December 2004
Introduction
i Introduction to the Freedom of Information Act 2000
The Freedom of Information Act 2000 (hereinafter referred to as FOI) came fully into force on 1 January 2005 and gives a general right of access, subject to some exemptions, to all types of recorded information held by public authorities. The Act applies to public authorities in England and Wales that exercise public functions, including the police, the armed forces, the NHS, the education service, and local and central government departments, their related offices and agencies. This definition obviously includes The Insolvency Service. The Information Commissioner (formerly the Data Protection Commissioner) is responsible for monitoring the compliance of public authorities with the FOI, DPA and the Codes of Practice (see paragraph xxxi).
ii FOI and The Insolvency Service
The Insolvency Service aims to provide full and open communication and to disclose information where it is able to do so subject to relevant legislation and the constraints imposed. To assist with this process, an FOI officer has been appointed within Technical Section and whilst requests for information should be dealt with by the person holding the information, the FOI officer will deal with matters of uncertainty on FOI raised by official receivers and HQ staff and will be responsible for monitoring FOI requests.
iii The official receiver as statutory office holder
The FOI does not apply to courts and tribunals because it was felt they should be governed by their existing rules (the civil procedure rules in respect of the High Court and county courts, for example). When the official receiver is acting as statutory office holder (including where he/she is provisional liquidator, liquidator, receiver and manager, trustee, nominee in a FTVA or a supervisor in a voluntary arrangement) he/she is accountable to the court in respect of the actions taken in that regard.
Legal advice received by The Service states that if the requested information is held by the official receiver solely because he/she is acting as statutory office holder, FOI will not apply.
Instead, DPA provisions must still be considered as far as requests for any personal data held - whether the request is for information personal to the applicant or personal to a third party - and the provisions of the insolvency Act and Rules 1986 and other relevant legislation applied to requests for other information. All requests for information in bankruptcy cases are likely to be for personal information and the DPA provisions detailed in this chapter must be applied (paragraphs xvii to xxxi).
The official receiver will need to take into account the restrictions in the insolvency legislation on who is entitled to the information as well as the guidance in TM Chapter 47, Disclosure, when deciding if the requested information can be given in full or in part. For example, if an applicant (who is not a creditor of the company in liquidation) requests a copy of the list of creditors, and the statement of affairs has not been lodged, a copy of the list should not be provided as Rule 12.17 of the Insolvency Rules 1986 will apply.
Where the official receiver is acting as statutory office holder and instructs agents, a request for information held by those agents should be considered for disclosure in the same way as if the official receiver was holding the information himself/herself and the DPA and Chapter 47 considerations may also apply.
iv What if there is information held by Headquarters?
It must be remembered that although FOI may not be relevant to official receivers in most cases, it does apply to all information held by Insolvency Service Headquarters including information that has been sent to Headquarters by the official receiver. This will include information given as part of a request for advice and information in any report submitted to Enforcement, regardless of whether FOI was applicable whilst the information was held only by the official receiver.
If part or all of the information requested is held by a Section within Headquarters, the request should be sent to the appropriate Section Head as soon as possible as it will be for the Section Head to consider disclosure even if the official receiver holds the same information. It must be remembered that, unlike DPA, there is no need to make separate requests for information to both the official receiver and Headquarters Sections as FOI potentially covers all of the information held by the Department of Trade and Industry, regardless of where it is held or by whom.
Where there is a possibility that relevant information is held by DTI, the request should go to the Information Rights Unit or IRU (formerly known as the Open Government Unit) at DTI, 1 Victoria Street, London SW1H 0ET with a copy to the FOI officer in Technical Section. The contacts at IRU are Graham Rowlinson, telephone number 020 7215 6452, e-mail address Graham.Rowlinson@berr.gsi.gov.uk and Ann Phillips, telephone number 020 7215 3959, e-mail address Ann.Phillips@berr.gsi.gov.uk.
v When is the official receiver not acting as statutory office holder?
There are some occasions where the official receiver is not acting as statutory office holder and where FOI 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, FOI as well as DPA will be relevant. Also more likely are those occasions where the official receiver is acting on the specific instructions or carrying out delegated functions of the Secretary of State, when FOI will also apply. This will include cases where an authority to proceed has been granted in a compulsory liquidation or in a BRO case or where a prosecution report has been accepted in a bankruptcy, and any FOI requests in such cases should be directed to the Technical Section or Enforcement Directorate.
Where work is being carried out with a view to establishing unfit conduct in a voluntary liquidation, the exemption for the official receiver acting as statutory office holder will not apply. Any FOI requests in such cases should be referred to the Enforcement Directorate. As the decision as to whether or not disclosure is appropriate is case specific and includes public interest considerations, in those cases where advice is sought, details of the case and a note of the stage of investigation must be provided. Requests for disclosure of D reports in such voluntary cases should be referred to the Central Targeting Team.
If information is held by the official receiver because he/she is acting as a statutory office holder and for the Secretary of State (as detailed above), FOI will be applicable both to the official receiver and any agents employed by him/her whilst so acting.
If the official receiver is uncertain in what capacity he/she is holding the information requested, he/she should consult Technical Section. Whenever possible the information should be given but if the official receiver considers that the requested information cannot be provided, the reason for the decision must be given. The circumstances where a request may be refused are summarised in paragraph xv.
vi Data Protection Act 1998 and FOI
Staff may already be aware of the Data Protection Act 1998 (hereinafter referred to as DPA) which came into force on 1 March 2000. FOI amends DPA but does not repeal it. Basically, DPA regulates the handling of personal data and grants an individual the right, subject to various qualifications and exemptions, to be told by any data controller (the official receiver, for example) whether any personal data of which he/she is the data subject is being processed and, if so, to be told what information is contained in that data. DPA also covers third party information if disclosure of that information would contravene the data protection principles, or section 10 DPA regarding processing likely to cause distress or damage, or if the individual to whom it relates would not have a right of access to it because an exemption under DPA applies.
When a request for information is received, and the official receiver is not holding the information solely in his/her capacity as statutory office holder, he/she must consider whether the FOI or DPA provisions should be applied or whether both should be applied. There may be some information which is not personal data but that relates to an individual making an information request, in which case both Acts will need to be considered.
Generally requests for personal information in bankruptcy or partnership cases (as long as the individual is still alive) will fall to be dealt with under the DPA, but if the individual to whom the information relates is deceased, the DPA will not apply. The specific exemption in section 40(1) of the FOI means that where information requested constitutes personal data of which the applicant is the data subject, the request will be dealt with under the DPA regime. Similarly requests by a company director about himself/herself will be a ‘subject access request’ under the DPA.
Where the FOI applies and an individual makes a request for information regarding a third party, the exemption in section 40(2) means that if disclosure would contravene the DPA or if the individual to whom it relates would have no right of access under DPA, then the applicant also has no right to the information
See paragraphs xiii to xxvii for more information regarding DPA.
vii The right to know under FOI
Under section 1 of FOI, any person making a request for information to a public authority has the right:
Unlike DPA, these rights are not limited to information regarding the individual making the request but could apply to any information held unless it is exempt information, (see paragraphs ix and x for details of exemptions). There are no restrictions on the person that may submit a request and as the definition of person also includes corporate bodies, a company may rely on FOI as well as an individual.
All information held by The Service is potentially disclosable and there is no need under FOI to make separate requests for information to official receivers and Headquarters Sections. A request will extend across the whole of The Service and the DTI and cover any information held regardless of where it is held or by whom. It should be remembered that the FOI provisions will not apply where the official receiver is holding information solely in his/her capacity as statutory office holder (see paragraph iii).
viii Requests under FOI
It is not necessary for a request for information to mention FOI for it to apply so staff must be alert to the possibility that any request for information could fall to be dealt with under FOI.
There are three requirements that must be fulfilled before a request is dealt with under FOI, as follows:
ix How should the information be provided?
The applicant may express a preference under FOI as to the way in which he receives the information requested. He can ask for a copy of the information in permanent form, for a summary of the information or to inspect the document containing the information and is not restricted to one means, so may inspect and copy, for example.
The official receiver should provide the information in accordance with the applicant’s preference so far as is reasonably practical. Where the cost of providing the information in the manner requested would be higher than producing it in another format, for example, the official receiver should explain this and provide the opportunity for him to choose a cheaper option.
The expression of a preference does not create a general right of access to the official receiver’s records so that there is still no general entitlement to inspect the whole of the case file, for example. The applicant may only inspect those documents specified which contain the information sought.
x How quickly must an FOI request be dealt with?
FOI requires that a request be dealt with promptly and, in any event, no later than the 20th working day after the request is received. The Service has an internal target of 15 days for dealing with correspondence and the official receiver should provide the information requested under FOI within that target other than in exceptional cases. This does not provide much time and it is thus important that staff can recognise and deal with requests promptly.
The time period will start to run the day after the request is received, assuming that the 3 requirements in paragraph iv are met. 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 on which it is passed to the appropriate person, although in the case of e-mails where there is an automated “out of office” message, the request will not be treated as received until it is sent to the alternative contact.
There are two situations where the response time will be suspended:
If more research is needed before a reply can be sent, which will mean the time target is likely to be exceeded, an interim reply should be issued to the applicant within 5 working days indicating when a substantive reply can be expected.
Where information is held by the official receiver and one or more Sections at Headquarters, agreement should be reached as to which one will correspond with the applicant. Where there is a possibility that relevant information is held by DTI, the official receiver should contact the Open Government Unit (Graham Rowlinson, telephone number 020 7291 6452, his e-mail address is Graham.Rowlinson@berr.gsi.gov.uk). Where it is a further enquiry case where the Enforcement Directorate is involved, they should be consulted before the information (from other HQ Sections or the DTI) is provided unless the information is clearly unrelated to the investigation.
The Freedom Of Information (Fees and Appropriate Limit) Regulations 2004 came into effect on 1 January 2005.
In accord with the spirit of openness fostered by FOI, it has been decided that, for the majority of requests received by The Insolvency Service, information will be provided free of charge. The main points to note are:
For information on how to calculate costs and fees, see Annex B of Chapter 81. (It should be noted that there is a difference between the calculation of costs to decide if a fee can be charged and the calculation of the actual fee charged. Details are given in Annex B).
If Technical Section agree that a fee is appropriate, the applicant should be informed that a remittance is required (form xx). The clock will stop running on the response time for the request once that letter is sent. When the fee is received, it must not be credited to the estate account but should be forwarded to Finance Section. In the case of a cheque, Finance Section will then notify the official receiver once the cheque has cleared, the clock will re-start and the information should be forwarded within the timescale.
xii Exemptions under FOI
Although FOI is based on the idea that disclosure should be the norm and provides a general right of access to information held by public authorities, there is not an unlimited duty to provide the information. In some cases, the information requested may be exempt from disclosure. There are two types of exemption under FOI, absolute and non-absolute. In the case of an absolute exemption, there is no need to disclose the information at all nor even, in most cases, to disclose whether the information is held or not. For non-absolute exemptions, a public interest test must be considered both in deciding whether to disclose that the information is actually held and then in deciding whether to disclose or withhold it.
NB It is for the official receiver to decide whether an exemption applies – the relevant papers should be passed to him/her for consideration and the case officer will then act on the instructions given.
Part II of FOI outlines a number of absolute exemptions and those that are likely to be of relevance to the official receiver are as follows:
a) Information that is available from another source, even if payment is required to gain access (section 21 FOI)
An applicant can be directed to information already in the public domain, including information already published by other public authorities. The Insolvency Service’s publication scheme is available on The Service’s website. http://www.insolvency.gov.uk/ . If the applicant cannot obtain access to the website a copy of the information should be provided and currently The Service does not charge for providing such copies although this is under review. It should be remembered that there is an obligation to assist the applicant and if it is more straightforward to provide the information, it should be given rather than refer the applicant elsewhere. For example, where the information requested is contained in a Service leaflet, this should be sent to the applicant although he may be directed to the website if he has expressed a preference to receive the information electronically.
b) Court information is exempted if it is held solely by virtue of being contained in any file or otherwise placed in the custody of the court (section 32 FOI). (This applies to both civil and criminal court records.)
Where this exemption applies there is no duty to confirm or deny the existence of the information. If the information in question has been obtained from another source or by other means, this exemption will not apply. The disclosure of information contained in court records is to be regulated by the procedures applying to the court or tribunal in question. For example, in the High court and County courts, the civil procedure rules govern access by non-parties to the proceedings for documents coming into existence in the course of proceedings.
Generally speaking, the effect of this section is that parties to court proceedings will retain their right of access to information such as witness statements under the normal court disclosure rules whilst third parties, such as the press, will only have access to information made public in open court or available under the court rules but not to information which is subject to proceedings “in camera”.
c) Any request for personal information exempts such information as a class (Section 40 FOI).
The right to know whether personal information is held and, if so, to have access to it will instead be dealt with under the provisions of the DPA. This is covered later in this part at paragraph xvii. Third party information will also fall under section 40 although not in the same way. Where the information is personal information relating to a third party, it will also be exempt if its disclosure would either contravene (I) the DPA data protection principles; or (II) section 10 of the DPA (right to prevent processing likely to cause distress or damage); or (III) if the person to whom it relates would not have a right of access to it under that Act as an exemption in the Act applies.
d) Information provided in confidence will be exempt if its disclosure would constitute a breach of confidence actionable by that or any other person (Section 41 FOI)
A duty of confidence arises when one person is provided with information by another in the expectation that the information will only be used or disclosed in accordance with the wishes of the confider and not disclosed any further. If there is a breach of confidence, the confider will have the right to take action through the courts. It should be made clear to correspondents (for example through the website) that letters headed in confidence or confidential will not automatically mean that all of the contents of the letter will be treated as confidential. In any event, where a request for information is received and the confider consents to the information being disclosed, disclosure will not lead to a breach of confidence.
e) Information, disclosure of which is prohibited by any enactment, is incompatible with any EU obligation, or would constitute or be punishable as a contempt of court is exempt (Section 44 FOI)
xiv Non-absolute exemptions
If no absolute exemptions are applicable, the official receiver must consider whether any of the non-absolute exemptions are relevant to a request for information. If a non-absolute exemption does appear to apply, the official receiver has then to consider (a) whether the public interest in refusing to confirm or deny that the information is held outweighs the public interest in disclosing that fact, and (b) whether the public interest in withholding the information outweighs the public interest in disclosing it. This is known as “the public interest test”. FOI sets out a number of non-absolute exemptions and those that are likely to be applied by the official receiver are as follows:
a) Information held for the purpose of any investigations the public authority has a duty to conduct with a view to ascertaining whether an individual should be charged with any offences, including information relating to criminal investigations and civil proceedings (Section 30 FOI). This exemption relates to any information that has been held at any time for the purposes of investigation, even where it is later decided from the evidence available that there are insufficient grounds to institute proceedings. It also exempts any information received in confidence (Section 30(2) FOI).
b) Law enforcement (Section 31 FOI) specifically exempts a number of categories of information (which are not exempt by virtue of section 30) where disclosure would or would be likely to prejudice:
Further, the section exempts any information which would prejudice the exercise of a public authority’s functions for any of the purposes listed in Section 31(2) FOI. These purposes include:
c) Information which is intended for future publication, where it is reasonable not to disclose the information until the intended date of publication (Section 22 FOI).
d) Information in respect of which a claim to legal professional privilege could be maintained in legal proceedings (Section 42 FOI).
e) Disclosure of information which would be likely to prejudice the commercial interests of any person (Section 43(2) FOI).
f) Any request for environmental information will be dealt with under the Environmental Information Regulations 2004.
There are other exemptions but it is unlikely that these could be applied by the official receiver.
xv When can the official receiver refuse to provide the information under the FOI provisions?
A request for information may only be refused if:
If information is refused because it falls into one of the absolute or non-absolute exemptions, the applicant must be informed by a refusal notice (see forms FOI 4 and FOI 5 on the Technical Section website) within the time limit (20 working days under the FOI but 15 working days under the internal target). The notice must state that the information is exempt (specifying the exemption in question), state why the information is exempt (unless that is apparent) and, if appropriate for non-absolute exemptions only, why the public interest is served by refusing to disclose. Details of the Insolvency Service complaints procedure 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 FOI should also be provided.
xvi Repeat or vexatious requests
Section 14 FOI states that there is no obligation to comply with a request for information if it is “vexatious”. The following points should be taken into account in deciding whether a request is vexatious:
Where it is clear that there is no additional information available to the applicant, and the applicant knows that no further information is available, on receipt of the third such request, then there is an arguable case that the request is vexatious and the official receiver can refuse to provide the information quoting section 14 as the reason for the refusal.
FOI 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. This repeat request refusal should be used, in preference to refusal as a vexatious request, to deal with individuals that are constantly seeking information as it is much less likely to antagonise the applicant than if he is labelled as vexatious. If a request is received for the same or substantially the same information within 6 months of its disclosure, it is considered reasonable that the official receiver does have an obligation to comply with the request. If it is appropriate to refuse the request under FOI, section 14 the applicant should be informed that this is the reason for the refusal.
Where information was previously provided to an applicant prior to 1 January 2005, that will not count as an earlier request for the purposes of section 14(2), and the information should be provided again on request unless one of the exemptions under FOI apply.
In extreme cases, with an applicant whose behaviour has meant, for example, that the court will no longer have dealings with him/her or the Insolvency Service and/or Minister refuses to enter into correspondence anymore, and all of the information that can be has been provided, the applicant should be referred directly to the Information Commissioner as long as the FOI provisions apply to the information requested. (It should be remembered that where the official receiver is holding information solely in his/her capacity as statutory office holder the FOI will not apply.)
xvii Requests for personal information and DPA
The right to know whether personal information is held and to have access to it, is exempt from the provisions of FOI (section 40) and will instead be dealt with under the provisions of the DPA. Any application from an individual for information regarding him or herself will thus become a subject access request under DPA and treated accordingly, for example requests for personal information received from bankrupts/former bankrupts, partners and company officers will fall into this exemption.
Where the information requested relates to a third party, it will also be exempt under FOI if either:
DPA is governed by eight principles set out in Schedule 1 part I and these must be complied with by data controllers, such as the official receiver, in respect of personal data they hold. These principles cover such points as the need for fair and lawful processing of personal data (first principle), the purpose for which personal data may be obtained and processed (second principle), the accuracy of personal data (fourth principle) and that personal data may only be processed in accordance with the rights of data subjects under the Act (sixth principle). In the case of unstructured personal information though, only the fourth and sixth principles are applicable (see paragraph xviii).
xviii What data is covered by DPA?
The definition of “data” under DPA has been extended by FOI to include all recorded information held even if in manual form (it was formerly limited to information processed or intended to be processed automatically i.e. by computer, and to information held in a manual file that fell within the definition of a “relevant filing system”). There is a division of manual data into structured and unstructured information, however, the aim being to limit the obligation to provide access to manually held personal data that can be found ”with reasonable endeavours”.
Unstructured personal information:
This is any information that is not recorded as part of a set of information structured by reference to individuals or criteria relating to individuals. The access to such information is limited in two ways:
Structured personal information:
For the information to be structured, it must be information with something coherent or defining about it that means it may be regarded as a set. The information must relate to a living individual and the set must have an internal structure dictated by reference to individuals or criteria relating to them. Thus a file arranged in date order, such as the official receiver’s case file, would be covered as long as the name of the individual was on the front cover. There is no requirement that structured personal information must be readily accessible and if the personal information falls within this structured category, it must all be provided unless it is exempt information, see paragraph xx.
xix Right to know under DPA
Once a request is received in writing (including transmission by electronic means) and the official receiver is satisfied as to the identity of the individual making the subject access request, and that the information requested is not exempt under DPA, the individual is entitled:
The data subject should also be provided with copies of the information in a permanent form – unless the supply of such a copy is not possible, or would involve a disproportionate effort, or if the data subject agrees otherwise. Unlike FOI, the data subject is not given a choice as to how the information requested is to be provided under DPA.
Subject to the restrictions in sections 29 and 31 of DPA, bankrupts, company directors and insolvency practitioners are entitled to know what personal data about them is held on any of The Service’s record systems and to have copies of that data.
xx Can information relating to another individual be disclosed?
If to comply with a subject access request under DPA would involve disclosing information regarding another individual who could be identified from that information, the official receiver does not have to comply with the request unless either the other individual concerned has given consent to the disclosure or it is reasonable in the circumstances to comply without consent.
Where it is straightforward to remove the third party information from the document(s) to be disclosed by covering names or other identifying particulars, this should be done. A copy of the data so provided should be taken and placed on the file in the event of subsequent query.
xxi Can personal information be disclosed to third parties?
The second data protection principle states "personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes". "Processing" includes disclosure. It is also necessary to ensure that the first data protection principle that personal data should be processed fairly and lawfully is not breached. (It should be noted, however, that this does not apply to unstructured personal data).
Legal advice has been received that the official receiver should only disclose information about individuals where expressly required to do so by insolvency legislation (e.g. in the report to creditors) or by the exemptions contained in the Act. For example, if the official receiver is approached by the Inland Revenue for information about a bankrupt’s tax affairs, disclosure might be justified under DPA, section 29 on the basis that the Inland Revenue need the information for the assessment of a tax, provided the conditions set out in Schedules 2 and 3 of the DPA are met. Equally, if the organisation seeking the personal data has a statutory power to require the information, its disclosure in pursuance of that requirement is permitted under DPA, section 35.
The exemption under FOI, section 40 ensures that access to third party personal data is not widened. Basically, if the information constitutes third party personal data and its disclosure would contravene one of the data protection principles, it will be exempt.
xxii How quickly must a DPA request be dealt with?
The DPA lays down a 40-day timescale for dealing with subject access requests but the internal target for The Service is 20 working days. The official receiver thus has 20 days to comply from the time the request is received and he/she has received sufficient information to identify the individual making the request.
Once a request has been received that is to be dealt with under DPA, the data subject making the request should be asked to provide 2 forms of identification using form DPARR (Forms DPA 1 and DPA 2(b) for bankrupts or DPA 2 (d) for directors, which are available on the Technical Section website). On receipt of a duly completed request form and the forms of ID, the 20-day time limit will then start to run.
xxiii Can the official receiver provide information held by other parts of The Service?
Official receivers should be aware that files may be held for bankrupts and company directors by various Headquarters sections. If advice has been sought about a case from Technical Section, a file will have been opened which will contain copies of the exchange of minutes and may contain other papers which will be stored at the Registry in HQ Birmingham. In addition, both the Criminal Allegations Liaison Team and Authorisations Team hold files on various bankrupts and directors and also maintain databases of prosecution and/or disqualification details.
As the data controller for data held within Headquarters Section is the Secretary of State, none of this information will be under the control of the official receiver and he/she will not have any duty to disclose its existence. A bankrupt or director will be required to make a separate subject access request to the appropriate section head to obtain details of personal data held in Headquarters and should be informed of this necessity by the official receiver, if appropriate. Information held on the Central Index will also be under the control of the Secretary of State. However, one such request will cover the information held by all Headquarters sections, and it will be the responsibility of the section receiving the request to see if any personal information is held by other sections.
xxiv Exemptions from the right of subject access
Some personal data is exempt from the right of access by the data subject and the right to receive the information (the “fair processing of information“) specified in paragraph 2 of Part II of Schedule I DPA. Such exemptions are specified for personal data processed for the following purposes, amongst others:
There are also other exemptions relating to national security, “special purposes” such as journalism, and historical or statistical research but these are less likely to be applicable to the cases dealt with by official receivers.
xxv Section 31 DPA exemptions
Under section 31 DPA, a data subject is prevented from seeking access to their personal data if access would be likely to prejudice the proper discharge of functions designed for protecting members of the public against financial loss as outlined in paragraph xx(e). This exemption is relevant to the official receiver’s/Secretary of State’s functions in relation to unfit directors, bankrupts and insolvency practitioners.
It must be borne in mind that this is not a blanket exemption from the subject information provisions and is only available to the extent that, permitting access to the data or informing the data subject of the purposes for which the data is held, would be likely to prejudice the discharge of those functions. For example, if the official receiver is investigating an offence or misconduct or is attempting to trace undisclosed assets section 31 is likely to apply.
In cases of doubt, guidance should be sought from Technical Section (in the case of asset related enquiries) or Enforcement Directorate (in the case of enquiries relating to offences or misconduct).
xxvi Subsequent requests
If the official receiver has previously complied with a subject access request he/she is not obliged to comply with a subsequent identical or similar request by that individual unless a reasonable time has elapsed between the two requests, having regard to the nature of the data, the purpose for which the data are processed and how frequently the data are altered. Where a request is received within a 6-month period for the same or substantially similar information, it is reasonable to refuse the request but beyond that time period, the information should be provided unless there are other reasons for not doing so.
There is no DPA equivalent to vexatious requests under FOI.
xxvii Answering enquiries where an individual’s details do not appear on the Individual Insolvency Register (IIR)
Where an inquiry is dealt with over the telephone, care should be taken not to breach the provisions of DPA.
Enquiries by members of the public involving an individual whose details appear on the IIR are not a problem and information can be given freely. But if an individual’s details do not appear on the Individual Insolvency Register, telephone enquirers should be informed that the matter cannot be looked into any further over the telephone. NB: A search of the Central Index should not be undertaken.
The duration of entries on the Register is limited by the Insolvency Rules 1986 so that, for example, all information relating to a bankruptcy will be deleted three months after the date of discharge, and on annulment or rescission. Enquirers should therefore be told that the Insolvency Service’s internal records do contain details of cases which are not included in the public register and that, while such details cannot be discussed over the telephone, they may, if they exist, be disclosable, depending on the enquirer’s interest. If the enquirer wishes to pursue the matter, it must be by means of a non-verbal inquiry (i.e. by letter, fax or e-mail).
On receipt of a non-verbal enquiry in respect of an individual whose details do not appear on the IIR, consideration must be given to the enquirer’s interest in the case. Enquiries from known creditors or from a person claiming to be a creditor who provides adequate information for there to be no reason to doubt his or her claim to be a creditor, can be answered. All other types of enquiry must be referred to line management to decide if the enquirer has a legitimate interest entitling him or her to the information requested. In case of doubt, Technical Section should be consulted.
xxviii Answering telephone enquiries regarding companies
Central Index information on companies can be revealed to telephone callers. Caution should be exercised as regards providing personal details of directors (e.g. their addresses) and if the winding-up order was made more than five years ago, it is advisable to supply no personal information about the directors over the telephone. Requests for such details should be referred to Companies House, which will have information on files available for search. Alternatively, a non-verbal request can be made to the official receiver. Consideration should be given as to whether there are good grounds for releasing the information to the enquirer.
xxix Can the official receiver obtain personal data from third parties?
Other data controllers will be under the same constraints as the official receiver when it comes to disclosing personal data. Whilst section 35 of the DPA allows disclosure if it is required "by law or by any order of the court", there are no provisions in insolvency legislation which would entitle the official receiver to require that a third party make disclosure to him/her, so that for this exemption to apply he/she would need to obtain an order under section 366 of the Insolvency Act 1986. The official receiver should quote section 35(1) if refused information by a third party but if the official receiver is unable to obtain the information by any other means, he/she should ask the bankrupt to sign a disclosure authority.
xxx Can the official receiver sell computer equipment containing personal data?
Where the official receiver intends to dispose of computer equipment which he/she is aware contains personal data, he/she should, unless the disposal takes place as part of a sale of the data, ensure that the personal data is "cleaned" from the equipment prior to the sale. In order to remove all traces of data from the system, it is necessary to use a special program – it is not sufficient to simply delete the files. The official receiver should ensure that his/her agents are aware of this requirement when instructing them to sell computer equipment and, if they are unable to assure him/her that the equipment will be appropriately cleaned, he/she should give consideration to employing specialist agents. Consideration may also be given to destroying the equipment, if the costs of cleaning it up will exceed its realisable value.
xxxi What is the role of the Information Commissioner?
The Information Commissioner (formerly the Data Protection Commissioner) is responsible for monitoring the compliance of public authorities with the FOI, DPA and the Codes of Practice. The Information Commissioner has several enforcement options under the FOI. If any notice or correspondence is received from the Information Commissioner in connection with the FOI, DPA or the Codes of Practice, Technical Section should be immediately informed and provided with copies of the documents.
Under section 50 FOI any person who is dissatisfied may apply to the Information Commissioner regarding the Insolvency Service’s compliance with the requirements of the FOI, the most likely reason being that the complainant does not agree with the exemption relied upon for not providing the information. The Information Commissioner is obliged to consider an application unless he considers that the complainant has not exhausted the complaints procedure provided by The Insolvency 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.
Insolvency Service staff must not ignore any notice issued by the Information Commissioner as the courts may treat any failure to comply with an information or decision notice as a contempt of court in the same way. The DPLO in Technical Section must be notified of any notice or correspondence received from the Information Commissioner without delay.
Notes
Where can I find out more?
Freedom of Information Act 2000
Data Protection Act 1998
Freedom of Information (Fees and Appropriate Limit) Regulations 2004
Environmental Information Regulations 2004
Technical Manual:
Chapter 81 - Freedom of Information and Data Protection
Chapter 47 - Disclosure
Forms to be used:
FOI Forms
DPARR (DPA 1 and DPA 2) – Outlines how to make a subject access request, asks for 2 forms of ID
DPARAS (DPA3/3S) – forwards requested data to applicant
DPADA – consent by bankrupt to disclosure
DPATD – letter of official receiver’s authority to seek personal data
Click HERE to view the flowchart for DPA
Click HERE to view the flowchart for FOI
Procedure
LOIS screen references are given in brackets e.g. (D073).
1 Receive written request for information, including by e-mail or fax.
2 Ensure that the written request states the name of the applicant and provides a correspondence address - if the information to be given in paper format, an e-mail address will not be sufficient for copies to be provided and a terrestrial address should be asked for.
3 Ascertain whether the applicant has specified the information sought. If the request does not contain a description of the information, contact the applicant as soon as possible (by telephone, fax or e-mail) to seek clarification. Assistance should be given to enable the applicant to describe what he/she wants clearly. If the applicant then fails to provide the necessary description, no further action need be taken.
4 Once the information required is provided, the 15 working days response time will begin to run.
5 Consider if the official receiver is holding all the information requested in his/her capacity as statutory office holder, if acting as a liquidator or trustee realising assets, for example. In the majority of insolvencies the FOI procedure will not apply but checks should be made with paragraph iii before a final decision is made. If FOI does not apply reference should be made to the guidance in the Technical Manual and Case Help Manual as explained in paragraph iii to decide whether or not the information can be given. It should be remembered that the DPA provisions will apply if the information requested is personal information.
6 A request for personal information regarding the applicant will be exempt from FOI, as section 40 means it will become a subject access request under DPA. (This will also be true of requests for information relating to a third party if disclosure would contravene the DPA data protection principles, if it would contravene section 10 DPA regarding processing likely to cause distress or damage or if the individual to whom it relates would not be entitled to the information under DPA.) For DPA requests, see the guidance on the procedure for dealing with a subject access request given in paragraphs 16 to 25.
7 Where the FOI applies to the request, this procedure should be followed to point 15.
8 If the request is vexatious or a repeat request, there may be no need to comply. If the applicant has received the same or substantially similar information in the 6 months preceding this request, it can be refused under section 14 FOI. The relevant papers should be passed to the official receiver for a decision or for him/her to seek further assistance from Technical Section. Once so instructed by the official receiver, the applicant should be informed that this is the reason for the refusal to provide the information. Where information was previously provided to an applicant prior to 1 January 2005, that will not count as an earlier request for the purposes of section 14(2), and the information should be provided again on request unless one of the exemptions under FOI apply. In extreme cases, with an applicant whose behaviour has meant, for example, that the court will no longer have dealings with him/her or the Insolvency Service and/or Minister refuses to enter into correspondence anymore, and all of the information that can be has been provided, the applicant should be referred directly to the Information Commissioners. It should be remembered that the FOI provisions will not apply where the information is being held by the official receiver solely in his/her capacity as statutory office holder.
9 As it is for the official receiver to consider whether any of the other FOI exemptions apply, pass him/her the file for perusal (in the event of uncertainty, Technical Section may be contacted for advice). If so, once instruction received from the official receiver, notify the applicant that the request is exempt using form (number to be advised) as appropriate, ensuring that the exemption being relied on is specified.
10 Consider if relevant information is likely to be held by any Headquarters Sections or the DTI. If appropriate liaise with the relevant Headquarters Section Head. If the DTI holds or is likely to hold any other relevant information, contact Graham Rowlinson of the Open Government Unit on 020 7215 6452, e-mail Graham.Rowlinson@berr.gsi.gov.uk. Where it is a further enquiry case where the Enforcement Directorate is involved, they should be consulted before the information (from other HQ Sections or the DTI) is provided unless the information is clearly unrelated to the investigation.
11 Consider the amount of work to be done to provide the information and calculate the fee if one is to be charged, bearing in mind that no charge will be levied for FOI requests costing less than £20, Official Receivers must not charge for dealing with FOI requests without the prior approval of Technical Section, expensive FOI requests (those costing more than £600) should be refused unless the request is exceptional, for example from the press or an academic/researcher, and Technical Section approve the processing of that request. Details on calculating the costs to decide if a fee should be charged are given in Annex B to TM chapter 81. If no fee is to be charged go to paragraph 14.
12 Once Technical Section has approved the charging of the fee, contact the applicant using form FOI 6 available on the Technical Section website requesting a remittance for the sum due. Until the remittance is received, the clock will stop on the response time for the request.
13 Once the remittance is received, it must be forwarded to Finance Section immediately - it must not be credited to the estate account. In the case of a cheque, await confirmation from Finance Section that the cheque has cleared before complying with the request for information.
14 Forward the information requested to the applicant using the form available on the Technical Section website once the fee (if charged) is received. Where documents have been redacted to cover personal information, for example, ensure that a copy is taken for the office file in the event of subsequent query. Where the applicant attends at the office to view the information (but does not wish to have a copy of it) a clear record should be kept on the appropriate file of the information that has been shown to the applicant, the date and who attended the meeting. Again if documents have been redacted to cover personal information a copy should be taken so that it is clear what information the applicant has been shown.
15 Any documentation subsequently received from the Information Commissioners relating to any case must be copied to the FOI officer in Technical Section as soon as it is received.
NB The following only applies to requests for information under DPA
16 Where the request is a DPA subject access request, it must be remembered that it will extend to all recorded information even if held in manual form.
17 Once request received, send the applicant form DPARR (formerly DPA1/DPA2 DO73 which is Forms DPA 1 and DPA 2(b) for bankrupts or DPA 2 (d) for directors), available on the Technical Section website, explaining how to make a formal subject access request and asking for 2 forms of identification.
18 If there is a likelihood that files are held at Headquarters, because advice has been asked from Technical Section, for example, advise the applicant that a separate subject access request must be made to the appropriate Section Head.
19 Once a formal request is received, it must be dealt with within 20 working days.
20 Consider whether any of the exemptions apply, if the case is subject to an investigation of a possible offence or misconduct or if an attempt is being made to trace undisclosed assets, for example. If in doubt, guidance may be sought from Technical Section, in the case of asset related enquiries, or Enforcement Directorate, for enquiries relating to offences or misconduct.
21 If the applicant has received substantially the same information from the official receiver following an earlier subject access request, at some time in the 6 months preceding the current request, inform him that as it is a repeat request, the official receiver is not obliged to comply.
22 If the data sought from the official receiver is not subject to one of the DPA exemptions, there may be a need to differentiate between structured and unstructured personal data.
23 If the data is in an unstructured form, the applicant must expressly describe the information requested. If they fail to do so, there is no need to forward any data and a letter should be sent stating that the data will not be sent for this reason.
24 If the data is in a structured form, such as a case file, it must all be provided unless it is exempt. Using form DPARAS (DPA3/DPA3S DO73), available on the Technical Section website, forward a copy of the relevant data to the applicant, ensuring that any third party personal data is concealed (by covering names or other identifying information) and a copy of the data so provided placed on the file.
25 Any correspondence subsequently received from the Information Commissioners relating to any case must be acknowledged and copied to the DPLO in Technical Section as soon as it is received.