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Thank you
I have recently sought an explanation from the Information Commisioner on the use of the Data Protection Act and the Freedom of Information Act in connection with this web-site.
Here is the response in full:
Your enquiry is as follows:
“Further to my telephone call to Noel this morning I confirm:
I have recently been in the 1st Tier Tribunal, and it has been suggested I request “casework” to assist.
I am involved in the setting up of a website to help Litigants in Person (LiPs) : link below
If you follow the site, to the discussion forum you will see there is a heading relating to obtaining information from “Freedom of Information”
We would very much appreciate official guidance as to how potential or actual LiP’s go about gaining information they require for litigation using the FOIA and/or the DPA.
If you would like to post some “official” guidance, we will post it on to the site
Alternatively we would like to be more informative than my poor efforts. and would apprecaite guidance from you.
Rgds
Jeff Lampert”
Please note, we have provided the following information to you in response to your enquiry and we would emphasise that it does not constitute official guidance. All official ICO guidance can be obtained on our website, http://www.ico.gov.uk. However, we are content for the contents of this correspondence to be distributed.
Freedom of Information
The FOIA is concerned with the transparency of information held by public authorities. It gives an individual the right to access recorded information held by public authorities at the time of receiving a request. The FOIA was principally designed to increase the general openness and transparency of information held by public authorities in regard to how they spend public money and how they make their decisions. However, it is important to note that the FOIA contains several ‘exemptions’ which may allow a public authority to withhold information in certain circumstances. More information on the exemptions within the FOIA can be found on our website using the following link:
How do I answer an information request?
Depending on the information being requested, the FOIA may not be a suitable legislative avenue for LiPs to invoke in order to obtain information in advance of a legal case. This is because the disclosure of information under the FOIA is considered to be to anybody that might ask for it, and thus would effectively be making the information publicly available. In general when considering a disclosure public authorities should not take into consideration who has made the request, or their reason for wanting the information. Therefore where it might be detrimental or inappropriate in some way to release information into the public domain then it would be exempt from disclosure under the FOIA. For further information read our guidance on consideration of requests without reference to identity or the reasons for the request.
Furthermore, there is an exemption available for legal professional privilege under section 42.
Where information is exempt from disclosure into the public domain under the FOIA then the public authority should issue a refusal notice under this Act. However where the information could be provided to a specific requestor, due to their particular reason for requesting it, and no other legislation would be breached by the disclosure, including the Data Protection Act 1998 (DPA98) then the authority could consider providing the information to that requestor outside of the FOIA. Where an authority chooses to do this it should be made clear to the requestor that the information is exempt under the FOIA, but in their particular case it is being disclosed outside of this Act. Please note that such disclosures are entirely at the discretion of the public authority and we would not be in a position to address a complaint about the refusal to provide information outside of the legislation we oversee.
Data Protection
The DPA98 is specifically concerned with the processing of personal data. “Processing” includes obtaining, holding, recording, disclosing or using personal data in any way. Personal data is data which relates to and identifies a living individual. The DPA98 imposes eight Principles of “good information handling” on organisations responsible for processing personal data (“data controllers”).
One of the rights that the DPA98 gives people is the right to make a subject access request (SAR). A SAR is a written request made by an individual under section 7 of the DPA98 to any data controller processing their personal data asking to be supplied with copies of that data. However it is important to note that there are exemptions within the DPA98 which may allow a data controller to not comply with such a request in certain circumstances. For further information please use the link below:
How to access your information
The courts have quite firmly asserted that the DPA98 is not designed as a mechanism for individuals to be able to demand evidence or documents they require for the purpose of legal proceedings. Individuals requiring specific information for those purposes are directed to the Criminal and Civil Procedure Rules (CPR). Part 31 of CPR provides individuals with an ability to apply to courts asking them to order the disclosure of information the individual requires for the specific purpose of legal proceedings.
If the courts have already turned down an individual’s requests under CPR, the individual is likely to need to appeal against that decision rather than trying to obtain the information by an alternate route.
There are various exemptions set out in the DPA98 that organisations are able to use in order to withhold personal data in response to subject access requests. Exemptions include (amongst others): confidential information regarding third parties, information subject to legal professional privilege, and information prejudicial to prevention and detection of crime, apprehension and prosecution of offenders and the assessment and collection of any tax or duty. The DPA98 does not however entitle a subject access applicant to demand to be informed: whether information was withheld in response to their request, what information was withheld, which exemptions were used, or how the exemptions were applied.
Further to this, the DPA98 entitles individuals only to be provided with copies of their personal data rather than with copies of entire documents or reports. Accordingly, individuals who are attempting to obtain information for use in particular litigation or prosecution are unlikely to be successful using section 7 of the DPA, and should be directed to use the Criminal and Civil Procedure Rules.
I trust this response has been helpful. If you require any further assistance, please contact me at: Casework@ico.gsi.gov.uk. In the subject field of your email please include the following text (including the square brackets) [Ref. XXXXXXXXXX], replacing the ‘X’ characters with your case reference number, including its three character prefix. This will add your email to the other information you have already sent to us about your case, and should occur automatically if you click the ‘reply’ button.
Through a very helpful lady at the Palace of Westminster we were recently directed to a number of web-sites.
One of these led us to: http://www.whatdotheyknow.com/
This site will show you the result of previous requests that have been routed through it, and make it very easy for you to make the request for the information you seek under the Freedom of Information Act.
I would suggest that you use it, as it will then publish the result of your request, so hopefully helping anyone that comes after you with a similar request.
If you are seeking information which is about yourself, make CERTAIN you also request this information under the Data Protection Act.
Otherwise you could be denied the information you are seeking by s40 of the Freedom of Information Act:
http://www.ico.gov.uk/upload/documents/library/freedom_of_information/detailed_specialist_guides/awareness_guidance%20_1_%20personal_information_v2.pdf
Using this Act may enable you obtain information that may otherwise be denied to you:
http://www.ico.gov.uk/for_organisations/freedom_of_information.aspx