This is the second in our series of quarterly freedom of information law update blogs, which focuses 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. This post looks at freedom of information law developments from April 2013 to June 2013.
Please feel free to submit a comment below or contact us at feedback@practicallaw.com 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.
LEGISLATIVE DEVELOPMENTS
Protection of Freedoms Act 2012
The amendments to FOIA introduced by the Protection of Freedoms Act 2012 (POFA) are due to come into force very soon, although the Information Commissioner’s Office (ICO) still does not have a firm date. The new provisions include the duty to provide datasets in a re-usable form (section 102, POFA). For more information, see Practice note, Protection of Freedoms Act 2012: public sector implications: Part 6: freedom of information and data protection.
The ICO has confirmed that it will be publishing:
- A new section 45 code of practice on datasets to accompany the new provisions.
- New fees regulations on the fees that can be charged for the re-use of data sets.
Research exemption
An exemption for research material will be inserted into FOIA by the Intellectual Property Bill, which is currently at its Committee stage in the House of Lords. The new section 22A will exempt continuing programmes of research intended for future publication from disclosure. The exemption will be subject to the public interest test.
Costs limit
The Deputy Commissioner of the ICO, Graham Smith, has said that the costs limit under section 12 of FOIA is to be reviewed. The government is considering including the cost of determining whether to release the information within the costs limit assessment. This would likely mean that more requests will be rejected for exceeding the costs limit.
Mr Smith also said that:
- Internal reviews may become statutory under FOIA (as is already the case under the EIR).
- Fees may be being introduced for appeals against ICO decisions.
GUIDANCE
This quarter, there were several new and updated pieces of guidance from the ICO, as its project to improve and update all of its FOIA and EIR guidance continues. The Cabinet Office also published guidance on the use of private e-mail accounts.
ICO: vexatiousness
One of the most significant updates was to the ICO’s guidance on vexatious, manifestly unreasonable and repeat requests under FOIA and the EIR, following the recent Upper Tribunal rulings in Information Commissioner v Dransfield [2012] UKUT 440 (AAC), Craven v Information Commissioner [2012] UKUT 442 (AAC) and Ainslie v Information Commissioner [2012] UKUT 441 (AAC). Wikeley J’s rulings in these cases had criticised the existing ICO guidance.
The revised guidance moves away from characterising vexatiousness using five characteristics. Instead, it sets out 13 indicators of vexatiousness, which are explicitly not meant to be conclusive. The updated guidance emphasises that public bodies may refuse requests as manifestly unreasonable or vexatious wherever they believe the request to be disproportionate or unjustified, rather than as a last resort.
The ICO’s encouragement of public bodies’ reliance on the vexatiousness provisions may provide a boost to the Campaign for Freedom of Information, which is arguing against the government’s plan to increase the costs limit. The campaign claims that an increase is unnecessary due to Wikeley J’s rulings and the ICO’s revised guidance, which mean that unduly burdensome requests can now be refused on grounds other than cost.
ICO: publication schemes
The ICO is continuing to update its publication scheme guidance, including sector-specific definition documents for principal local authorities, government departments and higher education institutions.
ICO: charging under regulation 8 EIR
The ICO’s updated guidance on how to comply with the charging regime in regulation 8 of the EIR now clarifies what constitutes “a reasonable amount”, and explains that a public authority must have a published schedule of charges to be able to levy such a fee.
If you are dealing with charging for EIR requests, you may be interested in our new FOIA and EIR correspondence toolkit, which includes standard letters on EIR fees.
ICO: access to information about the deceased
The ICO has expanded its guidance on freedom of information requests for information about deceased people.
ICO: NHS guidance
This quarter, the ICO published FAQs on the changes to the structure of the NHS that came into force on 1 April 2013, to ensure that the new NHS bodies are aware of their obligations under FOIA and the EIR.
ICO: other updated guidance
The ICO has updated several other pieces of its guidance on other topics this quarter, including:
- The FOIA section 40 exemption and the EIR regulation 13 exception for personal information.
- The exemption under section 30 of FOIA; that is, refusing disclosure for the purposes of law enforcement.
- Information reasonably accessible by other means under section 21 of FOIA.
- The retention and destruction of information by public bodies.
- Requests for information on emissions under regulation 12(9) of the EIR.
Cabinet Office: private e-mails
The Cabinet Office has recently published guidance about the use and disclosure of private e-mails to conduct government business. The guidance was addressed to government departments but will be of interest to all public bodies subject to FOIA and the EIR, who may find that they have to investigate whether employees’ private e-mail accounts contain any information that should be included in a response to an information request.
CASE LAW
Personal data (Dicker v Information Commissioner (EA/2012/0250) and Julie White v Information Commisioner (EA/2012/0238))
There were several noteworthy rulings on personal data this quarter. The First-tier Tribunal (Information Rights) (Information Tribunal) held that:
- Surrey Primary Care Trust must disclose the precise salary and benefits paid to its Chief Executive Officer over a three-year period, as salary information was not exempt personal data and it was in the public interest for it to be published (Dicker).
- The names and addresses of dog breeders licensed by Carmarthenshire County Council must be published, as licensing is a public regulatory process and it was in the public interest to prioritise transparency over the privacy of the breeders on the list (White).
Information in document format (Independent Parliamentary Standards Authority v Information Commissioner and another (EA/2012/0242))
This quarter, the Information Tribunal provided guidance on what constitutes “information” under section 84 of FOIA when it ordered the disclosure of images of the original invoices submitted by MPs to the Independent Parliamentary Standards Authority.
The Information Tribunal ruled that aspects of a document’s form (such as handwriting, layout and letterheads) were capable of constituting information under FOIA and section 11(4) of FOIA did not permit disclosing information in a different format so as to extract this layout information.
Charging under the EIR (Leeds City Council v Information Commissioner and others (EA/2012/0020 and 0021))
In addition to the new ICO guidance on regulation 8 charges (see above), the Information Tribunal has also held that regulation 8(2) of the EIR prevents public bodies from charging to allow applicants to inspect information on site. The EIR only permit disbursements to be charged where inspection was requested but information is instead provided in an alternative format.
Information about the deceased (Trott and another v ICO (EA/2012/0195))
As well as the expanded ICO guidance on accessing information about the deceased, the Information Tribunal also dealt with this issue this quarter. It confirmed that a council was not required to disclose a deceased woman’s case notes to her family.