Full case report
Harper v Information Commissioner
Reference Appeal No. EA/2005/0001
Court Information Tribunal
Judge John Angel (Chairman) and John Randall and Henry Fitzhugh (lay members)
Date of Judgment 15 Nov 2005
Freedom of information – Delay beyond statutory period in responding to request – No remedial steps ordered – Whether Information Commissioner ought to have required remedial steps – Whether information held – Position of deleted electronic information
Mr Harper requested, under the Freedom of Information Act, that the Royal Mail confirm that there had been no requests for access to his personal file between 23 October 2002 and 25 June 2003. The Royal Mail responded that they held no record of the information asked for. Mr Harper complained to the Information Commissioner that the Royal Mail were in breach of their duties under the Act as they did in fact hold this information, providing evidence of this. The Commissioner’s Decision Notice found that the Royal Mail’s response had complied with their duty under s.1(1) of the Act, but that, as it had not been sent until after the 20th working day since receipt of the request, they had not complied with their duties under s.10(1) of the Act. The Commissioner found that the Royal Mail had since confirmed that it did not hold the information requested and so he did not require any remedial steps to be taken. Mr Harper appealed to the Information Tribunal.
1) Whether, having determined that the Royal Mail had contravened s.10(1) of the Act the Commissioner ought to have required any remedial step to be taken by the Royal Mail.
2) Whether the Commissioner was wrong to accept that the Royal Mail did not hold the information requested by Mr Harper.
1) Under s.50 of the Act the Commissioner had no power to require remedial steps to be taken. This was one of the first requests that the Royal Mail had received under the Act and was not immediately recognised as such. Once it had been, legal opinion was sought. As soon as the Royal Mail accepted that Mr Harper’s request was a valid request under the Act the appropriate FOI officer asked the manager for personnel files to find the information. She consulted someone in IT. As a result the response was 3 days late. In the circumstances, although this was a breach of s.10, even if the Commissioner had power under s.50, it was very unlikely that he would have exercised it; nor was this the sort of breach which would necessitate the Commissioner using any of his other powers.
2) The Royal Mail did not hold the information at the date of the request. Although it is likely that they held it at some time, due to their periodical deletion of databases the information was no longer held.
The interesting aspect of this decision is the Tribunal’s comments on deleted electronic information. It found that information which had been deleted but which could still be accessed may, depending on the circumstances, be information “held” by the public authority for the purposes of the Act. As to the steps public authorities should take to retrieve such data: “Simple restoration from a trash can or recycle bin folder, or from a back-up tape, should normally be attempted… Any attempted restoration that would involve the use of specialist staff time, or the use of specialist software, would have cost implications, which could be significant. In that event, the exemption arising from exceeding the appropriate limit, set from time to time under Section 12 of the Act, might be relied upon by an authority. Also it is relevant that the 20 day time limit itself gives an indication of the period for which an authority should strive diligently to comply with a request.”
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.