Practical Law

This is the third in our series of quarterly freedom of information law update blogs, which focuses on the  latest developments in freedom of information law under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (SI 2004/3391) (EIR). The blog will enable readers advising on freedom of information law to catch up on the most important cases, issues or developments. This post looks at freedom of information law developments from July to September 2013.

Please feel free to submit a comment below or contact us at feedback@practicallaw.com if you have any views on the cases, issues or developments that are covered, or if you think we have missed something that should be brought to the attention of freedom of information practitioners.

AMENDMENTS TO FOIA

Datasets

The Protection of Freedoms Act 2012 (POFA) introduced amendments to FOIA with effect from 1 September 2013 (under the Protection of Freedoms Act 2012 (Commencement No 8) Order 2013 (SI 2013/1906)). The amendments include new requirements that public bodies must provide datasets in response to FOIA requests:

• In a re-usable form so far as reasonably practicable.
• Licensed for re-use (if the public authority owns the copyright in the dataset).

The licence for re-use may include charging a fee for licensing re-use of the dataset, if the authority wishes. The Freedom of Information (Release of Datasets for Re-use) (Fees) Regulations 2013 (SI 2013/1997) govern the fees that public bodies can charge for the release under FOIA of the datasets in which they own copyright.

The Ministry of Justice has published a Code of Practice on datasets, giving guidance on their publication. The Information Commissioner’s Office (ICO) has also published guidance on the dataset changes to FOIA and on how to avoid inadvertent disclosures of personal or exempt data when publishing datasets. It also updated its model publication schemes, sector-specific definition documents and guidance, to reflect the datasets provisions.

In line with these changes, the Department of Health and HMRC have published consultations on the release of the datasets that they themselves hold.

Publicly-owned companies

POFA also amended the definition of “publicly-owned companies” in section 6 of FOIA with effect from 1 September 2013, under the Protection of Freedoms Act 2012 (Commencement No 8) Order 2013 (SI 2013/1906).

On 9 August 2013, the ICO updated its guidance on public companies that are subject to FOIA, to take into account the changes to section 6.

Research exemption

The exemption for research material that will be inserted into FOIA by the Intellectual Property Bill 2013-14 is still not in force, as the Bill is yet to be passed. The new section 22A will provide a qualified exemption from disclosure under FOIA for continuing programmes of research intended for future publication.

 CASE LAW: GENERAL

Judicial review of  use of ministerial veto fails (R (Evans) v HM Attorney General and another [2013] EWHC 1960 (Admin))

In July, the High Court rejected a judicial review challenge to the use of the section 53 FOIA ministerial veto to prevent the disclosure of advocacy correspondence between Prince Charles and government ministers dating from 2004 and 2005.

Manifestly unreasonable UT tests applied (Silverman v Information Commissioner and another (EA 2013/0027) and Yeoman v Information Commissioner and another (EA 2013/0008) and Harvey v Information Commissioner and Walberswick Parish Council (EA/2013/0022))

The First-tier Tribunal (Information Rights) (Information Tribunal) has been applying the Upper Tribunal (UT)’s recent tests for whether an information request fell under the “manifestly unreasonable” exception or vexatiousness exemption set out in ICO v Devon County Council and Dransfield.

• In cases under the EIR, it held that the environmental information requested must be published as it was in the public interest and not manifestly unreasonable to do so.
• In a FOIA case, the Information Tribunal ruled that a request for a parish council’s records of its responsiveness to previous FOIA requests was vexatious.

EIR: “public authorities” definition (Fish Legal v The Information Commissioner United Utilities, Yorkshire Water and Southern Water [2013] EUECJ C-279/12)

An EU Advocate General gave his opinion on how to determine who is a public authority under the EIR in response to questions from the UT to the ECJ on how to decide if a natural or legal person falls within the meaning of “public authority”.

CASE LAW: PERSONAL AND PAY DATA

There have been several cases relating to the disclosure of personal or pay data this quarter:

Employee payscale information was not personal data (South Lanarkshire Council v The Scottish Information Commissioner [2013] UKSC 55)

The Supreme Court upheld the decision of the Scottish Information Commissioner that information on the number of its employees in a particular post at a particular point on the council’s pay scales did not breach the DPA and should be provided to the applicant.

Job title held by more than one official can still be personal data (London Borough of Barnet v Information Commissioner and another (EA/2012/0261))

Referring to South Lanarkshire Council v The Scottish Information Commissioner, the Information Tribunal ruled that disclosing details of a job title held by more than one local authority official could constitute processing personal data.

Management pay information not “held by” public body where management employed by private service company (Hackett v Information Commissioner (EA/2012/0265))

The Information Tribunal held that an education charity did not hold information on the employment packages of its senior management team where that team was employed by a third party private company.

GMC complaint information was personal data (A v Information Commissioner and others, EA/2013/0014)

The Information Tribunal ruled that information concerning the General Medical Council’s handling of a complaint against a doctor was exempt from disclosure as it was personal data under section 40(2) of FOIA and that the GMC was entitled to issue a “neither confirm nor deny” response to the information requested.

Personal data in Building Regulations application was not exempt (Henderson v Information Commissioner (EA/2013/0055))

The Information Tribunal held that full details of a Building Regulations application was personal data; but disclosing this information would not contravene the first data protection principle set out in Schedule 1 to the Data Protection Act 1998 (DPA). Therefore, the exemption set out in section 40(2) of FOIA did not apply and the information was ordered to be disclosed, although the Information Tribunal was keen to highlight that this decision should not set a general precedent in respect of requests for information about Building Regulation applications.

Payment during, but not reasons for, sick leave must be disclosed (Innes v Information Commissioner (EA/2013/0044))

The Information Tribunal ruled that the reasons for a headteacher’s long-term sickness absence from his school did not have to be disclosed under FOIA as they constituted personal data, but whether the headteacher was being paid a salary during his absence must be disclosed.

Number of hours and overtime information was personal data (Yiannis Voyias v Information Commissioner (EA/2013/0003))

The Information Tribunal held that the London Borough of Camden was correct to refuse to disclose the number of hours its employees worked and how much overtime they were paid as, taken together with other information which was disclosed, to do so would infringe their rights under the DPA.