This is the fifth 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 January to March 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.
MINISTERIAL VETO
Prince Charles’ letters: ministerial veto was unlawful (Evans v Information Commissioner and others [2014] EWCA Civ 253 and R (Evans) v HM Attorney General and another [2014] EWCA Civ 254)
One noteworthy case this quarter was the Court of Appeal’s judicial review of the Attorney General’s decision to issue a certificate vetoing the publication of correspondence between the Prince of Wales and several government departments dating from 2004 and 2005. On 12 March 2014, the court decided that the Attorney General’s use of the veto in this situation was unlawful and the certificate should be quashed. The judgment also stated that section 53(2) of FOIA (which allows for the veto) is incompatible with EU law insofar as it relates to environmental information.
The court took a firm stance on the use of the veto: it stated that a minister should not be able to override a reasonable decision by a court or tribunal simply because he disagrees with it. The case received significant publicity and the Attorney General has been given permission to appeal to the Supreme Court. Practical Law will be following developments as and when they happen.
HS2 EIR disclosure vetoed
On 30 January 2014, the Secretary of State for Transport vetoed disclosure by the Cabinet Office of the Project Assessment Review (PAR) for the High Speed Two (HS2) rail link. The veto is more usually exercised following a tribunal decision, but in this case, it followed an ICO ruling that the PAR should be published. The Secretary of State exercised the veto because he decided that on balance, the public interest favoured non-disclosure.
It remains to be seen what impact the Court of Appeal decision overturning the Prince Charles veto will have on this and future uses of the ministerial veto.
ICO GUIDANCE
This quarter, the Information Commissioner’s Office (ICO) published updated guidance on how to apply the public audit exemption in section 33 of FOIA and definition documents for Community Health Councils in Wales and for the Patient and Client Council in Northern Ireland.
The ICO has also published guidance on:
- How to make information available in response to a request under FOIA and the EIR. (For the first time, there is separate guidance on the FOIA and EIR provisions.)
- Interpreting and clarifying unclear requests under the EIR and FOIA.
- Recognising a request made under FOIA (clarifying section 8 of FOIA).
CASE LAW: PERSONAL DATA
Duty to confirm or deny not automatically unfair if no evidence of wrongdoing (Foster v Information Commissioner (EA/2013/0176))
There was some clarification on personal data and the duty to confirm or deny this quarter. On 13 January 2014, the First-tier Tribunal (Information Rights) (FTT(IR)) obliged the Nursing and Midwifery Council to confirm or deny whether it held the names of witnesses interviewed at a hearing in the investigation into a complaint about a nurse, ruling that doing so would not cause an unwarranted breach of privacy.
In its judgment, the FTT(IR) stated that it would not automatically be unfair to disclose that a professional misconduct complaint had been made against someone, even if there were subsequently no finding of wrongdoing against them. Instead, all of the relevant circumstances should be taken into account.
Personal data redaction acceptable for non-senior civil servants’ job details (Brain v Information Commissioner and another (EA/2013/0127))
This quarter, the FTT(IR) also clarified the extent to which it considers it acceptable for individuals’ personal data to be redacted from a request about job roles. On 24 February, following a request for information about the re-grading of the roles of salaried employment judges, it ruled that it the personal data exemption in section 40(2) would cover the personal data of most of those people who were not of interest for the request. However, the names of two senior civil servants were not permitted to be redacted, due to their public-facing roles.
Visa refusal details not disclosable: anonymisation would not protect privacy (Goldsmith International Business School v Information Commissioner (EA/2013/0190))
On 27 January 2014, the FTT(IR) ruled that the Home Office was not required to disclose details of two immigration decisions under FOIA, following a request from a college that also sponsored migrants. The college had argued that the disclosure was necessary for compliance with its legal obligations and the administration of justice, but the FTT(IR) rejected this, saying that there had already been documentary disclosure in the course of parallel judicial review proceedings, so that disclosure of the requested information was not necessary for those purposes.
The FTT(IR) noted that anonymisation of the data would not be sufficient to protect the privacy of the two individuals, as they would be easily identifiable. This case was arguably an example of an exception to the general rule that FOIA requests are decided regardless of the identity and circumstances of the requester.
CASE LAW: HEALTH AND SAFETY EXEMPTION
No need for motive blindness when mental health at risk (Hepple v Information Commissioner and another (EA/2013/0168))
On 26 February 2014, the FTT(IR) departed from the usual rule of being blind to the motives of the requester when it decided that a report of an investigation into complaints about Pupil Referral Unit staff should not be published under FOIA. The FTT(IR) took into account the fact that the requester had sent text messages to an individual involved in the council’s handling of the report and the appeal, which resulted in him being issued with a formal harassment notice.
The FTT(IR) said that “assessing an information request on this ‘motive blind’ basis ought not to prevent us from considering the potential risk to safety posed by the requester him/herself.” It therefore ruled that the exemption in section 38 (publication would endanger the health or safety of an individual) was engaged and should be upheld. There was a real risk that disclosure could have exacerbated an individual’s pre-existing condition, to the extent that specific psychological harm was likely to follow.
CASE LAW: EIR INTERNAL COMMUNICATIONS EXCEPTION
Successful reliance on “internal communications” exception to prevent disclosure of housing development papers (Eastleigh Borough Council v Information Commissioner (EA/2013/0069))
This quarter, the FTT(IR) allowed Eastleigh Borough Council to rely on the “internal communications” exception in regulation 12(4)(e) of the EIR, following a request for background reports, minutes and advice relating to the council’s consideration of a new housing development.
Although it acknowledged that the council’s decision should be open to public scrutiny, the FTT(IR) ruled on 13 January 2014 that the public had already seen enough information about the decision to engage in debate. It was also concerned about the potential “chilling effect” on internal council communications in future.
CASE LAW: ALTERNATIVE INTERPRETATIONS OF REQUESTS
FCA should act on requester’s alternative interpretation of request (Decision notice FS50496791)
On 16 January 2014, the ICO published a decision notice that ruled that the Financial Conduct Authority had failed to act on a requester’s intended reading of an information request about the FCA’s investigation into Keydata Investment Services Ltd. Instead, the FCA had proceeded on the basis of its own interpretation of that request. The ICO therefore required the FCA to process the request using the requester’s intended interpretation.
The decision illustrates the need for public authorities to clarify ambiguous requests before deciding on a response.
CASE LAW: FORMAT OF RESPONSE
Copies, not transcripts, must be disclosed (Independent Parliamentary Standards Authority v Information Commissioner and another [2014] UKUT 0033 (AAC))
In this case, the Upper Tribunal decided that it was not sufficient for the Independent Parliamentary Standards Authority (IPSA) to disclose transcripts of the information in the requested receipts and invoices of certain MPs. Instead, copies of the originals must be published, for IPSA to discharge its disclosure obligations under FOIA.
The tribunal acknowledged that public authorities have some discretion as to the format in which to provide the requested information under section 11 of FOIA; in this case, the transcripts were held to miss certain non-verbal information that would be visible from the receipts and invoices themselves (such as symbols, logos, letterheads and manuscript comments).
CASE LAW: DESIGNATED BODIES UNDER FOIA
FTT(IR) sets out test for bodies designated as subject to FOIA only in relation to certain functions (Universities and Colleges Admissions Service v Information Commissioner and another (EA/2013/0124))
On 15 January 2014, the FTT(IR)) set out the test for whether particular information held by a body that is designated as being subject to FOIA in relation to only certain of its functions, by an order under section 5 of FOIA. A key limb of its test was whether the designated body held the information to a significant degree in relation to the exercise of its designated function (even if it also held the information in relation to other (possibly more important) functions).
The judgment is likely to be of interest to other bodies that are designated as public authorities under section 5 of FOIA, or bodies that fall under FOIA only in relation to some of their functions, as it aims to clarify the test for whether information held by those bodies falls within the scope of FOIA.