Our quarterly freedom of information law update blogs focus 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 on the topic. This post looks at freedom of information law developments from October to December 2014.
Please feel free to submit a comment below or send us an Ask query 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.
FOIA CODE AND SCOPE
This quarter, the Ministry of Justice (MoJ) announced that before the 2015 general election, it will issue an updated code of practice under section 45 of FOIA. The updated code will promote transparency over contracts with private companies and specify stricter time limits for applying the public interest test and for reviewing FOIA decisions.
The MoJ also announced plans for extending the scope of FOIA to cover more bodies. Before the general election in 2015, FOIA will be extended to cover more regulatory bodies, including the Housing Ombudsman, the Advertising Standards Authority, the Solicitors Regulation Authority and the Panel on Takeover and Mergers. It was also announced that Network Rail will be made subject to FOIA in relation to its public functions by secondary legislation, to be introduced “at the next opportunity with the intention of making Network Rail subject to the Freedom of Information Act by April 2015.”
The MoJ will also publish a consultation on extending FOIA to cover private companies with “effective monopolies” over public services, such as the National Grid, water and energy companies and some housing associations. The consultation will also cover what costs may be included when assessing the section 12 costs limit. It is not thought that any legislation resulting from this consultation will be presented to Parliament before the next general election.
The changes to the reach of FOIA reflect the government’s transparency agenda. As more private bodies become involved in providing public services, FOIA may be extended to increasing numbers of organisations.
ICO TRIENNIAL REVIEW
In November, the MoJ announced that it was conducting its triennial review of the Information Commissioner’s Office (ICO). The review aims to consider how best the ICO’s key functions can be delivered, including whether it should continue to exist at arm’s length from government.
If the review concludes that the ICO should continue to perform its functions in its current form, it will go on to consider the potential for creating efficiencies and whether the control and governance arrangements continue to meet the principles of good corporate governance.
Contributions to the review are invited from people and organisations, with a closing date of 16 January 2015. The results of the review are likely to have an impact on how freedom of information law is regulated and enforced in the future.
TRANSPARENCY
Local Government Transparency Code 2014
In October, the Department for Communities and Local Government (DCLG) published an updated version of its Local Government Transparency Code 2014 (Code), plus associated FAQs, ahead of the Code coming into force on 31 October 2014. The updated version replaces the first version published in May 2014, which had never come into force before it was updated. The Code applies in England only, where it replaces the 2011 Code of Recommended Practice for Local Authorities on Data Transparency (2011 Code).
The new code sets out the minimum information that local authorities must publish quarterly or annually and in an open and machine-readable format, and recommends the information local authorities could also consider publishing voluntarily. The emphasis is very much on the openness and reusability of local authority data and the Code goes far further than the 2011 Code in the minimum information that it requires local authorities to publish. For example, the Code requires authorities to publish several details of any new contracts or agreements they enter into with a value exceeding £5,000, each quarter. The first quarter’s information must be published by the end of December 2014.
In December 2014, the government also published a transparency code for smaller authorities (such as parish councils) with a turnover not exceeding £25,000.
The Local Government Association has published guidance for local authorities on the Code. It has previously expressed concerns about how local authorities will fund the additional transparency burdens that the Code places on them. The government has agreed new funding to help local authorities meet the ongoing annual costs of meeting the mandatory requirements in the Code.
20-year rule for access to public records to come into force on 1 January 2015
On 8 December 2014, the Constitutional Reform and Governance Act 2010 (Commencement No 9) Order 2014 was made, which will bring fully into force on 1 January 2015 section 45(1) of the Constitutional Reform and Governance Act 2010. Section 45(1) reduces the period by the end of which public records are required by section 3(4) of the Public Records Act 1958 to be transferred to the Public Records Office from 30 to 20 years.
This is another move towards greater public access to government records, although arguably 20 years is still a relatively long time to wait!
Open Government Licence
On 31 October 2014, the National Archives published version 3.0 of the Open Government Licence (OGL). The OGL permits the re-use of government and other public sector information without charge and re-users under version 3.0 must now publish an attribution statement.
CASE LAW
CPR 45.41 not compliant with Aarhus Convention (Secretary of State for Communities and Local Government v Venn)
The Court of Appeal has ruled that Civil Procedure Rule (CPR) 45.41 (which specifies which claims are entitled to costs protection by the granting of a protected costs order (PCO)) is not compliant with the Aarhus Convention, because it does not allow the court to grant PCOs for statutory appeals and applications such as a statutory claim under section 288 of the Town and Country Planning Act 1990 for the court to quash a planning decision. The court gave a clear indication that there is a need to review and amend CPR 45.41 as a matter of urgency.
The case is part of a line of cases concerning the UK’s failure to comply with its requirements under the Aarhus Convention. An amended CPR 45.41 that is compliant with Aarhus will hopefully increase access to justice on cases involving access to environmental information.
Public interest in favour of disclosing badger culling information (Department for Environment Food and Rural Affairs v The Information Commissioner and another)
The Upper Tribunal (UT) has held that risk and issue logs (RILs) of project board meetings on badger culling to restrict the spread of bovine TB should be disclosed to the Badger Trust under the EIR, since the RILs:
- Were not documents that reflected and disclosed the content of robust, candid and innovative discussion by the project board.
- Would not give rise to a significant risk of damage to the public interest if disclosed, now or as at September 2012 (the date that the public interest balancing exercise should have been conducted).
The UT took the unusual step of ruling on the public interest before it ruled on which, if any, EIR exception applied to the facts. A directions hearing would decide this later.
Ruling on inherent weight of section 35(1)(b) exemption (Cabinet Office v Information Commissioner)
The UT also ruled this quarter that the First-tier Tribunal (Information Rights) (FTT(IR)) need not have given an inherent weight against disclosure to the fact that the exemption in section 35(1)(b) of FOIA (ministerial communications) applied to particular facts. The UT ruled that, when considering the section 35(1)(b) exemption, the facts of the each particular case should be applied to the potentially relevant public interest factors on a case-by-case basis.
The judgment could call into question the settled position regarding section 35(1)(c) (advice by law officers), as previous case law has held that when this exemption applied, there would be an inherent weight against disclosure.
Dismissed police officers’ names need not be disclosed (Beaver v Information Commissioner and another)
This quarter, the FTT(IR) held that the Lancashire Constabulary was not required to disclose under FOIA the names of four police officers dismissed for gross misconduct, because the information requested was sensitive personal data within section 2(g) of the Data Protection Act 1998 since it related to “the commission or alleged commission … of any offence”. The exemption in section 40(2) of FOIA therefore applied. Despite arguments that the public had the right to learn the identities of these former police officers who had committed gross misconduct, the FTT(IR) ruled that it would be unfair to reveal such sensitive personal data when there was a reasonable expectation that it would remain private.