reasoning applied by the Council. This decision notice is currently under appeal to the Information Tribunal.
Section of Act/EIR & Finding: FOI 40 – Complaint not upheld.
View PDF of Decision Notice  FS50115331

Case Ref: FS50169994
Date: 07/11/2007
Public Authority: Norfolk County Council
Summary: The complainant made a request to Norfolk County Council (“the Council”), which was the most recent in a series of requests, relating to the care provided to an elderly person by an independent care organisation contracted by the Council. The Council applied the exclusion under section 14(1) of the Freedom of Information Act 2000 (“the Act”) because it considered that the request was vexatious. The Commissioner has investigated and was satisfied that the Council was able to demonstrate that the request had been correctly refused. This decision notice is currently under appeal to the Information Tribunal.
Section of Act/EIR & Finding: FOI 14 – Complaint not upheld.
View PDF of Decision Notice FS50169994

Case Ref: FER0143741
Date: 07/11/2007
Public Authority: Mid Suffolk District Council
Summary: The complainant inspected information on a planning application at the public authority’s offices, but then submitted a written request for all information relating to it but not generally available for public inspection. The public authority informed the complainant that no further information was held, which was the basis of the complaint to the Commissioner. The Commissioner found that there was no further information held, but the public authority had responded outside the 20 working day response time required by the Environmental Information Regulations 2004.
Section of Act/EIR & Finding: EIR 5(1) – Complaint not upheld, EIR 5(2) – Complaint upheld.
View PDF of Decision Notice FER0143741

Case Ref: FS50082768
Date: 07/11/2007
Public Authority: Devon and Cornwall Constabulary
Summary: The complainant requested six pieces of information connected with the investigation of a serious allegation that was made against him. The public authority refused to provide this information citing Section 30(1) (Information obtained during an investigation), Section 38 (Health and Safety), Section 40(1) (Personal Data relating to the applicant) and Section 40(2) (Unfair Disclosure of Personal Data). In relation to the withheld information, the Commissioner has decided that the names of the accusers and the officers involved in the investigation, arrest and detention of the complainant constitues his personal data and that DCC appropriately cited section 40(1) in relation to this information. However the Commissioner is also of the view that Section 40(5) should have also been claimed over this information and that the public authority therefore was not compelled to comply with section 1(1)(a) and confirm or deny if this information was held. The Commissioner was advised that a considerable amount of information within the scope of the request had already been disclosed to the complainant under the Data Protection Act 1998 (‘the DPA’) during 2002. The Commissioner has identified a limited amount of additional information that constitutes the complainant’s personal data that was not disclosed to him at that time. He will now make a separate assessment under section 42 of the DPA in respect of that information. DCC breached section 1(1)(a) in failing to inform the complainant that the whereabouts of the accusers was not held. DCC appropriately cited section 40(2) in relation to information about the complainant’s wife and son and to information about the whereabouts of officers who dealt with him who had retired at the stage the request was received. However, the Commissioner has decided that DCC inappropriately refused to provide information about which station serving officers involved with the complainant were assigned to at the time of the request on the basis that section 40(2) applied. He has further determined that section 30(1) was inappropriately applied to that information. He has therefore ordered DCC to release the station addresses of serving officers who dealt with the complainant.
Section of Act/EIR & Finding: FOI 1 – Complaint upheld, FOI 17 – Complaint upheld, FOI 30 – Complaint upheld, FOI 40 – Complaint partially upheld.
View PDF of Decision Notice FS50082768

Case Ref: FS50100139
Date: 01/11/2007
Public Authority: Legal Services Commission
Summary:The complainant had complained to the public authority about his ex-wife’s claim for legal aid in relation to a Family Dispute Resolution Hearing. As a result of this complaint, it was discovered that his ex-wife had been receiving legal aid which she was not eligible for. The certificate was revoked and the complainant informed of this. He then made a request for details regarding the investigation into the matter and whether the public authority had referred it to the police for consideration of prosecution. The public authority refused to provide the details of the outcome of the investigation and chose to neither confirm nor deny whether the matter had been referred to the police. Initially the section 40 exemption was cited for both items but on internal review the public authority chose instead to not confirm or deny whether the matter had been referred to the police on the basis that the section 31(1)(g) and (2)(a) exemption applied. The Commissioner’s decision is that the pubic authority correctly applied the section 40 exemption in both instances and that it was therefore also correct to neither confirm nor deny whether the referral to police was made.
Section of Act/EIR & Finding: FOI 17 – Complaint upheld, FOI 40 – Complaint not upheld.
View PDF of Decision Notice FS50100139