Practical Law

PLC Public Sector reports:

Public authorities regularly come in for criticism about the way that they deal with requests for information made under the Freedom of Information Act 2000 (FOIA) or the Environmental Information Regulations 2004 (SI 2004/3391) (EIR).  Often harsh words are both justified and necessary.  However, a look at the differing approaches taken by “differently constituted” first-tier tribunals to the same issues highlights the problems that public authorities face.  The correct action to take is not always easy to identify as they try to deal with an ever increasing workload and fewer resources in the face of a series of mixed messages from the tribunal.

Access to information case law is still in its relative infancy with the current FOIA and EIR regimes still some way off celebrating their first decade. Therefore, it is perhaps unsurprising that it is fairly easy to find examples of where the First-tier Tribunal (Information Rights) has taken an approach which completely contradicts the approach taken in a previous tribunal decision.  This is not in itself necessarily a problem and there is no suggestion that tribunals should be bound by prior decisions of a tribunal of equal standing.  However, for public authorities still coming to terms with the regimes and looking for guidance on day-to-day issues it does pose a problem, especially as often the reasons for reaching a different conclusion are not explained.

The most high profile example of conflict in tribunal decision-making has probably been the pantomime-type approach adopted when deciding a public authority can claim new exemptions for the first time before the Information Commissioner and the tribunals – that is, exemptions which were not raised in the original response to the requester (oh no you can’t  … oh yes you can … oh no you can’t … and so on).  However, it is difficult to have sympathy with public authorities about this confusion, as the advice is simple; whatever the answer, all of the potentially applicable exemptions should be considered at the outset, if this is done then this argument becomes irrelevant.

Of more concern is the recent decision in Jones (on behalf of Swansea Friends of the Earth) v Information Commissioner [2012] (UKFTT 2011/0156). In this case, the tribunal considered that for the exception under regulation 12(5)(e) of the EIR (confidential information) to apply the information requested must have been communicated by a third party to the public authority and that the exception would not therefore cover either information:

• Belonging to the authority.
• Brought into existence through a process of negotiation between the public authority and a third party.

Accordingly, the tribunal ordered the disclosure of information relating to financial guarantee arrangements put in place by a landfill site operator as a condition of obtaining a permit to operate a waste landfill site from the Environment Agency.  In reaching this conclusion the tribunal:

• Relied on the previous tribunal decision in Derry City Council v The Information Commissioner [2006] (EA/2006/0014) which had reached a similar conclusion.
• Acknowledged that it was extending the scope of Derry as that decision related to the exemption in section 41 of FOIA which specifically refers to “information obtained” by the public authority from any other person and there is no such reference in regulation 12(5)(e) of the EIR.

This all seems relatively straightforward and something that public authorities can take account of when responding to requests in the future.  That is until the decision of the tribunal in South Gloucestershire Council v Information Commissioner and Bovis Homes Limited (EA/2009/32) is considered.  In this decision, relating to the regulation 12(5)(e) exception, the tribunal held that it did not matter where the information came from or who had created it, only whether it was confidential (that is, that the duty of confidentiality could be owed by or to the public authority).  The tribunal also stated that:

“This exception stands in contrast with the exemption in FOIA s41, which is expressly directed to information received in confidence by a public authority, where disclosure by the authority would amount to an actionable breach of confidence.”

 Unfortunately, the decision in Jones makes no reference to South Gloucestershire (in the same way that Derry was not referenced in South Gloucestershire!) and we therefore have no insight as to why a different approach may have been appropriate in this case.

So where does that leave public authorities?  The simple answer is in a position where not too much reliance should be placed on decisions made at first-tier tribunal level.  They provide good guidance on how things may be addressed but not much more. Hopefully as time passes and more cases make their way to the Upper Tribunal and beyond, the task for authorities may become more straightforward and a more consistent approach adopted.

For those that are seeking guidance from previous tribunal and court decisions, see our FOIA and EIR case tracker.