Our quarterly freedom of information law 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 2017. In this post, we look at:
- Decisions of the First-tier Tribunal (Information Rights).
- ICO Decision Notices.
- Featured blogs.
- Recent Ask queries.
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.
DECISIONS OF THE FIRST-TIER TRIBUNAL (INFORMATION RIGHTS)
First-tier Tribunal dismisses appeal for disclosure of legal opinion obtained by Cumbria County Council (Andrew Holmes v IC and another)
On 12 May 2017, the First-tier Tribunal General Regulatory Chamber Information Rights (FTT(IR)) has upheld the ICO’s decision that an information request for a barrister’s opinion obtained by a council attracted legal professional privilege and was exempt under section 12(5)(b) of the Environmental Information Regulations 2004 (SI 2004/3391) (EIR). The section provides that a public authority may refuse to disclose information to the extent that disclosure would adversely affect “the course of justice”.
Information Tribunal orders disclosure of redacted waste management services variation agreement (Worcestershire County Council v Information Commissioner and another)
On 10 April 2017, the FTT(IR) handed down its decision in the case of Worcestershire County Council v Information Commissioner and another.
On 21 May 2014, Worcestershire County Council (council) and Mercia Waste Management Ltd (Mercia) entered into a variation agreement in order to record a number of changes required to an existing waste management services contract.
The council appealed to the FTT(IR) against a decision of the Information Commissioner of 18 August 2015 concerning financial, commercial and technical information contained in the main body of, and annexes attached to the variation agreement. The decision notice required that the council was not entitled to redact information in the variation agreement before its disclosure, beyond the limited amount of financial figures and formulae identified in the decision notice.
The appeal was allowed in part and the council was required to disclose a copy of the variation agreement between the Council and Mercia redacted to remove:
- The financial information identified in the original decision notice.
- The information identified in the confidential schedule 1 attached to the decision of the tribunal.
This case is of interest because it deals with the interface between the EIR and FOIA, the application of the exemption for commercial confidentiality and how that relates to protected intellectual property rights and the public interest test. The detailed analysis of the relevant provisions of the EIR in relation to a major public service commercial agreement will also be helpful to practitioners.
Council required to disclose call handlers’ statements during Lifeline advisory service telephone calls (FTT(IR)) (Carole Evans v Information Commissioner and another)
On 14 March 2017, the FTT(IR) held that Torfaen County Borough Council (council) could not rely on the exemption in section 40 of the Freedom of Information Act 2000 (personal information) in respect of call handlers’ statements during Lifeline advisory service calls.
The requester had asked the council for recordings of telephone calls from her deceased mother’s (M) telephone line to the council’s Lifeline advisory and emergency telephone service. The council refused the request, citing section 40 and on the basis that the recordings contained the personal information (in accordance with the Data Protection Act 1998 (DPA 1998)) of its call handlers and the requester’s stepfather and that disclosure would breach the first data protection principle. The Information Commissioner upheld the council’s decision.
On appeal, the FTT(IR) accepted that the requester pursued a legitimate interest in seeking to understand Lifeline’s operations and was fit to safeguard the interests of vulnerable people. It held that the call handlers’ statements did not constitute personal data and should be disclosed, provided their names were redacted from a transcript, given that the information related to their employee duties and was not personal to their employment (which salary information or an appraisal might comprise). The statements by A during the calls did constitute his personal data, however, and should not be disclosed as they were not necessary to achieve the requester’s aims, pursuant to Schedule 2 to the DPA 1998 (sixth condition).
The case provides an interesting examination of the scope of the section 40 exemption in the context of employee information and will be of interest to public authorities that operate advisory telephone lines or otherwise hold information which details aspects of deceased individuals’ medical or social care.
Section 12 costs limit does not act as a “taxi meter” or require a public authority to conduct work up to the appropriate costs limit once engaged (FTT(IR)) (Marco Renna v Information Commissioner)
On 8 March 2017, the FTT(IR) held that section 12 of the Freedom of Information Act 2000 did not require a public authority to attempt to comply with a request up to the appropriate limit established by the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (SI 2004/3244), in order to extract information into aggregate form.
ICO DECISION NOTICES
Name of company prosecuted for pollution incident constitutes environmental information (ICO Decision notice FER0660237)
On 9 May 2017, The Information Commissioner (IC) issued a decision notice finding that the name of a company alleged to have been responsible for a water pollution incident was environmental information under the Environmental Information Regulations 2004 (SI/2004/3391).
The case presents a reminder that information about an organisation being held responsible for an environmental incident is itself information about an environmental incident and therefore subject to EIR.
Council’s licence conditions for re-use of information held to be unnecessarily restrictive and in breach of Re-use of Public Sector Information Regulations 2015 (ICO Decision notice FS50619465)
On 4 April 2017, the IC held that conditions for re-use of information imposed by Cambridgeshire County Council breached regulation 12 of the Re-use of Public Sector Information Regulations 2015 (SI 2015/1415) (RPSI). The complainant requested permission to re-use geographical mapping data concerning local public rights of way provided by the council in accordance with the Open Government Licence (OGL). In imposing a one year term on the licence and prohibiting end-users’ manipulation of the data, the council’s terms of re-use were more stringent than the OGL’s conditions.
The IC held that they constituted an unnecessary restriction in breach of regulation 12 of RPSI and ordered the council to grant re-use of the requested information under the OGL. The council was also held to have breached regulation 17 in not arranging for an internal review of the complainant’s complaint. The decision notice is the first issued by the IC that relates to a breach of the RPSI, and serves as a reminder to councils and other public sector bodies of the duties imposed by the RPSI and, particularly, the mechanics of re-use under the OGL.
We have published the following blog that may be of interest to information law practitioners:
RECENT ASK QUERIES
We have published the following Ask queries:
- Can the disclosure of consultants’ names and breakdown of fees paid to them (distinct from contract details or pricing models) be exempt from disclosure under the Freedom of Information Act 2000?
- Is “public function” defined in the GDPR and if not, have you any guidance?
- Is the owner of a care home, which is governed by the Care Quality Commission, able to release the names of residents and the fees each pays to a lender when re-mortgaging with a new lender?
- Is there any exception which may apply under FOIA or the EIR to the publication of responses to consultations on changes to legislation before the draft legislation is produced?
- Must a local authority disclose the sums paid to an individual consultant, acting as a sole trader, under the Freedom of Information Act 2000 or publish this information under the local government transparency regime?