DoI Rapped by Info Commissioner

The DoI failed to prove that it carried out any searches for information sought under FoI, it also refused that request without proper justification.

A ruling by the Information Commissioner has also criticised how it engaged with an appeal.

The FoI related to a request for internal and external correspondence, details of meetings and agreements relating to a piece of land adjacent to the MER terminus in Ramsey by Parsonage Road.

That initial application was on October 4 2022.

After seeking further clarification on what land the request related to, the DoI refused the request saying it didn’t own the land.

However, following a review, the DoI said it did own the land but negotiations were ongoing and said ‘the information is exempt from disclosure under section 30 of the Act as disclosure would be likely to prejudice the commercial interests of the DoI’.

Following this, the applicant applied to the Info Commissioner to review the decision on November 23 2022, with the IC writing to the DoI later that day, with a deadline of December 8.

The Info Commissioner said: ‘The response received on December 8 was incomplete and on December 29, further information was requested from the public authority. Although the provision of that information was requested by January 6 2023, it was not received until January 18 2023.’

The Maps

After the initial request, the DoI asked the applicant to supply further details about what land near Parsonage Road they were inquiring about, saying ‘a google map image would be most helpful’.

This is despite the subject title of the request being ‘land adjacent to MER terminus in Ramsey by Parsonage Road’.

The IC said: ‘The Commissioner concludes from that email, therefore, that either the request submitted online on October 4 did mention “Parsonage Road”, or the public authority knew what “land” the applicant was referring to.’

The report added that the applicant then sent a google map image which identified the land, meaning it knew which piece of land was the subject of the request.

However, when this was forwarded to the relevant department, a different map was sent, resulting in the DoI saying it didn’t belong to the gov and as such refused the request.

Appeal

The applicant then contacted the DoI again on October 27, saying that the land was owned by the Department of Community, Culture and Leisure, the predecessor to the DoI.

After another check, on October 31 the DoI realised it did in fact own the land.

The IC said: ‘There is no indication that any search was undertaken for other information sought in the request, in particular minutes.’

Later on October 31, the emails were said to have been “glanced over” and it was decided that “it looks like its all commercially sensitive”, this was subject to a “more detailed look at the emails tomorrow”.

On November 1 a refusal notice was issued saying that to release the info could be damaging to the DoI’s commercial interests.

No Searches

The Info Commissioner said that the DoI provided no record of searches and that while some emails were sent to the IC, ‘there is no indication that any search was undertaken for other information sought in the request’.

Therefore, the IC said: ‘In the absence of search records evidencing what searches occurred, the Commissioner cannot conclude that the public authority undertook ‘reasonable steps’ to find the information sought.’

The IC also said that it had to consider whether the DoI was right to deny the request, but noted that it is not its ‘function to create that justification’, that onus lies with the DoI.

Furthermore, the IC said that DoI had failed to:

• show that disclosure of the info sought would result in prejudice to the commercial interests of any person;
• show that the chance of of prejudice being caused by a disclosure of the info would be more than hypothetically possible
• show how the public interest in disclosure of the info would be outweighed, providing only general comments, other than focussing on the info requested

The DoI also failed in its responsibility due to the time it took to respond.

Decision

Overall, the IC found that the DoI failed to demonstrate whether, or what, searches were undertaken for all the information sought. That it failed to search for the correct information in the first instance due to its own failure to relay the correct image to the relevant department, and erroneously refused the request and failed to justify its refusal.

As such it has 30 days from the notice to undertake searches to identify where it has located all of the information, or to  supply the information, or to provide a further refusal notice and record all aspects of its rationale to justify refusing to give each item requested, in accordance with the code of practice.

The IC has also warned that all bodies need to be aware of their responsibilities under the code of practice and that a future breach could be met with enforcement action.