Information Tribunal finds ICO decision was "wrong in law" in upholding Nottingham City Council's Refusal notice

This decision was published on the 28th Sept, but was only published this week....one of those decisions you read and think ouch!...... It is another important decision that everuyone should read and does again expose some problems at with the ICO's approach to investigating and serves as a "what happens when things go really wrong with an FOI request" example from a public authroity perspective.

The finding was:

The Tribunal finds that the Information Commissioner (IC) was wrong in law in upholding Nottingham City Council's Refusal notice becuase the decision notice was based in a finding of fact which the IC accepts is not correct and that the decision notice cannot stand.

A new decision has been substitued requiring the release of documents. This is also the first case were the public authority (The Council) has been ordered to pay the litigants costs (allowed under the Tribunal Regs). The Tribunal has also recommended the Commissioner issue a practice recommedation (under S48 of the FOIA). The lack of practice notices issues by the ICO is someting I've flagged up before and metioned in my evidence to the Select Committe inquiry into FOI, an FOI request that I made to the ICO last year showed that at that time (Nov 2005) none had been issued and I'm not aware of any being issued since.

At 27 pages this is a long decision but is important reading for practitioners seeking to underdstand how the issue of "no information held" responses need to be carefully managed, reponses stating information is held by another body (in this case a school) must be proved to be correct, as in this case information was held but its existence was not communcicated the applicant. The whole process does appear to have been very convoluted and drawn out partly due to the Council's interaction with the Tribunal proccess and is hardly good PR for the Councils approach to FOI. To quote -

The Tribunal is dismayed at the way the request has been handled and the conduct of the Council since the commencement of this appeal. The Council appears to have mislead Dr Bowbrick and then the IC during his investigation.

Due to the nature of new information coming to light during the tribunal process the decision makes an important ruling on whether exemptions can be claimed before the tribunal for the first time (para 53) - it considered it must consider any exemption claimed even if arising for the first time.

Read the full Tribunal Decision