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 2015.
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.
OUTSOURCING AND FREEDOM OF INFORMATION
Information Commissioner’s Office report and guidance on outsourcing
This quarter, the ICO published guidance on outsourcing and freedom of information. The guidance covers:
- When information will be considered to be held by a public authority.
- Exemptions from FOIA in relation to outsourcing, including the trade secrets, commercial interests and personal data exemptions.
- The ICO’s recommended “transparency by design” approach.
This followed the publication of the ICO’s report on transparency in government outsourcing. The report identified the following four steps to achieving greater transparency in outsourcing:
- Better contracts and clarity over what information is held on behalf of the public body.
- Transparency by design: upfront discussions between contracting parties about information that is likely to be sensitive or may be subject to an exemption, with the default position being that performance information is routinely published.
- Amending the scope of FOIA so that it includes all information held by a contractor in connection with their delivery of an outsourced service.
- Publication by the government of standard contract terms requiring the proactive publication of certain information relating to outsourcing.
The ICO’s increased focus on the transparency of outsourced contracts reflects the potential transparency issues that may be caused by the increase in public sector activities being undertaken by contractors.
Extension of Freedom of Information (Scotland) Act 2002 to more contractors
The Scottish Government published a consultation on its proposals to proposals to extend coverage of the Freedom of Information (Scotland) Act 2002 to:
- Providers of secure accommodation for children.
- Grant-aided schools and independent special schools.
- Contractors who run privately-managed prisons.
Under the proposals, an Order would be laid in the Scottish Parliament in the autumn of 2015, with the bodies specified in the Order due to become subject to the Act in the spring of 2016. The possible extension reflects the increasing involvement of private organisations in public functions.
TRANSPARENCY
Sanctions imposed over failure to comply with Local Government Transparency Code
The DCLG published a letter from the Minister for Local Government to the Leader of Rother District Council, stating that the council’s new burdens funding for 2014-15 will be withheld due to its failures to comply with the Local Government Transparency Code. The Minister indicated he would reconsider whether to make the payment if the council were able to show that it had complied with the Code.
The letter confirms that the government intends to enforce compliance with the Code, which was introduced in 2014 as part of the government’s attempts to promote transparency.
CASE LAW
Advocate General opinion on charging for property searches under the EIR (Opinion of Advocate General Sharpston)
AG Sharpston gave her opinion on a referral to the ECJ made in the case of East Sussex County Council v Information Commissioner and Property Search Company and the Local Government Association. The referral concerned two questions on the meaning of Directive 2003/4/EC on access to environmental information; in particular, the ability to charge for requested environmental information and the meaning of a “reasonable amount”.
The AG held that:
- A “reasonable amount” under Article 5(2) of the Directive must be based on the costs actually incurred in relation to the supplying of the requested environmental information. This can include the costs of staff time spent on searching for and producing the information in the form requested but cannot include any overheads such as heating, lighting or internal services, as these will not have been incurred solely in connection with supplying information in response to a request.
- The Directive does not preclude a rule of national law under which a public authority must satisfy itself that a charge is a “reasonable amount”, to be judged objectively.
The opinion is likely to be of significant interest to local authorities who are currently dealing with such requests; however, it remains to be seen whether the ECJ chooses to confirm the AG’s opinion.
Government veto overruled by Supreme Court: Prince Charles letters published (R (Evans) and another v Attorney General)
One of the most high-profile freedom of information cases this quarter was the decision by the Supreme Court to overrule the Attorney General’s veto of the publication of letters between HRH the Prince of Wales and several government departments.
The Supreme Court held that:
- The government’s certificate vetoing the Upper Tribunal’s order to publish the letters was invalid.
- Regulation 18(6) of the EIR (allowing the government to veto requests for environmental information) was incompatible with Council Directive 2003/4/EC.
- The constitutional principles of the separation of powers and the rule of law meant that a statute must be “crystal clear” in order to grant a member of the executive the power to override a decision of the judiciary simply because, considering the same facts and arguments, he takes a different view from it. The wording of section 53(2) of FOIA was not clear enough to grant such a power.
The letters were subsequently published (see Legal update, FOIA: letters between Prince Charles and government departments published).
While the case will not have long-term implications for the transparency of the Prince of Wales’ correspondence (as the relevant FOIA exemption has since been amended to remove its public interest test), it will have a significant impact in other ways. Following the decision, in order to veto a tribunal ruling under FOIA, the government must now demonstrate that there has been a material change of circumstances since the tribunal decision, or that the decision of the tribunal was demonstrably flawed in fact or in law. There will be a similar, but possibly less stringent, test for the veto of an ICO decision and the expectation will be that an ICO decision should normally be appealed, rather than vetoed. The veto will no longer be available in respect of EIR decisions at all.
Another possible result of the case is that the government may choose to amend FOIA, in order to make its veto powers under FOIA “crystal clear”. The government has indicated that it is considering this course of action.
Court of Appeal guidance on meaning of “vexatious” and “manifestly unreasonable” (Dransfield v Information Commissioner and another; Craven v Information Commissioner and another)
The Court of Appeal has dismissed two appeals against decisions that information requests could be refused on the grounds that they were vexatious (under section 14 of FOIA) or manifestly unreasonable (under regulation 12(4)(b) of the EIR). The court confirmed that:
- The terms “vexatious” and “manifestly unreasonable” have essentially the same meaning. The court upheld the UT’s guidance on their meanings (see Legal update, Binding guidance on vexatious and manifestly unreasonable requests (Upper Tribunal)).
- Past requests could be relevant to a decision that a request was vexatious even if they had no underlying grievance in common with the disputed request.
- A public authority may take into account the costs of complying with a request in assessing whether the request is vexatious or manifestly unreasonable. However, there is still a question as to whether there is a higher hurdle for rejecting a request on cost grounds under the EIR than under the equivalent provisions of FOIA.
Freedom of information practitioners will be pleased to note that they can continue to rely on the UT’s previous guidance on “vexatiousness” and “manifest unreasonableness”, which are not defined in the legislation. However, they should note the court’s warning that the need to protect scarce public resources will not lower the high standards required to be shown in order for either vexatiousness or manifest unreasonableness to apply.
Original MPs’ expenses receipts must be disclosed (Independent Parliamentary Standards Authority v Information Commissioner and another)
The Court of Appeal dismissed an appeal against the UT’s ruling that IPSA must disclose copies of original receipts and invoices under FOIA. The court held that the right to information should be construed broadly and “information” can include visual elements. In this case, a transcript (rather than a copy) of the requested information would not have provided the requester with signatures and other markings on the papers. Such markings were “informative”, in part because they were “capable of informing an inquiry into the genuineness of a document”.
The decision is an acknowledgement that, although FOIA does not give requesters the right to documents (only to information), in some cases the only way of disclosing information will be to provide a copy of the document in question.
Reports by consultant did not fall within EIR “internal communications” exemption (East Devon District Council v Information Commissioner)
The First-tier Tribunal (Information Rights) ruled that reports produced by a consultant expert for East Devon District Council were not covered by the “internal communications” exception under regulation 12(4)(e) of the EIR. The FTT(IR) held that the consultant was not sufficiently “embedded” within the council for his reports to constitute internal communications, since he was under an obligation to report back to his external employer and his reports were issued in his employer’s name. The FTT(IR) also noted that the Aarhus convention requires that exceptions to the duty to disclose environmental information are interpreted restrictively.
The decision provides some clarity over what communications will be held to be internal, which can be difficult to make out where a variety of types of employees and contractors work together within a public authority.
School must disclose results of parent, pupil and staff survey under FOIA (King Edward VI Handsworth School v Information Commissioner)
The FTT(IR) has ruled that an independent school must publish collated results of pupil, parent and staff surveys, conducted to help the school’s senior leadership team plan. The FTT(IR) held that the potential for misinterpretation of the results was not a sufficient ground for refusing to publish, especially since the information could be accompanied by an explanatory note. The public interest was in favour of transparency relating to the performance of a publicly-funded institution, and respondents had been given no promise of anonymity.
The decision highlights that public authorities should be wary of the information they create about their own performance: the potential for information to be misinterpreted will not necessarily be a reason to withhold its publication.