The Information Commissioner’s Office (ICO) has published new guidance for public bodies as to whether they “hold” information that should be disclosed upon an information request under the Freedom of Information Act or the Environmental Information Regulations. Under those laws, a member of the public can submit a request for the disclosure of certain information by public bodies, such as local authorities or Government departments. Subject to certain exceptions, the public body will then have to disclose that information.
The ICO, the UK’s privacy regulator, sets out in the guidance that information contained in a recycle bin on a computer will have to be disclosed, although information that has been deleted from a recycle bin, whilst technically “recoverable”, will not be considered to be held by the public body and will not therefore be subject to disclosure obligations.
An exception is that, where the information has been deleted from a recycle bin by mistake, the public body is likely to want to recover that information for its own purposes, and will therefore be obligated to disclose that information on recovery if requested to do so.
The ICO said that information held only on “backup” systems will not be considered to be held and will not therefore need to be disclosed. The guidance also sets out that metadata on electronic documents, such as drafting history and email routing history, must only be disclosed if it is specifically requested; if not specifically requested, disclosure of metadata is not “expected”.
The guidance recognises that some of the advice it contains in relation to whether information is held or not is contradictory to previous guidance issued by the Information Rights Tribunal and the Lord Chancellor, but that the ICO considers that it is the intention of the public body that is relevant in deciding what information is held rather than whether information can actually be recovered, which was the basis of that previous guidance.