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 April to June 2016.
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.
CASE LAW
Personal notes taken at a council meeting disclosable (William Chapman v Information Commissioner and Duddon Parish Council)
The First-tier Tribunal (Information Rights) (FTT(IR)) has ruled that personal notes taken by individuals attending a meeting to discuss council business should have been disclosed under the Environmental Information Regulations 2004 (EIR). The FTT(IR) ruled that notes taken by individuals attending a meeting convened by Duddon Parish Council to discuss the renewal of the lease of an allotment field, including those taken by the council’s solicitor and the parish clerk, fell within the ambit of regulations 2(1)(c) and 3(2) of the EIR and should have been disclosed. The case is a reminder that personal or “unofficial” notes taken during council meetings may still fall within the ambit of the EIR if they relate to activities undertaken on the council’s behalf.
Exemption for court records applies to statistical data drawn from court documents (Brown v The Information Commissioner and The Ministry of Justice)
The Upper Tribunal (UT) has held that the class-based exemption for court records under section 32(1)(c) of the Freedom of Information Act 2000 (FOIA) applies to statistical data drawn from court documents. The case is of interest as it reaffirms the point that statistical data drawn from the content of documents that constitute exempt information is also exempt.
Information relating to the selection of Chilcot Inquiry committee members must be disclosed (Christopher Lamb v Information Commissioner)
The FTT(IR) has ordered the disclosure of information relating to the selection of Chilcot Inquiry committee members despite a reliance by the Cabinet Office on the section 35(1)(a) FOIA (formulation of government policy) exemption. This decision makes it clear that those involved in high profile controversial inquiries of this nature should be alert to the possibility of disclosure on public interest grounds when dealing with qualified exemptions such as section 35(1)(a) and as such will be unlikely to be able to rely on “chilling effect” arguments.
Section 38 FOIA (health and safety) exemption does not apply to information relating to the staffing hours at an animal research facility (Cruelty Free International v IC and Imperial College London)
The FTT(IR) has held that the section 38 (health and safety) exemption under FOIA did not apply to information relating to the staffing hours at an animal research facility and as such it must be disclosed.
This decision clarifies the standard of evidence required as to the likely effect of disclosure in relation to health and safety concerns when a party is attempting to rely on the section 38 exemption under FOIA.
FTT(IR) confirms when it is possible for a public authority to change its position to give a neither confirm nor deny response after originally confirming that it held the information requested (Frank Richardson v Information Commissioner)
The FTT(IR) has clarified when it is possible for a public authority to change its position at a later stage to give a neither confirm nor deny (NCND) response after originally confirming that it held the information requested. The FTT(IR) confirmed in relation to NCND responses that:
- They are not available where the fact that the public authority holds the information is already in the public domain (that is, they have not been disclosed in informal private correspondence).
- The ability to change position and rely on a NCND response at a later stage was different to the right of a public authority to switch its reliance on different exemptions at a later date as their relevance would be unaffected by a failure to cite them at the outset.
Minutes of Local Safeguarding Children Board not held by council for purposes of FOIA (Barnes v Information Commissioner and another)
The FTT(IR) refused an appeal against the Information Commissioner’s decision that information requested was not held by the local authority for the purposes of section 3(2) of FOIA. The appellant appealed the Information Commissioner’s decision upholding the council’s decision to refuse his request for copies of the minutes held by council representatives of the Local Safeguarding Children Board (LSCB). The appellant disputed the council’s assertion that the information, which it held on behalf of the LSCB, was not disclosable by virtue of section 3(2) of FOIA, given that the council had disclosed minutes of the Stoke and Staffordshire Local Enterprise Partnership (SSLEP), a similar independent body with council representation.
In refusing the appeal, the FTT(IR) was satisfied that the information requested was not held by the council for the purposes of FOIA. The expectation of members was that the minutes were held on behalf of the LSCB for the purposes of fulfilling their functions as board members and there was a clear demarcation between a member’s council duties and their role on the LSCB board. There was no evidence that non-member officers would be provided with the minutes in order to action any task and the FTT(IR) was satisfied that the scrutiny role of the LSCB was an activity performed on behalf of that body and not on behalf of the council.
The decision clarifies that whether or not material held by independent bodies with council representation is disclosable under FOIA will depend upon an examination of the particular activities of that body.
Parts of a framework contract between Wiltshire Council and BT for the provision of broadband services must be disclosed (Wiltshire Council v Information Commissioner)
The FTT(IR) has ordered the disclosure of parts of a framework contract between Wiltshire Council and BT for the provision of broadband services. The contract was part of an approved state aid scheme, subsidising rural broadband.
The FTT(IR) pointed to the public interest in obtaining information that would enable forward planning. The decision, made despite factual evidence of commercial prejudice, shows that it can be difficult to apply FOIA exemptions where public money is at stake.
Councillor who defaulted on council tax must be named (DH v Information Commissioner and another)
The UT has ordered disclosure under FOIA of the name of a local councillor who defaulted on council tax payments, holding that the name could not be withheld from disclosure under the exemption for personal data (section 40).
The case illustrates that councillors are not in the same position as members of the public when it comes to scrutiny of their private affairs. The fact that it was council tax in particular that was unpaid proved to be significant.
Council not required to disclose the outcome of internal investigation into why a council officer had not been issued with a parking ticket (Pritchard v Information Commissioner)
The FTT(IR) has refused an appeal against an Information Commissioner’s decision that a local council was not required to disclose the outcome of its internal investigation into why a council officer had not been issued with a parking ticket as it was exempt from disclosure under section 40(2) of the FOIA.
The FTT(IR) confirmed that disclosing the information would breach the first data protection principle of fair and lawful processing. In reaching this decision, it considered the expectation of the council employees, together with the likely consequences of processing the information on them. It took into account their seniority; X, as “middle management”, would have a higher expectation of accountability than the officers, but this did not alter his expectation of confidentiality. The individuals had already been subjected to public scrutiny through the posting of the video on the internet. Publication of the outcome of the investigation would be unusual, professionally damaging and could potentially impact upon their employment prospects.
Information held by Westminster Council relating to a trading standards investigation exempt from disclosure (Cairns v Information Commissioner)
The FTT(IR) has ruled that information held by Westminster Council relating to a trading standards investigation was exempt from disclosure due to it being prohibited by another enactment, under section 44 of FOIA.
The Enterprise Act 2002 prohibits the disclosure of specified information relating to an undertaking’s business that came into a public authority’s possession through the exercise of statutory functions, including information relating to Consumer Protection from Unfair Trading Regulations 2008 functions.
The request was for confirmation that a Marks & Spencer charging error was due to employee fault and that M&S can correct tilling systems centrally. Surrey County Council’s trading standards division had advised the requester to contact Westminster, due to Westminster’s “primary authority” trading standards relationship with M&S. Westminster refused to answer, citing section 44 of FOIA and Part 9 of the Enterprise Act 2002.
Duchy of Cornwall is not a public authority for the purposes of the Environmental Information Regulations (Attorney General for the Prince of Wales v Information Commissioner and another)
The UT has held that the Duchy of Cornwall does not have legal personality and is not a public authority for the purposes of the EIR. In reaching its decision, the UT applied the ruling in Fish Legal v Information Commissioner and others. The judgment provides a useful gloss on the Fish Legal decision, which did not deal with whether entities were required to be legal persons in order to be subject to the EIR.
The UT held that the decision of the Court of Justice of the European Union in Fish Legal meant that, for an entity to be a public authority under EIR regulation 2(2)(c):
- It must be a legal person governed by public or private law.
- The legal regime applicable to it entrusts it with the performance of services of public interest in the environmental field.
- It must have been vested with special powers.
The case may be of interest to bodies that do not themselves have legal personality (such as executive agencies) but that carry on public administrative functions relating to environmental information.
Mere fact of physical possession of information on it’s own does not satisfy the test as to whether information is “held” under the EIR (Holland v The Information Commissioner and another)
The UT has held that the mere fact of physical possession of information does not satisfy the test as to whether information is “held” under the EIR.
This case concerned a request for copies of review reports prepared by a professor working at Cambridge University in a voluntary role for the Inter-Governmental Panel on Climate Change (IPCC).
The UT held that the professor acted in a private capacity when assisting the IPCC. As the information was not produced or received by the university, the question of possession did not need to be determined under the EIR.
This case is a helpful confirmation of the key points to be considered when deciding if an authority holds requested information for the purposes of the EIR or FOIA, namely whether the information is in the possession of the authority, and was it the producer or recipient of the information?
A factual determination is required as to how the information has come to be in the possession of the authority. It must be determined whether the information was produced or received by means which were unconnected with the authority or whether it was produced or received by means which were connected with the authority. The connection must be such that it can be said that the production or receipt of the information is attributable to the authority.
UK OPEN GOVERNMENT NATIONAL ACTION PLAN 2016-2018
On 12 May 2016, the government published the UK Open Government National Action Plan 2016-18. This is intended to continue the implementation of the government’s manifesto commitment to maximise openness and transparency in government operations and includes a commitment to publish a new code of practice under section 45 of FOIA.
The government has committed to ensure transparency on issues such as FOI performance and senior pay and benefits across the whole public sector and intends to issue guidance to public authorities to set a higher standard for the publication of senior level pay and benefits by Summer 2016. It will also issue guidance in a revised section 45 Code of Practice to set a standard that public authorities with 100 full time equivalent employees or more should publish statistics on their FOI performance.
The Code of Practice will be revised to ensure the range of issues on which guidance can be offered to public authorities is sufficient and up to date. The government aims to consult on and issue a new Code of Practice by the end of 2016.
GUIDANCE
Briefing paper on patient health records and confidentiality published
On 25 April 2016, the House of Commons Library published a briefing paper on patient health records and confidentiality. The briefing paper:
- Summarises the law governing access to patient health records in England and describes how patients may request access to their own records, including the circumstances in which access to the records of others may be allowed.
- Details the current safeguarding arrangements governing the confidentiality of patient information, including the outcomes of reviews of the standards of security for patients’ confidential data.
- Explains the rules on statutory and public interest disclosures of patient information, information sharing for people who lack mental capacity and relatives’ access to information on hereditary conditions.
The paper will be of interest to those wishing to understand more about the rules on the access to, and the confidentiality of, health information, and possible future developments of policies in this area.
LEGISLATION
On 2 March 2016, the Scottish Ministers made the Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2016, which will come into force on 1 September 2016. The Order designates certain bodies as public authorities, which are subject to the Freedom of Information (Scotland) Act 2002. The following bodies are designated as public authorities since they exercise functions of a public nature under section 5(2)(a) of the Freedom of Information (Scotland) Act 2002:
- Grant-aided schools and independent special schools, in relation to their running of school functions.
- Persons providing a “secure accommodation service” for children and young people, as defined in paragraph 6 of schedule 12 to the Public Services Reform (Scotland) Act 2010.
- Scottish Health Innovations Limited, in relation to its promotion of research and development within the National Health Service in Scotland.
The Order also designates as public authorities (under section 5(2)(b) of the Act) private contractors or sub-contractors of Scottish Ministers who run a prison or part of a prison in Scotland, in relation to their activities running prisons.