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 2014.
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.
NEW FOIA EXEMPTION
This quarter saw the enactment of a new FOIA exemption, as section 20 of the Intellectual Property Act 2014 (IPA 2014) introduced section 22A into FOIA, which is a qualified exemption that covers information obtained in the course of, or derived from, a programme of research. The exemption is intended to allow researchers to validate their work before it is put into the public domain.
It is expected that the provisions of the IPA 2014 will start to come into force from October 2014.
The ICO has published guidance on the right to recorded information and requests for documents. The guidance provides advice on how to deal with requests under FOIA or the EIR for copies of original documents, for specific documents, and for types of documents. It also includes advice on dealing with requests for documents containing exempt information. The ICO has also published an updated definition document for wholly-owned companies, which provides guidance on the types of information that the ICO expects wholly-owned companies to make available in order to meet their commitments under the FOIA model publication scheme.
The ICO also revised its definition document for health regulators in April.
LOCAL GOVERNMENT TRANSPARENCY CODE
The DCLG has published the Local Government Transparency Code 2014, which sets out the minimum information that local authorities must publish quarterly or annually and in an open and machine-readable format, and recommends the that information local authorities could consider publishing.
The publication requirements may have an impact on the volume of information that will need to be requested through FOIA or the EIR, since so much information will already be available.
FUTURE INFORMATION LAW DEVELOPMENTS
The MoJ published a call for evidence this quarter, as part of its review of the balance of competences between the UK and the EU in the area of information rights. Responses to the call for evidence should be submitted by 1 July 2014.
This quarter, the ICO published its information rights plan for the next three years, in which the IC stated that he expects the ICO’s role to change over the next three years.
CASE LAW: FOIA APPEALS PROCEDURE
FTT(IR) cannot remit properly made decision notices back to ICO for new decision (Information Commissioner v Bell and Clucas v Information Commissioner)
This quarter saw two separate cases that involved the powers of the FTT(IR) to remit cases back to the ICO after the FTT(IR) had ruled on them.
In Bell, the UT ruled that once a case had been appealed from the ICO to the FTT(IR), the FTT(IR) could not make an order and then remit the case back to the ICO for another decision notice to be issued. The UT ruled that the ICO’s powers to act under section 50 had been exhausted once the ICO had served the decision notice on Mr Bell, and that there is no power in the legislative structure for the ICO to revisit a notice.
In Clucas, the FTT(IR) criticised the UT’s reasoning in Bell, but (it seemed, regretfully) concluded that it was bound by the precedent that it created. The FTT(IR)’s reading of Bell was that the UT had wrongly created a distinction between decision notices that were validly made despite being wrong in law (which the UT decided could not be remitted back to the ICO for a decision notice to be issued since FOIA gave the ICO no powers to revisit its decisions) and decision notices that were not validly made (which, following the UT’s logic, could be remitted back to the ICO, since they had never really been made in the first place). The FTT(IR) disagreed with this distinction, describing such distinctions as “cumbersome” and stating that “the more natural and convenient interpretation of [sections] 57-58 would be that the right of appeal arises whenever the Commissioner has served a notice, or what purports to be a notice, irrespective of whether it is in law valid or invalid.”
We can only hope that a future UT considers both Bell and Clucas and finds a satisfactory method of resolving this issue.
CASE LAW: INVESTIGATIONS
Inquiry exemption applies to Charity Commission investigations (Kennedy v Charity Commission)
This quarter, the Supreme Court found that the section 32 “inquiry” absolute exemption applied to documents arising from the Charity Commission’s inquiry into a charity, and the court refused to limit the exemption to current inquiries only by reading section 32 in light of the requesting journalist’s right to freedom of expression under Article 10 of the ECHR. However, the Supreme Court did rule that the appellant could still use charities legislation and common law to challenge the refusal to disclose the documents.
The ruling is a reminder that FOIA is not the only source of disclosure obligations and that public authorities may not simply rely on the blanket exemptions of FOIA if withholding access to information would be incompatible with their statutory functions or the principles of public law.
Evidence that internal investigations would be compromised must be shown on the facts (Wirral Borough Council v Information Commissioner)
Here, the FTT(IR) ruled that a borough council was not obliged to disclose under FOIA its correspondence with a law firm instructed by an investigator. The investigator had been engaged by the council to conduct an inquiry into whistleblowing claims made against it. The tribunal ruled that councils seeking to rely on the internal investigations exemption in section 31(1) must show why their particular internal investigations may be compromised by disclosure, and that the council in this case had failed to provide sufficient evidence to establish this.
However, disclosure was refused on the basis of the common interest privilege that applies in the context of FOIA to both litigation privilege and legal advice privilege, since on the issue of the confidentiality of the legal advice both the council and the investigator had a common interest.
CASE LAW: POLICY DECISIONS
Financial model protected by trade secret exemption but other housing development information to be disclosed (London Borough of Southwark v Information Commissioner and others)
In relation to a request to see the financial viability assessment provided as part of a planning application for a housing redevelopment, the FTT(IR) accepted that a financial model developed as an analytical tool should not be disclosed as it was a trade secret that required protection, but an agreement should be reached on disclosing the less commercially sensitive information in the documents. The application was made to establish why only 25% of the housing on the redevelopment would be “affordable” instead of the 35% originally proposed.
The tribunal’s ruling that the truly commercially sensitive information in the developer’s application should remain private will be a relief to local authorities that are seeking to regenerate their areas through development projects with private developers.
Applications for disclosure of government policy documents (Decision notice FS50492483)
The ICO required the DfE to disclose the reasons for its decision to refuse funding for Sandwell Council’s Building Schools for the Future programme, deciding that the section 35 “government policy” exemption was engaged but the public interest in disclosure outweighed the public interest in maintaining the exemption. The ICO ruled that the section 42 legal professional privilege exemption applied to some of the information, but found that the section 36 exemption was not even engaged on the facts, despite concerns over a possible chilling effect.
The decision shows that the ICO will not shy away from ordering the disclosure of potentially controversial or political documents.
CASE LAW: PERSONAL DATA
Personal data exemption protects identities of RIPA officials (Callus v Home Office)
This quarter, the FTT(IR) ruled that the Home Office correctly applied the FOIA section 40(2) personal data exemption in order to refuse a request for details of individual police officers who advised on applications for communications data under the Regulation of Investigatory Powers Act 2000 (RIPA). Although the FTT(IR) acknowledged that individual accountability at all levels was an essential protection in light of the intrusive nature of RIPA procedures, it stated that appellant had not made out a case that the disclosure of individual names would contribute to this process.
The case is another example of tribunals’ reluctance to disclose individuals’ personal data under FOIA (especially those of relatively junior officials).
Local councillors’ pension scheme details need not be disclosed (Crompton v Information Commissioner)
In this case, the FTT(IR) upheld a borough council’s refusal to disclose information about the participation of local councillors in the local government pension scheme and the employer contributions made in respect of them. It ruled that in order to hold councillors to account for use of public money, it was sufficient for the council to disclose the total sum contributed by the council, without giving the names of the councillors concerned.
CPS historic prosecution decision information must be disclosed, with personal data redactions (Corke v Information Commissioner)
The FTT(IR) has also ruled that the Crown Prosecution Service must publish information relating to its decisions not to prosecute a deceased former MP for offences against children dating from the 1970s. Although the tribunal acknowledged the need to maintain a “safe space” for deliberations of the CPS and the police, and the personal data of the children involved, it was swayed by the fact that the information related to events many years ago and were in themselves “significant historical documents”. It therefore ruled that the public interest under section 30 of FOIA lay in favour of disclosure. However, the FTT(IR) took steps to protect the personal data of living individuals by ordering appropriate redactions to the disclosed information.