FOI response from ICO refuses disclosure of correspondence with Samaritans because it could prejudice ongoing investigations
On 12 November I asked the Information Commissioner’s Office to disclose to me, under the Freedom of Information Act (FOIA) information relating to their assessment of the legality of the “Samaritans Radar” app (see blog posts passim).
The ICO have now responded to me, refusing to disclose because of the FOIA exemption for “law enforcement”. As the ICO say
The exemption at section 31(1)(g) of the FOIA refers to circumstances
where the disclosure of information “would, or would be likely to,
prejudice – … the exercise by any public authority of its functions for
any of the purposes specified in subsection (2).”
The purposes referred to in sections 31(2)(a) and (c) are –
“(a) the purpose of ascertaining whether any person has failed to comply
with the law” and
“(c) the purpose of ascertaining whether circumstances which would
justify regulatory action in pursuance of any enactment exist or may arise
Clearly, these purposes apply when the Information Commissioner is
considering whether or not an organisation has breached the Data Protection Act
But the exemption is subject to a public interest test, and the ICO acknowledge that there is public interest in the matter, particularly in how Samaritans have responded to their enquiries. Nonetheless, as the investigation is ongoing, and as no decision has apparently been made about whether enforcement action should be taken, the balance in the public interest test falls on the side of non-disclosure.
The question of potential enforcement action is an interesting one. Although the ICO have power to serve monetary penalty notices (to a maximum of £500,000) they can also issue enforcement notices, requiring organisations (who are data controllers, as I maintain Samaritans were for the app) to cease or not begin processing personal data for specific purposes. They also can ask data controllers to sign undertakings to take or not take specific action. This is of interest because Samaritans have indicated that they might want to launch a reworked version of the app.
It is by no means certain that enforcement action will result – the ICO are likely to be reluctant to enforce against a generally admirable charity – but the fact that it is being considered is in itself of interest.
The ICO acknowledge that the public interest in maintaining this particular exemption wanes once the specific investigation has been completed. Consequently I have asked them, outwith FOIA, to commit to disclosing this information proactively once the investigation has finished. They have no obligation to do so, but it would be to the benefit of public transparency, which their office promotes, if they did.
The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.