Mr C Bell
E:
By Email Only / This matter is being dealt with by: T HoldenC PrestonF ZohraKnowledge & Information Management Team
Knowledge & Information Management Team
10th Floor East, City Hall
Email:
Tel No: 0207 641 6451333285783921
Fax No: 0207 641 2872
Date: 27th June 2013
DearMr Bell
Re: Request for Internal Review – Request 10647
Thank you for your dated 30th May 2013regarding the response to your recent request to the Council (our ref: 10647).
In your you asked for an internal review of the handling of your Request. I have summarised the details of your appeal below:
- The council failed to provide the document referred to in response to Question 1
- The council has incorrectly applied the exemption at Section 40(2) in respect of Question 3
Internal Review Procedure
I am sorry that you are dissatisfied with our handling of your requests and I have investigated your complaint in accordance with the.
Should you remain dissatisfied with the handling of your request, you are entitled to contact the Information Commissioner under of the . The contact details are provided at the end of this letter.
Response
Background
On 29th April 2013, the council received a request for information via the WhatDoTheyKnow website. The request was logged by the council on the same day. The council sent an acknowledgement email to the applicant, stating the reference number of the request (FOI 10647) and advising that the target date for a response was 29th May 2013.
On 30th May 2013, the council provided a response to the request. In respect of Question 3, the council issued a Refusal Notice in accordance with Section 17 of the Act, citing the exemption under Section 40(2): Personal Information
On the same day (30th May 2013), the council received an email expressing dissatisfaction with the response in respect of Question 3. The email also advised that the document referred to in response to Question 1 was missing. This review has therefore focussed on the extent to which the requested information is held, and if the exemptions cited had been correctly applied. It has also sought to locate the missing document, as advised by the applicant.
Internal Review
In the course of this review I will refer to relevant provisions of the which are provided in full under the Advice & Assistance section of this letter.
- Section 40(2): Personal Information
Under Section 1 of the Freedom of Information Act 2000 individuals have the right to request, and are provided with confirmation as to whether or not information is held by a public authority. Where information is held, it must be provided to the applicant, subject to any subject to any fees or exemptions that may apply.
Under Section 40(2) of the Act, information can be refused if, it is personal data as defined by the Data Protection Act 1998, and its disclosure would breach any of the principles contained therein. This is an absolute exemption. The council is therefore not required to carry out a public interest test in respect of this exemption.
In their response dated 30th May 2013, the council explained that the information held in respect of Question 3 was exempt from disclosure under Section 40(2). This was because of the small size of the information held by the council in respect of the request. In light of this, the council believed that disclosure would enable the identification of specific individuals, and that this would be in breach of the principles of the Data Protection Act 1998.
In his email dated 30th May 2013, the applicant challenged this assertion on the grounds. He stated that the question should be broken into two parts and that, as a result, the number of individuals falling within the scope of this request would be significant (in italics, quoted verbatim, numbered (a) and (b) for ease of reference):
"My question 3. This will not relate to a small sample. It will relate to
(a) the large number of children who are detained overnight by the police; not moved to local authority accommodation; and appear before court having been produced before the bench from court cells.
(b) The second part of the question relates to the small number, namely, those who are moved to LA accommodation pursuant to section 21 Children Act."
This review has therefore sought to establish to what extent, if any, the information held by the council meets these descriptions, and if so, whether or not the exemption at Section 40(2) was correctly applied.
In respect of part (a) of Question 3 (as set out above), Children's Services has confirmed that this information is not held by the council. This is because the information on the number of children detained by police is held by the Metropolitan Police.
This review finds therefore that the council failed to comply with Section 1 of the Act in that it did not confirm the information it held in respect of Question 3. As this information is not held by the council, the exemption at Section 40(2) was incorrectly applied. Consequently this aspect of the complaint is upheld.
In respect of part (b) of Question 3 (as set out above), Children's Services has confirmed that the number of children to which this applies is 5 or less. Given the small sample size involved, the council is satisfied that it would be possible to identify the individuals to whom this question relates and that to do so would be in contravention of the principles of the Data Protection Act 2000. This review therefore finds that the exemption at Section 40(2) was correctly applied in respect of this information. Consequently this aspect of your complaint is not upheld.
- Information Not Provided
This review has located the document that was referred to in response to Question 1. This should have been provided at the time. Please find attached a copy of the document. Please accept our apologies for any inconvenience this oversight and delay may have caused.
Other Matters Arising During Internal Review
- Section 10(1): Time for Compliance
Section 10(1) of the Freedom of Information Act 2000 states that a response to a valid request under the Act must be provided within 20 working days. This review notes that the target date for a response to the request was 29th May 2013. However the council did not respond to the request under 30th May 2013, in breach of the requirements to Section 10(1).
Advice & Assistance
In the course of this Internal Review I have made reference to the following provisions of the :
1. - (1) Any person making a request for information to a public authority is entitled-
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.
(2) Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14.
2. - (2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that-
(a) the information is exempt information by virtue of a provision conferring absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
(3) For the purposes of this section, the following provisions of Part II (and no others) are to be regarded as conferring absolute exemption-
(f) in section 40-
(i) subsection (1), and
(ii) subsection (2) so far as relating to cases where the first condition referred to in that subsection is
satisfied by virtue of subsection (3)(a)(i) or (b) of that section
3. - (2) For the purposes of this Act, information is held by a public authority if-
(a) it is held by the authority, otherwise than on behalf of another person, or
(b) it is held by another person on behalf of the authority.
10. - (1) Subject to subsections (2) and (3), a public authority must comply with section 1(1) promptly and in any event not later than the twentieth working day following the date of receipt.
This completes the internal review into the handling of your Request under the Council's complaints procedure. Should you be dissatisfied with our response, you are entitled to contact the Information Commissioner under of the . For your reference, I have provided his contact details below:
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Tel:0303 123 1113 or 01625 54 57 45
Fax: 01625 524510
Web:
Should you have any queries, please contact me at the address above.
Yours sincerely,
Knowledge & Information Management Team
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