Dealing with requests
Part 2 – Dealing with requests
Any written request for information will be covered by FOIA. It should be noted that where the official receiver is holding the information requested solely by virtue of his/her position as statutory office holder, FOIA does not apply - see paragraph 81.19.
It is not necessary for the request for information to refer to the FOIA for the provisions of the Act to apply so staff must be alert to the possibility that the guidance in this chapter may need to be applied to any requests for information.
The provisions of the FOIA will apply to information whenever it was created and which is still held by The Service at the time the request is made. This may include archived and other stored or difficult to retrieve information that is not included in the publication scheme.
Three requirements must be fulfilled before a request for information is dealt with under the FOIA. These are: [note 1]
a) The request must be in writing.
This includes electronic means as long as it is legible and capable of being used for subsequent reference, thus requests made by facsimile transmission or by e-mail should qualify as a request in writing.
b) It must state the name of the applicant and provide an address for correspondence.
Staff will not need to confirm the identity of the applicant for FOIA requests as is the usual practice for ‘subject access requests’ under the DPA. The applicant may use any name, although the intention of the legislation is that the applicant should use their own name. (See also paragraph 81.31 on repeat and vexatious requests). An e-mail address is an ‘electronic address’ and therefore fulfils the requirements of the Act but may not be sufficient if some or all of the information requested is to be provided in paper format. A terrestrial address can be requested from the applicant if this is the case.
c) It must describe the information required
This does not mean that the document in which the information is recorded needs be specified by the applicant, only the information that is being sought. If further information is required from the applicant to identify and locate the information requested, staff members, as part of the general duty to provide advice and assistance, should request the additional information as soon as possible and in any event within the 20 working days deadline. If after a request for clarification has been made the applicant does not provide sufficient detail to enable the information to be located staff are under no obligation to process the request any further, but should be aware of the obligation on assisting requesters set out below.
The Service has a duty to provide advice and assistance, so far as is reasonable, to persons who have made, or are proposing to make a request. [note 2]
In providing advice and assistance The Service must comply with the code of practice referred to under section 45 FOIA . Under this section The Service must (amongst other things), ensure the provision of advice and assistance to persons who make or propose to make requests for information, and provide information about the procedures for dealing with complaints and the internal review process. [note 3]
Further information on assisting requesters may be found in the ICO awareness guidance HERE.
If the applicant does not describe the information sought in a way that would allow it to be identified or located, or if the request is ambiguous, The Service should provide assistance to the applicant to enable him to describe more clearly the information sought and that this should be done as soon as possible, preferably by telephone, fax or e-mail.
The key requirement is to establish a dialogue with the applicant and it would be helpful to explain what information is readily available, or to explore ways in which the request could be made more specific. A written record of any conversations with the applicant should be kept.
Where assistance has been provided to the applicant but they fail to describe the information requested so as to enable it to be located and identified, staff are not expected to seek any further clarification. In such cases, any information relating to the application which can be identified and located should however be provided, as failure to do so will constitute a breach of the duty to communicate information. [note 4]
(Amended December 2010)
The applicant may express a preference as to the means for communication of the information requested. The applicant can ask for the information in permanent form, for a reasonable opportunity to inspect a record containing the information or for a summary of the information in permanent form. [note 5]
The applicant is not restricted to one means so he may inspect and copy, for example. Where an applicant expresses a preference, staff should provide the information in accordance with that preference so far as is reasonably practicable taking into account all the circumstances. If, for example, the cost of providing the information in the manner requested is higher than it would be producing it in another format then this should be explained to the applicant and the opportunity provided for him/her to opt for the cheaper option.
The expression of a preference by the applicant does not create a general right of access to records, just to the information described in the request, in accordance with section 8(1)(c) FOIA In many cases, it may be that to supply copies of documents following a request is the best way to provide the information asked for. [note 6]
It must be noted that the rights provided under section 1 of the FOIA are for ‘information’ rather than ‘documents’. The requester may express a preference but there is no absolute right to copies of documents holding the information sought.
Further information on means of communication may be found in the ICO awareness guidance HERE.
There is no obligation under the FOIA to produce new material or ‘create’ new information from that which is held in order to comply with a request, even if this can easily be done from other information that is held. However, staff should provide advice and assistance as outlined in paragraph 81.10. The Information Commissioner (IC) considers that where a request can be complied with by compiling constituent parts of information that may be spread across a number of locations, this does not constitute new or ‘created’ material, rather it is information retrieval or extraction.
In a recent Decision Notice issued by the IC a public authority were requested to provide a list of all documents disclosed under FOIA over a given period. The public authority refused on the basis that such a list did not exist, they did not operate a system for tracking FOIA requests and that individual requests were dealt with by various parts of the authority. The IC did not accept this argument and concluded that the information was held, albeit not in the form originally requested, and that the public authority had a duty to disclose the information.
A request must be dealt with promptly and in any event, not later than the 20th working day following the date of the receipt of the request. A failure to deal with a request within 20 working days will be a breach of the Act. [note 7]
The Service has an internal target to deal with correspondence within 15 working days and staff should provide the information within that target other than in exceptional cases (see below). The fact that it may take some time to retrieve a file would not be a reason in itself for failing to comply with the target unless the volume of information requested is substantial or if legal advice is required before disclosure is made.
The time period will start to run the day after the request is received (provided that the request contains the three requirements in paragraph 81.09).
There are three situations when the response time will be suspended:
a) where the applicant e-mails a request for information, which can only be provided in paper form and no terrestrial address has been given. The response time will be suspended until the address is provided.
b) if a fee is to be charged the 20 working days will resume running when the fee is received. (see Part 4).
c) if the description of information requested is not sufficient to enable The Service to identify and locate the correct information. The Service might inform the applicant that further information is required and the 20 working days does not start until that information has been supplied.
The 15 working day internal target should similarly be treated as suspended in these circumstances.
Further information on response times may be found in the ICO awareness guidance HERE.
(Amended December 2010)
A request is received when it is delivered to one of The Insolvency Service’s offices, or when it is delivered to the inbox of a member of staff. It is not the date that the request is passed to the appropriate person for dealing with it.
In the case of e-mails where there is an automated ‘out of office’ message providing instructions on how to re-direct a message, the request would not be treated as received until it was sent to the alternative contact. Wherever possible requests should be directed to a generic section, directorate or office email addresses to avoid situations where delays can occur due to individuals being unable to deal with requests.
The Service operates a generic email inbox to which all FOIA (and DPA) requests should copied for logging and monitoring purposes. This is FOI@insolvency.gsi.gov.uk
The timescale to provide the information requested does not allow much time for considering whether:
a) the request falls to be dealt with under the FOIA, EIR or the DPA;
b) whether the information is held (including liaising with other sections if appropriate);
c) whether there is a non-absolute exemption and there are public interest and prejudice considerations;
d) to work out a fee (if one is to be charged) and
e) to collate the information and draft the response.
It is therefore important for staff to recognise and deal with requests promptly.
In most cases it is anticipated that staff will be able to respond to requests for information under the FOIA by providing the information by letter or e-mail within the 20 day allowed by the FOIA and in accordance with Insolvency Service internal targets. Where more research is needed before a reply can be produced, an interim reply should be sent within 5 working days indicating when a substantive reply can be expected.
Where it is apparent that a particular request will take longer than the 20 working days allowed under the FOIA, perhaps due to the complexity, volume or consideration of public interest issues, the normal timescale for response may be extended. Where a substantive response will take longer than 20 working days the following action must be taken: [note 8]
a) Issue a Refusal Notice under section 17 of the Act (within the 20 working days).
b) State the exemption (if applicable) that is being considered and stating that more time is required (for example to collect the information or consider the public interest balance).
c) Include an estimate of when a substantive response will be sent.
d) Either disclose the information in the substantive response when the information becomes available or issue a further Refusal Notice when the decision to refuse has been made.
This extended timescale must be reasonable, and guidance issued by the IC suggests that a reply within a further 20 days should be possible.
FOIA impacts on The Service in two different ways depending on whether the information requested is held by an official receiver, in his capacity as a statutory office holder, or otherwise held within The Service.
The official receiver
The FOIA does not apply to courts and tribunals because these are governed by their existing rules (the Civil Procedure Rules in respect of the High Court and county courts). The Insolvency Act 1986 states that "in the exercise of the functions of his office, a person holding the office of official receiver shall also be an officer of the court in relation to which he exercises those functions" and when he/she is thus acting as statutory office holder, the official receiver is accountable to the court in respect of actions taken. The official receiver is not listed in the schedules of FOIA and is therefore not a "public authority" for the purposes of the Act. [note 9]
The official receiver is acting as a statutory office holder when he/she is provisional liquidator, liquidator, interim receiver, receiver and manager, trustee, nominee in a FTVA or a supervisor in a voluntary arrangement, and also if carrying out an investigation (regardless of whether he/she is still liquidator or trustee).
As a consequence it is considered that, notwithstanding any exemptions applicable under FOIA, all files created by the official receivers when acting in any of the above capacities are excluded from the provisions of FOIA. The official receiver should still consider any request to disclose information contained in his/her files with reference to the DPA as far as requests for personal information are concerned, or in accordance with the provisions of the Insolvency Act and Rules and other relevant legislation as outlined in Chapter 47 Disclosure.
It is important that the DPA provisions are still applied to any personal data held and the guidance in chapter 81A must be applied. Otherwise, although the official receiver should endeavour to apply the spirit of FOIA wherever possible, the restrictions in the insolvency legislation regarding who is entitled to the information, as well as the guidance in chapter 47 will need to be taken into account when deciding whether the requested information can be given in full or part. For example, if an applicant, who is not a creditor of the insolvent, requests a copy of the list of creditors rule 12A.54 of the Insolvency Rules 1986 must be considered. [note 10]
Annex A contains a flow chart for dealing with requests for information where the information requested contains personal information.
Where the official receiver is acting as statutory office holder and instructs agents, a request for information that may be held by agents should be considered for disclosure in the same way as if the official receiver was holding the information himself/herself. The provisions on disclosure of personal information under the DPA and chapter 47 considerations will also apply.
(Amended December 2010)
Where the official receiver decides not to disclose information because the FOIA is not applicable, but is aware that part or all of the information requested is held elsewhere within The Service, the request should be sent to the FOI/DPA Compliance Manager (Jim Digby) at FOI@insolvency.gsi.gov.uk for recording and allocation to the appropriate information holder.
Unlike the provisions of the DPA, there is no requirement for the applicant to make separate requests for information to both the official receiver and The Service as an FOIA request potentially covers all of the information held by BIS and The Service, regardless of where it is held or by whom.
(Amended December 2010)
Where there is a possibility that relevant information is held by BIS, the request should be forwarded to the FOI/DPA Compliance Manager (Jim Digby) at FOI@insolvency.gsi.gov.uk.for logging and forwarding to the IRU at BIS.
There are some occasions where the official receiver is not acting as statutory office holder and where FOIA must then be considered. If the official receiver is holding information in the capacity of a civil servant, as a manager of staff, for example, FOIA as well as DPA will be relevant. For example when the official receiver is sending leaflets to assist an insolvent (e.g. ‘What happens when you attend the official receiver’s office’) the official receiver is then acting as a civil servant.
(Amended December 2010)
Where an official receiver has submitted a report to IES relating to disqualification proceedings, a BRO application or a statement of facts relating to a criminal allegation, FOIA will then apply to all the information held by IES for that disqualification, criminal allegation or BRO application and the FOI exemptions will have to be considered. In such cases IES Technical Team have advised that it will be for the official receiver to deal with any request for information under the FOIA, with if necessary advice sought from Enforcement Technical Team on disclosure. Reference should also be made to chapter 15 of the Enforcement Technical Guidance for further information.
The Insolvency Service generally
(Amended December 2010)
Although FOIA may not be relevant to official receivers in many cases, it does apply to all information held by the various parts of The Insolvency Service - Corporate and Business Services; Centralised Business Services; Investigations and Enforcement Services; Official Receiver Services; Redundancy Payments Service, Policy and Strategy, Planning and Communications. All staff must therefore be aware of the provisions of FOIA including the timescale for responding and the relevant exemptions, and the need to copy all requests for information held by The Service to The Service’s Compliance Manager (Jim Digby) at FOI@insolvency.gsi.gov.uk as part of The Service’s policy.
(Amended December 2010)
To save staff time and for ease of accessibility, frequently requested information should be made available via The Insolvency Service publication scheme with each Service Director considering the information that is owned by that Directorate and maintaining up to date information for publication in the scheme. The Service’s FOI & DPA Compliance Manager is responsible for ensuring The Service’s compliance with the requirements of the publication scheme. Directorates and business teams with responsibility for producing and updating information for publication on The Service’s website should copy all new and updated information to FOI@insolvency.gsi.gov.uk to ensure that the publication scheme is kept up to date.
(Amended December 2010)
Where a request relates to information held by more than one section within The Service, it is important that staff within the different sections liaise promptly to ensure that the response is sent to the applicant within the FOIA deadline. To assist this process all requests received by any part of The Service should be copied to The Service’s Compliance Manager (Jim Digby) at FOI@insolvency.gsi.gov.uk .The FOI/DPA Liaison Officer within Technical Section will assist in the role of collecting, collating and responding to requests where this is appropriate.
The FOIA provisions will apply to information that has been sent to The Service Directorates by the official receiver. This will include information given as part of a request for advice or in any report submitted to IES, regardless of whether FOIA was applicable whilst the information was held only by the official receiver.
(Amended December 2010)
Any part of The Service may receive telephone or written requests for information from television, newspaper or other media sources, related to the policies and activities of The Service, personal or corporate insolvency cases or where there may be some public or historical interest.
Where an official receiver’s office receives any verbal request for information from any media source, the caller should be referred to The Service’s Press Office within Strategy, Planning and Communications. The Press Office may be contacted at Press.Office@insolvency.gsi.gov.uk or by telephone on 0207 637 6279.
Written requests for information from the media, whether or not the FOIA is directly referred to, should be sent to The Service’s FOI inbox at FOI@insolvency.gsi.gov.uk .
The Service does not have to comply with a request for information if it is repeated or vexatious. (It should be remembered that the FOIA provisions do not apply to the official receiver where he/she is holding the requested information solely in the capacity of statutory office holder – see paragraph 81.19). If possible, where an applicant makes an otherwise valid request but uses the opportunity to vent their frustration, the request should still be considered and disclosure made if appropriate. [note 11]
The following points should be taken into account when considering whether a request is vexatious:
In those cases where it is clear that there is no additional information available to the applicant, and the applicant has been advised of this, on receipt of the third such request, then there is an arguable case that the request is vexatious and the request can be refused giving section 14 FOIA as the reason for the refusal.
The applicant must be provided with details of The Service’s complaints procedure and be informed of his right to apply directly to the Information Commissioner.
Further information on vexatious and repeated requests may be found in the ICO awareness guidance HERE.
FOIA section 14(2) states that there is no obligation to comply with a subsequent identical or substantially similar request from the same person unless a reasonable interval has elapsed between those requests. The ‘repeat request’ refusal should be used in preference to refusal as a ‘vexatious request’, when dealing with individuals that are repeatedly seeking information. This is much less likely to antagonise the applicant than if he/she is labeled as vexatious. If a request is received for the same or substantially the same information within 6 months of a previous disclosure, it may be considered reasonable that there is no obligation to comply with the request. The applicant should be informed that the request is refused under FOIA section 14 (2).
A template for responding to requests under this section is available HERE.
A request for information may only be refused, where the FOIA provisions apply, if:
If information is refused because it falls into one of the absolute or non-absolute exemptions, the applicant must be informed by issuing a refusal notice under section 17 within the time limit (20 working days under the FOI but 15 working days under the internal target). [note 12]
The notice must state:
In addition some non-absolute exemptions require that a prejudice test is applied (in addition to the public interest test) and the prejudice must be explained within the refusal notice.
Where the requested information is not held The Service might simply advise the applicant of this fact. This is not a refusal, rather a negative response, and the reply does not require the issue of a refusal notice).
Many of the exemptions dealt with in Part 3 of this chapter specify whether in responding to a request The Service is required to confirm whether it holds the information being requested. In some cases merely confirming that information is held will breach the basis of the reason for the exemption.
Details of The Service's complaints procedure, right of review and the right of appeal to the Information Commissioner for a decision as to whether the request for information has been dealt with in accordance with the requirements of part 1 of FOIA should also be provided.
Most of the exemptions applicable to The Service may be responded to by using templates which can be accessed via the Technical Section's intranet pages, by the links within this chapter or in Annex A
The code of practice issued by The Lord Chancellor should be followed by public authorities. It is not necessary for staff to have a detailed knowledge of that code but The Service’s policy and guidance on the maintenance and destruction of records must be followed. Where a request has been made for information under FOIA or where someone makes a subject access request under the DPA, it is a criminal offence to alter, deface, block, destroy or conceal any record, or part of it, to prevent disclosure of all or part of the information in it (provided that the applicant would have been entitled to the information). The individual employee who carried out such action would be liable to prosecution. [note 13]
The IC is responsible for monitoring the compliance of public authorities with the FOIA, and the Codes of Practice. The IC has several enforcement options under the FOIA and these are explained below. If any notice or correspondence is received from the IC, the FOI/DPA Liaison Officer in Technical Section should be immediately informed and provided with copies of the documents.
Any person who is dissatisfied may apply to the IC regarding The Service’s compliance with the requirements of the FOIA in respect of a request for information, and will be referred to as ‘the complainant’. This is most likely to be where the complainant does not agree with the exemption that The Service has relied upon for not providing the information. The IC is obliged to consider an application unless he considers that the complainant has not exhausted any complaints procedure provided by The Service, that there has been an undue delay in making the application, that it is frivolous or vexatious or that the application for information has been withdrawn or abandoned. [note 14]
The IC will either notify the complainant that he has not made any decision under section 50 resulting from the application and his grounds for not doing so, (there is no need for the IC to contact The Service as he is effectively rejecting the complainant’s request) or serve a ‘decision notice’ on both the complainant and The Service informing them of the decision that has been made. If the IC decides that The Service has failed to communicate information or to provide confirmation or denial that information is held. The decision notice will specify the steps to be taken for compliance and the period in which those steps must be implemented. In practice, a decision notice is more likely to be issued in those cases where the IC feels that The Service has failed to comply with FOIA requirements for providing the information requested.
If the IC has received an application from a complainant for a decision under section 50 FOIA and he requires further information to determine whether The Service has complied with the FOIA provisions, he may serve an ‘information notice’ requiring that additional information should be provided. This notice must be complied with within such time as is specified in the notice. Where the IC is of the opinion that The Service has failed to comply with an information notice the IC will certify this failure in writing to the court. The court may then deal with The Service as if it had committed a contempt of court. [note 15]
The IC also has powers of entry and inspection as well the power to seize records. [note 16]
All information notices issued by the IC must be referred immediately to the FOIA/DPA Liaison Officer at Technical Section.
Decision and enforcement notices served on a government department (including agencies) may be overruled by an ‘accountable person’, such as a Minister, if he provides the IC with a certificate stating that he has formed an opinion ‘on reasonable grounds’ that there was no failure to comply. [note 17]
There is a right of appeal by The Service to the Information Tribunal against any notice issued by the IC. Further, any party to an appeal to the Information Tribunal under section 57 may appeal from the decisions of the Tribunal on a point of law to the appropriate court. [note 18]
Information on the work of the IC is available from the ICO website; www.ico.org.uk
The address and contact details of the ICO are:
Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.
DX: 20819 Wilmslow
Telephone: 01625 545 700 (switchboard) or 01625 545 745 (enquiry/information line)
Fax: 01625 524510