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Public authorities can destroy information after a Freedom of Information request for it has been made, the privacy regulator has said.
The Information Commissioner's Office (ICO) said, though, that authorities can only destroy the information if the material was already scheduled for destruction before the deadline for fulfilling that request.
The ICO has published guidelines for authorities on how they should treat requests for information. Under Freedom of Information (FOI) law, the public have a right to access information held by public authorities.
The ICO has confirmed that authorities cannot habitually destroy information after a request has been received then write to the requester saying that they no longer have the information. That, it said, would be an offence.
"It will … be a criminal offence to conceal or destroy information if this is done with the intention of preventing disclosure," said the ICO guidance. "If information is held when a FOIA [Freedom of Information Act] request is received, destroying it outside of your normal records management policies will result in a breach of the Act."
The regulator did say, though, that authorities are allowed to delete information that is the subject of a request, as long as that information was scheduled to be deleted before the deadline for responding to the request.
"You do not have to release the information if it is scheduled to be destroyed under your usual retention and disposal schedules before you are due to respond to the request," said the guidance. "If the decision to delete or destroy information was prompted by the request, or if destruction is scheduled for a date later than the 20 working day deadline for responding, this cannot apply and you must still consider the request in the usual way."
Though to destroy the information would be legal, the ICO said that it would not be good practice and urged authorities to keep any information that is requested and to consider the request.
"As a matter of good practice, you should always suspend the destruction of requested information and consider the request in the usual way," it said.
The ICO referred to the section 46 code of practice which covers this area. It says: "if a record due for destruction is known to be the subject of a request for information, destruction should be delayed until disclosure has taken place or, if the authority has decided not to disclose the information, until the complaint and appeal provisions of the FOIA have been exhausted".
The ICO warned, though, that the same exception does not occur in the Environmental Information Regulations, which govern access to information on issues such as pollution, air quality and land use.
"The position for environmental information under EIR is different," said the guidance. "Regulation 5(1) says that you must make information that you hold available on request. Regulation 12(4)(a) provides an exception for information not held at the time the request is received. There is no exception for information that is held when the request is received but is due for routine destruction shortly afterwards."
"You must therefore delay destruction of the information and consider the request in the usual way," said the guidance.
The Information Commissioner's Office (ICO) said, though, that authorities can only destroy the information if the material was already scheduled for destruction before the deadline for fulfilling that request.
The ICO has published guidelines for authorities on how they should treat requests for information. Under Freedom of Information (FOI) law, the public have a right to access information held by public authorities.
The ICO has confirmed that authorities cannot habitually destroy information after a request has been received then write to the requester saying that they no longer have the information. That, it said, would be an offence.
"It will … be a criminal offence to conceal or destroy information if this is done with the intention of preventing disclosure," said the ICO guidance. "If information is held when a FOIA [Freedom of Information Act] request is received, destroying it outside of your normal records management policies will result in a breach of the Act."
The regulator did say, though, that authorities are allowed to delete information that is the subject of a request, as long as that information was scheduled to be deleted before the deadline for responding to the request.
"You do not have to release the information if it is scheduled to be destroyed under your usual retention and disposal schedules before you are due to respond to the request," said the guidance. "If the decision to delete or destroy information was prompted by the request, or if destruction is scheduled for a date later than the 20 working day deadline for responding, this cannot apply and you must still consider the request in the usual way."
Though to destroy the information would be legal, the ICO said that it would not be good practice and urged authorities to keep any information that is requested and to consider the request.
"As a matter of good practice, you should always suspend the destruction of requested information and consider the request in the usual way," it said.
The ICO referred to the section 46 code of practice which covers this area. It says: "if a record due for destruction is known to be the subject of a request for information, destruction should be delayed until disclosure has taken place or, if the authority has decided not to disclose the information, until the complaint and appeal provisions of the FOIA have been exhausted".
The ICO warned, though, that the same exception does not occur in the Environmental Information Regulations, which govern access to information on issues such as pollution, air quality and land use.
"The position for environmental information under EIR is different," said the guidance. "Regulation 5(1) says that you must make information that you hold available on request. Regulation 12(4)(a) provides an exception for information not held at the time the request is received. There is no exception for information that is held when the request is received but is due for routine destruction shortly afterwards."
"You must therefore delay destruction of the information and consider the request in the usual way," said the guidance.
