Expol's investigation into Abbotswood *REDACTED*

Summary

The requester sought the full Expol investigation report regarding a 2020 Covid outbreak at Abbotswood, but the Department of Health and Social Care failed to respond within statutory timeframes and applied exemptions incorrectly.

Key Facts

• The Information Commissioner upheld the complaint partially, finding the authority failed to respond within required timescales.
• The authority did not provide the requested information and incorrectly applied exemptions without clear explanation.
• The review noted the request displayed characteristics of private interest, suggesting a Data Subject Access route might have been more appropriate.
• The authority conducted a reasonable search and located the documents promptly.
• The authority failed to offer appropriate advice and assistance, with minimal contact made during the process.

Data Disclosed

• 2024-03-12
• 2024-05-23
• 2024-06-19
• 2024-08-16
• March 2020
• 20 working days
• 8th May 2024
• 30th May 2024
• 3736445
• 10 pages
• 2 documents

Exemptions Cited

• Private interest considerations
• Data protection (implied via suggestion of Data Subject Access route)

Original Request

Please can I request on behalf of *REDACTED* a copy of Expol's investigation into the DHSC's concerns following the Covid outbreak in March 2020. We would like the full investigation report without any removal of information but understand data protection. From this, the report is aimed at *REDACTED* working practices prior to the outbreak. Hoping this request does not cause any concerns but we do need this to compile our report to present to the appropriate body. Kind regards *REDACTED*

Data Tables (1)

Data Tables (reformatted)

Full Response Text

Chief Officer: Paul Richardson Freedom of Information Team First Floor Belgravia House Circular Road Douglas IM1 1AE

Our ref: 3736445 16 August 2024

Dear ###

Information requested by: ###

Summary of Process 1. Request received: 12 March 2024 2. Response sent: 23 May 2024 2. Review requested: 19 June 2024

Review of Response

In your communication to Department of Health and Social Care dated 19 June 2024, you raised the following issues:

“Please can I request on behalf of REDACTED a copy of Expol's investigation into the DHSC's concerns following the Covid outbreak in March 2020.

We would like the full investigation report without any removal of information but understand data protection. From this, the report is aimed at REDACTED working practices prior to the outbreak.

Hoping this request does not cause any concerns but we do need this to compile our report to present to the appropriate body.”

Statutory Considerations & Outcomes 1. Did the public authority respond to your request within the required timescales?

No – Further elaborated under Specific Issues you raised.

1. Did the public authority provide the information requested?

No – Further elaborated under Specific Issues you raised.

1. Did the public authority conduct a reasonable search for the information?

Yes, the documents requested were located promptly by the original case handler.

1. If the public authority did not provide the information because of the application of a practical refusal reason, was the refusal clear?

N/A – No practical refusal reasons were applied to your request.

1. If the public authority applied an exemption was it correct and was it explained?

No – Further elaborated under Specific Issues you raised.

1. Did the public authority offer appropriate advice and assistance?

No – The review found there was minimal contact with you from the point which the request was received, and eventually responded to.

1. Did the public authority advise you of the internal review process and your right of appeal to the Information Commissioner?

Yes, these rights were referenced in the response letter.

Specific Issues you raised

You raised your internal review request on 19 June 2024.

My review identified the substance of your complaint(s) as follows:

1. “My application has been refused without any reason or than they thought it inappropriate at this time to have a meeting to discuss the reason for the refusal.” The review has also taken your email of 30 May into consideration. Although not the subject of the Internal Review request, I considered it relevant on the basis that compliance with the statutory timeframe would be a consideration of the review in any case, and on this occasion it was a clear expression of dissatisfaction with the time taken to receive a response, after the date on which the response was due.

2. “When I applied for a Freedom Of Information (FOI) on the 12th March 2024, I was told that this would firstly be addressed within 20 working days only to be informed later that I would have a reply by the 8th May

We are now on the 30th May 2024 and I still haven’t received my FOI request and therefore would it be possible to forward on the EXPOL report.”

In reviewing these complaint(s), the purpose of the review was to answer the following questions;

1. Was the Department justified in refusing to supply you with the requested information?

2. Was the time taken by the Department to process this request justified, taking into consideration their extension of the processing period?

Decision

The scope of your request was clear; you requested the Department disclose the Expol Report, in full “without any removal of information…”

The review does note the request was submitted and displayed characteristics of private interest. This was evident in the initial request scope, and further elaborated on in the request for a review.

The purpose of the Freedom of Information Act 2015 (“FOIA”), is to enable persons who are resident in the Island to obtain access to information held by public authorities in accordance with the principles that —
(a) the information should be available to the public to promote the public interest, and; (b) exceptions to the right of access are necessary to maintain a balance with rights to privacy, effective government, and value for the taxpayer.

FOIA requests should be processed “applicant blind”, however, on this occasion, you provided information in your request, and correspondence which would allow the Department to consider your motives behind making the request, possibly enabling the consideration of a practical refusal reason, in particular because of the private interest elements.

Alternatively, it may have been more appropriate for the Department to inform you of the Data Subject Access route, given the relationship between you and an affected party, and the motive behind your request.

To provide you with advice and assistance, should you wish to submit a request for information in future, please note that you are not required to provide your rationale or justification for making the request.

In cases such as this one, where there is a private interest in the information concerning you, or a relative, we would suggest that you submit your request to the Department’s Data Protection Officer (dpo-dhsc@gov.im), requesting access to your personal data. If the request relates to a relative, we would ask that they submit their request in their own capacity, or, provide you with written authorisation to act on their behalf.

Notwithstanding the above, the Department accepted and processed your request under the FOIA.

Your request referenced a specific document or set of documents, which were easily retrievable by the case handler at the time. The remainder of the processing period was allocated to reviewing the documents, considering the disclosure.

Following review of the points raised in your complaint(s), a decision must be made as to whether any, or all of the complaint is to be upheld.

The final decision of this review is as follows.

1. Was the Department justified in refusing to supply the requested information to the applicant?
   Upheld in part

Section 25 – Absolutely Exempt Personal Data

The nature of this exemption provides that it can be engaged specifically where the information contained in a record constitutes personal data, where information is not personal data, the exemption cannot be engaged. This is an absolute exemption, and does not require the Department consider the Public Interest test.

Section 25 states;

“Information is absolutely exempt information if –

(a) it constitutes personal data of which the applicant is not the data subject; and

(b) one of the following applies —

(i) in a case where the information falls within any of paragraphs (a) to (d) of the definition of “data” in section 1(1) of the Data Protection Act 2002*, the disclosure of the information to a member of the public (otherwise than under this Act) would contravene any of the data protection principles;

(ii) in a case where the information falls within paragraph (e) of that definition of “data”, the disclosure of the information to a member of the public (otherwise than under this Act) would contravene any of the data protection principles if the exemptions in section 29A of the Data Protection Act 2002* (manual data held by public authorities) were disregarded;”

*The FOIA references the Data Protection Act 2002, however, for the purposes of clarity, the requirements of the exemption have been considered against the provisions of the Data Protection Act 2018, which when introduced, superseded the provisions of the 2002 Act, and brought in the General Data Protection Regulations 2018 via the Data Protection (Application of GDPR) Order 2018 (the “Applied GDPR”).

The review has found that that the Department did have justifiable means to exempt portions of these documents from disclosure under Section 25, however, the blanket application of this exemption is not permissible.

Section 20 – Information Accessible by Other Means

The nature of this exemption provides that it can be engaged when the information requested by an applicant is reasonably accessible to the applicant by another method, e.g. it is already published online. This is an absolute exemption, and does not require the Department consider the Public Interest test.

Section 20 states that;

“(1) Information is absolutely exempt information if it is reasonably accessible to the applicant, whether free of charge or on payment, other than by requesting it under section 9(1) (requests for information).

(2) Without limiting subsection (1), information is taken to be reasonably accessible if —
(a) it is available in public libraries or archives;

(b) it is available on the internet or from any other reasonably accessible source;

(c) it is made available under a publication scheme; or

(d) the public authority that holds it, or any other person, is obliged by or under any enactment to supply it to members of the public on request.

(3) Information is not reasonably accessible merely because it is made available voluntarily by a public authority, otherwise than under a publication scheme (if any).”

The review has considered the scope of the your original request;

“Please can I request… a copy of Expol's investigation into the DHSC's concerns following the Covid outbreak in March 2020…

We would like the full investigation report…”

Taking this into consideration, and after undertaking further analysis of the contents of each set of documents; what was originally requested (the Expol Report), was not the same as what was referenced as being publicly available by the Department (the Covid Review Report), therefore the Section 20 exemption has not been engaged and is not permissible.
A further review of the information was undertaken by me as part of the review, which has determined that it should be considered for disclosure, I have provided further information on this in our Revised Response.

1. Was the time taken by the Department to process this request justified, taking into consideration their extension of the processing period?

Fully upheld

The standard processing period for a Department to respond to a request is defined in Section 12(2)(a) of the Act, as 20 working days.

The Department received your request on 12 March 2024, and responded on 23 May, although it received a query from you on 30 May claiming non-receipt.

For the purpose of the following, and given the evidence available to me via the processing system, the Review will treat the 23 May as the date of the Response.

On 22 March, the Department contacted you, advising that they would be extending the processing period under Section 13, stating they would respond to your request by 8 May.

Section 13(1) of the Act states;

“This section applies if, in responding to a request for information during the standard processing period, the public authority is considering whether the public authority may refuse to give the applicant the information requested because the information is qualified exempt information.

As per the review’s response to Question 1 above, the exemptions applied to your request were absolute, and not qualified, therefore the extension to the statutory timeframe was not permissible.

In taking the above into consideration, the Department did not comply with the statutory timeframe, and were not justified in extending the processing period under Section 13 of the Act.

Revised Response

In undertaking our review, it was clear that the exemptions applied to the information requested were not done in accordance with the provisions of the Act, therefore, I have reviewed these documents with relevant input from the associated parties and now attach the following information;
- 00. Cover & Main Body - 01. Report Chronology

For transparency, please know that there were other documents considered for disclosure, the Witness Statements. Due to the nature of the information contained and the circumstances in which this information was obtained, these cannot be disclosed. I have provided our rationale for this below.

Our revised response to your request is as follows: I have enclosed copies of the information.

Section 25 – Absolutely exempt personal information

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because it is absolutely exempt under section 25(2) of the Act (absolutely exempt personal information) of which you are not the data subject.

This exemption has been engaged as the documents disclosed include identities of Department staff, witnesses who provided statements to Expol as part of their investigation, and other third-parties. The types of information redacted include names and other reasonable identifiers, direct or indirect, which identify or infer the identity of an individual or their personal opinions/beliefs.

The reason why this exemption applies;

Article 4(1) of the Data Protection (Application of GDPR) Order 2018 (the “Applied GDPR”) defines personal data as:

“(1) …any information relating to an identified or identifiable natural person… who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.”

It is noted that information about an employees’ actions or decisions in carrying out their role is their personal data. However, through research of information already manifestly available in the public domain, I have not redacted identities of individuals where they have already been contextually revealed to the public through other publications, such as the Independent Covid Review’s Abbotswood file.

For those identities which have been redacted, consideration has been given to the need for government transparency and accountability, which typically requires disclosure of officers’ details who are at the grade of HEO and above. On this occasion, we have balanced this requirement against the circumstances surrounding the subject matter of the documents, and whether it would be fair to release their identities, given the Department’s duty to protect individuals’ rights to privacy.

Taking the above into consideration, I have deter

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