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 July 2015 to September 2015.
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.
INDEPENDENT COMMISSION ON FREEDOM OF INFORMATION
On 17 July 2015, the government announced the establishment of the Commission on Freedom of Information, an independent cross-party commission tasked with reviewing the freedom of information regime. The Commission is expected to examine issues including the burden imposed by the regime, whether it adequately recognises the need for a “safe space” for policy making, and the ministerial veto over disclosure.
The Commission is expected to report to the Minister for the Cabinet Office by the end of November 2015.
The Commission published a call for evidence on aspects of FOIA on 9 October 2015.
RESPONSIBILITY FOR FOI TRANSFERRED TO CABINET OFFICE
The government also announced that responsibility for freedom of information policy transferred from the Ministry of Justice to the Cabinet Office from 17 July 2015.
TRIBUNAL FEES PROPOSALS
In July 2015, the government published a consultation on proposals to introduce fees for appeals within the General Regulatory Chamber, which would cover tribunal appeals from decisions of the Information Commissioner under FOIA or the EIR. The government proposes to charge a fee of £100 to issue proceedings within the GRC, which would entitle the claimant to a decision based on a review of the papers. If the claimant elects to have an oral hearing instead, then it will incur a further fee of £500.
TRANSPARENCY
The Re-use of Public Sector Information Regulations 2015 came into force on 18 July 2015. The Regulations revoke and replace the Re-use of Public Sector Information Regulations 2005 in order to implement Directive 2013/37/EU. They place a general duty on public sector bodies to permit re-use of information and prescribe how re-use requests should be treated, charged for, and responded to. The Regulations also amend FOIA to make information that forms part of certain datasets subject to the Regulations instead of the relevant sections of FOIA.
The ICO and the NA have published guides to the Regulations.
For more information on the re-use of public sector information regime, see Practice note, Re-use of public sector information.
CASE LAW
Charging for environmental information: ECJ gives clarification (East Sussex County Council (Judgment))
The ECJ gave its decision on what may be charged for when responding to an environmental information request, following a request for a preliminary ruling by the FTT(IR). The ruling gives some clarity in particular to the question of charging for property search information, which has been seen as a rather grey area of law. For more information, see Practice note, Environmental Information Regulations 2004: Charging for requests.
The ECJ held that:
- A charge for supplying environmental information may not include the costs of establishing and maintaining a database used to answer requests for information. However, any overhead costs attributable to staff time involved in supplying the information and photocopying or postal costs may be charged, provided that the total amount charged is reasonable and does not deter those wishing to exercise their right to request environmental information.
- Member states may allow public authorities to make up their own minds on what is a “reasonable amount” to charge, provided that the decision as to reasonableness is subject to objective review in accordance with the principles of equivalence and effectiveness, and the review relates to whether the public authority making the charge has complied with the Directive in the view of the referring tribunal.
Local authorities will need to ensure that their environmental information charging policies are compliant with the ECJ’s ruling.
Upper Tribunal guidance on application of EIR internal communications exception to “live” policy documents (Amin v Information Commissioner and DECC)
The UT provided guidance on the “internal communications” exception under regulation 12(4)(e) of the EIR following a request to the DECC for communications about power stations’ emissions performance standards.
The UT held that, in order to rely on the exception, public authorities must present evidence to prove that a relevant policy development was still ongoing and to explain why this required a “safe space” on the facts. However, the UT also stated that tribunals may take into account evidence that the policy relevant to the requested information may need to be reconsidered during a later parliamentary process, and any previous disclosure may disrupt that future parliamentary process. The types of prejudice that may be taken into account include anything that would or might result in the policy being formulated less efficiently or less well.
The ruling gives authorities relatively broad scope to rely on prejudice to possible future policy formulation in arguing against disclosure.
UT upholds Information Tribunal’s order that ICO must disclose journalists’ names (Information Commissioner v Christopher Colenso-Dunne)
The UT upheld a decision of the First-tier Tribunal (Information Rights) that section 40(2) of FOIA did not exempt from disclosure the names of journalists referred to in a privacy report published by the ICO. The journalists were referred to in the report as they had instructed private investigators involved in the illegal trade of personal information.
The UT decided that the names were not sensitive personal data so the section 40(2) exemption did not apply. It therefore ordered the ICO to disclose the names under FOIA.
UT sets aside decision that NMC must confirm or deny whether it held names of witnesses interviewed at investigating committee hearing (Information Commissioner v CF and another)
The UT set aside an FTT(IR) decision that the Nursing and Midwifery Council (NMC) was obliged under section 40(5)(b)(i) of FOIA to confirm or deny whether it held the names of witnesses interviewed at an investigating committee hearing. The FTT(IR) had failed to take account of the fact that the:
- Witnesses were data subjects to whom the data protection principles under paragraph 6(1) of Schedule 2 to the Data Protection Act 1998 applied.
- Information held by the NMC would be available elsewhere.
The UT therefore remitted the case to the FTT(IR) for rehearing. The UT’s statement that there was no general principle that the subject of a complaint without merit had an unqualified right to privacy may be of interest to regulatory authorities.
FTT(IR) holds that reasons for headteacher’s absence and information about school complaints should be withheld from disclosure (Innes v Information Commissioner)
The FTT(IR) ruled that information about a headteacher’s absence and complaints made to the school should be withheld from disclosure under section 40(2) of FOIA because they constituted personal data and disclosure would not be fair.
The FTT(IR) considered that the data subjects would expect such information to be treated confidentially, and that there were other means by which the management of complaints could be scrutinised. The decision is interesting for its consideration of the factors that the FTT(IR) balanced in determining whether the disclosure would be fair in accordance with the first data protection principle.
FTT(IR) orders university to provide further information about how estimate for purposes of FOIA costs limit was reached (Kirkham v Information Commissioner)
The FTT(IR) directed the Information Commissioner to seek further information from Cambridge University about how it had reached its estimate of the costs of responding to a FOIA request, in particular regarding the University’s automated searches of its email systems.
It is unusual for a tribunal to probe in detail into how an estimate of costs has been arrived at, particularly where it had already refused the other grounds of appeal. The preliminary ruling suggests that public authorities should be realistic when defining search parameters and make sure that they address any suggestions by the requester about information search techniques.
FTT(IR) rules council correctly refused to deal with written request for questions to be answered verbally at a council meeting as request made under FOIA (O’Hagan v Information Commissioner)
An applicant argued that a set of questions he submitted about library closures, which were answered verbally at a council meeting as requested, were not converted into FOIA requests simply because the requests had not been dealt with to his satisfaction.
The FTT(IR) emphasised that by referring to the council meeting in his email questions, the applicant had specifically taken himself outside of the provisions of FOIA.
Information Commissioner orders government to disclose unredacted shale gas report in full (Decision Notice FER0562043)
The government published an unredacted early draft of a report entitled Shale Gas Rural Economy Impacts, following an ICO Decision Notice. Defra had initially refused to provide a copy of the unredacted report, arguing that regulation 12(4)(e) (internal communications) and regulation 12(4)(d) (unfinished documents, incomplete data) of the EIR and section 35(1)(a) (formulation and development of government policy) of FOIA applied. However, the Information Commissioner decided that they did not apply.
The redacted sections of the report seem to include information on the impact of fracking on house prices, rural businesses and local services. However, Defra has since sought to play down the report by emphasising that the government does not consider it to be analytically robust and that it includes vague assumptions that are not supported by evidence. Work on the report was discontinued.