Practical Law

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 to September 2016. In this post, we look at:

• Recent case law.
• Legislative developments.
• The latest government statistics on FOIA requests.
• The Information Commissioner’s Information Governance Survey for Local Authorities.

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

National Archives not required to disclose details of Soviet defectors (Lownie v Information Commissioner)

The First-tier Tribunal (Information Rights) (FTT(IR)) has held that details of defectors to and from the Soviet Union requested from the National Archives by an author and journalist were exempt from disclosure under section 40(2) of FOIA. Section 40(2) provides an exemption from a public authority’s duty to disclose information if that information constitutes personal data under the Data Protection Act 1998 (DPA 1998).

The FTT(IR) held that the relevant individuals would have a reasonable expectation that the withheld information would not be disclosed to the public, since their defection might not be known to their government, or to all their friends, family, neighbours and colleagues. While there was some public interest in the information, the risk to these living individuals of disclosure, which could jeopardise their personal relationships, could not be underestimated.

The FTT(IR) dismissed the appellant’s argument that disclosure was necessary for the purpose of the legitimate interests of either:

• The appellant’s research and journalism.
• The public, for the purposes of paragraph 6(1) of Schedule 2 to the DPA 1998.

The appellant did not satisfy the FTT(IR) that disclosure would satisfy a “pressing social need” in this respect.

Discount figures offered by contractor in a DWP tender are exempt under FOIA (Jackley v Information Commissioner)

The FTT(IR) has held that the Department of Work and Pensions (DWP) did not have to disclose certain information from a tender contractor as it was exempt under the commercial interest exemption (section 43(2) of FOIA). The information related to the discounts offered to the DWP by the contractor in relation to a nationwide programme supporting people receiving benefits in finding employment.

The FTT(IR) held that disclosure of the information would prejudice the commercial interests of both the DWP and the contractor. The essence of a competitive tender as to price was the submission of “sealed bids”; if the price was disclosed there would be no such competition. Contractors would be discouraged from tendering in future competitions if they believed that confidential information would be revealed, which would affect future government outsourcing contractors. It would be unfair to the contractor for the information to be disclosed as its competitors had not been asked to do so and its position in future bids would be damaged.

The public interest favoured withholding the information and disclosure would impair the government’s ability to obtain best value from large procurement projects.

Sponsorship fees paid to Tate Gallery do not engage section 43(2) FOIA (prejudice to commercial interests) (Brendan Montague v Information Commissioner and another)

The FTT(IR) has held that information relating to the sponsorship fees that the Tate Gallery received from BP between 2007 and 2011 did not engage section 43(2) of FOIA (prejudice to commercial interests) and as such it must be disclosed. The FTT(IR) considered, in particular, that:

• The Tate is a public authority for the purposes of FOIA. Commercial sponsors should therefore be expected to be aware of this and to understand that any confidentiality clause, such as existed between the Tate and BP regarding information pursuant to the sponsorship agreement, is subject to FOIA.
• The breadth, variety and amount of sponsorship information in the public domain suggested that it was not rare for sponsorship figures of past contracts to be publicly known. Therefore, disclosure of the relevant figures would not be so unusual that the Tate would be prejudiced by the disclosure.
• The sponsorship fees were historic and would not, in the FTT(IR)’s view, weaken the Tate’s bargaining position in future sponsorship negotiations.

The case serves as a reminder that public authorities’ duties under FOIA are not excluded or limited by confidentiality clauses, and that public authorities and parties they contract with need to consider this carefully in contract negotiations.

Anonymised clinical trial data is not exempt under sections 22A, 40(2), 41 or 43(2) of FOIA and must be disclosed (Queen Mary University of London v Information Commissioner and another)

The FTT(IR) held that anonymised clinical data from a trial conducted by Queen Mary University of London from 2002 did not engage the following exemptions under FOIA:

• Section 22A (Research).
• Section 40(2) (Personal information).
• Section 41 (Information provided in confidence).
• Section 43(2) (Commercial interests).

Participants were assured “strict confidentiality” of the data which was collected from them during the trial. They were also informed, however, that the data could be shared with independent, non-QMU medical professionals by way of research collaboration (as transpired). The trial commenced in 2002 and its results were first published in 2011. The requester of the information asked QMU for anonymised, patient level data from the trial.

The FTT(IR) considered, in particular, that:

• The information included no direct identifiers.
• The risk of identification of individuals by the motivated intruder was remote.
• QMU’s provision of the data to independent scientists indicated its acknowledgement that anonymisation was in fact effective, or else QMU would have breached the patient consent agreements and the principles in the DPA 1998.
• There were no exceptional circumstances that warranted a retrospective application of section 22A of FOIA, pursuant to section 50(4) of FOIA.

The case will be of interest to public authorities which hold medical research databases, and serves as a reminder that there may be limits to the effects of confidentiality agreements between patients and medical research institutions. This is particularly the case where information is capable of being anonymised or is disclosed to other researchers by way of research collaboration.

Information relating to performance of outsourced care services held by council is disclosable under FOIA (ICO decision notice: FS50626059)

The Information Commissioner (IC) held that a local council could not rely on the exemptions from disclosure in sections 43(2) or 44 of FOIA to withhold information relating to the performance of Domiciliary Care Services providers which had been awarded contracts with the council.

The IC accepted that disclosure would unfairly penalise the DCS providers in future negotiations but considered on balance that several factors in the public interest weighed in favour of disclosure, including:

• The sensitive nature of care services.
• The benefits of increased transparency in service standards.
• The strong public interest in public authorities obtaining value for money in the face of widespread funding cuts.

The IC concluded that section 43(2) was not engaged.

The council’s application of section 44 was also rejected by the IC on the basis that section 21 of the Public Contracts Regulations 2015 did not prohibit disclosure.

Internal government communications regarding terms of reference for the Independent Airports Commission’s deliberations on airport capacity are not disclosable under EIR (Chris Ames v Information Commissioner)

The FTT(IR) has held that internal communications, consisting of emails between government departments settling the terms of reference for the Independent Airports Commission’s deliberations on airport capacity, should not be disclosed to the public.

The FTT(IR) reached its decision on the basis that:

• The disputed information fell within the internal communications exception in regulation 12(4)(e) of EIR.
• There was need for a “safe space” for policy making and that there would be a “chilling effect” on the conduct of future government business if internal communications were disclosed to the public in these circumstances. On balance therefore, the factors favouring the maintenance of the exception had more weight than those favouring disclosure.

The case is of interest as it is one of the few instances where the “chilling effect” argument has succeeded in protecting internal communications from disclosure to the public.

FTT(IR) rules on FOIA request for police interview transcripts (Corke v Information Commissioner)

The FT(T(IR) has allowed in part an appeal from the IC’s decision concerning a journalist’s request for copies of transcripts of police interviews with a suspect, who was subsequently found guilty of a murder of his teacher, which had been withheld under section 40 of FOIA (personal information). The FTT(IR) considered that:

• Confirming the IC’s decision, disclosure of the personal data of individuals mentioned in the interviews, such as pupils, staff and members of the offender’s family would contravene the first data protection principle and should be withheld under section 40.
• It was in the public interest for the offender’s personal data in the transcripts, in so far as it could be disentangled from the personal data of other individuals (such as by anonymisation), to be disclosed. The FTT(IR) overturned the IC’s decision in this respect.

LEGISLATION

Draft Freedom of Information (Scotland) Act 2002 (Time for Compliance) Regulations 2016 laid before Scottish Parliament

The Scottish Ministers laid the draft Freedom of Information (Scotland) Act 2002 (Time for Compliance) Regulations 2016 before the Scottish Parliament on 7 September 2016. The TfC Regulations 2016 propose to extend the time in which Scottish grant-aided schools and independent special schools are required to respond to:

• Requests for information made under the Freedom of Information (Scotland) Act 2002 (FOIA Scotland 2002).
• Requests for a review of such a school’s actions or of its decision in relation to requests for information under FOIA Scotland 2002.

If they are brought into force, the effect of the TfC Regulations 2016 will be to allow applicable schools to discount non-school days, and particularly holidays, when calculating timescales for responses under the FOIA Scotland 2002. Provided that they are approved by the Scottish Parliament, the TfC Regulations 2016 are intended to come into force on 1 December 2016.

LATEST GOVERNMENT FIGURES ON FREEDOM OF INFORMATION REQUESTS PUBLISHED

The government has published its quarterly statistics on the FOIA and EIR requests received by central government departments between April and June 2016. These indicate, in particular:

• A 4% decrease in requests received compared to the same period in the previous year.
• That over 50% of requests made to state departments are to the Department of Work and Pensions, Ministry of Justice, Ministry of Defence and the Home Office.
• 89% of all requests are responded to “in time”.
• Of the 11,037 requests made in this period, 32% were granted in full, 35% were withheld in full or in part, and 26% were not capable of being resolved (either requiring further clarity or relating to information that was not held by the responding body).
• The exemption under section 40 of FOIA (personal information) was the most commonly cited exemption.

For further information and analysis, please see our summary of the government’s report.

INFORMATION GOVERNANCE SURVEY FOR LOCAL AUTHORITIES

The IC has launched a survey in order to understand more about information governance frameworks in local councils. The answers that are provided will be used to identify common areas of good practice and weakness within the sector. The information will help the IC to target the advice that it offers and will assist it in improving information governance in local government generally.

Responses to the survey will be anonymous so those responding or the individual council will not be identified.