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 January to March 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.
BODIES SUBJECT TO FOIA AND EIR OBLIGATIONS
Water companies are public authorities under the EIR (Fish Legal v Information Commissioner and others)
The Upper Tribunal (UT) ruled in February 2015 that private water companies are public authorities for the purposes of the EIR, in a judgment that could have significant implications for other private organisations running public services. The UT based its decision on the tests set out by the CJEU in its reference on this case, namely whether the water companies have “special powers” over and above those in private law; or whether they were under the control of other public authorities.
The UT held that the water companies’ powers to, for example, impose hosepipe bans, meant that they did have special powers and were therefore public authorities. However, it stated that the water companies were not under the control of public authorities, and that it would be difficult for to prove that any commercial entity was under such control.
The decision will mean extra legal burdens on private water companies and is very likely to result in claims that other private providers of services such as utilities or railways are also public authorities for the purposes of the EIR. Other cases that were stayed pending this decision (such as Bruton v Information Commissioner and another (EA/2010/0182): see Legal update, Duchy of Cornwall is a public authority under the EIR 2004 (FTT(IR)) are now due to go on to be decided applying the UT’s Fish Legal principles.
Network Rail to be subject to FOIA
Simon Hughes MP announced this quarter that Network Rail will be subject to FOIA by the end of March 2015, by secondary legislation that will allow requests to be made for information held that dates back to the start of Network Rail’s operation on 28 October 2002.
It remains to be seen if and when the government will carry out its proposed review into extending FOIA to cover private companies with “effective monopolies” over public services (see Legal update, FOIA code of practice to be updated and more bodies may be subject to FOIA).
Business’ energy certificate information to be published following EIR request
In January 2015, the DCLG announced that it would be publishing 723,000 records from non-domestic Display Energy Certificates and Energy Performance Certificates (EPCs), in response to an EIR request. At the same time, it gave holders of non-domestic EPCs the chance to opt out of having their information published, which is permitted under regulation 30 of the Energy Performance of Buildings (England and Wales) Regulations 2012.
The announcement is another illustration of how private companies can be affected by FOIA and EIR disclosures.
Local Government Transparency Code 2015
This quarter, the Local Government Transparency Code was updated to add a requirement for relevant local housing authorities to publish annually a dataset containing details of their social housing stock. The first set of housing stock data must be published by 1 September 2015.
Accompanying secondary legislation and FAQs were also published, bringing the new version of the code, plus a version of the code for smaller authorities, into force from 1 April 2015.
Local audit and accountability
The DCLG has published a guide for officials of smaller authorities in England, explaining the key requirements of the new local audit and accountability regime for smaller authorities from April 2015 (following the closure of the Audit Commission) and from April 2017 (after local auditor appointment is introduced).
INFORMATION COMMISSIONER’S OFFICE
Information Commissioner terms of appointment
The Protection of Freedoms Act 2012 (Commencement No 11) Order 2015 has brought section 105 of the Protection of Freedoms Act 2012 into force. Section 105 increases the maximum term of appointment for an Information Commissioner from five years to seven years, amends the procedure for removing an Information Commissioner from office and prohibits the re-appointment of an Information Commissioner for a further term of office.
ICO’s corporate plan
This quarter, the ICO published a consultation on its corporate plan for 2015-18. The plan sets out the ICO’s proposed strategic outcomes and objectives, taking into account emerging priorities. The plan is subject to revision according to the outcome of the UK 2015 general election, the findings of the recent Triennial Review of the ICO and the new EU data protection regulation.
Section 45 code update
Having previously stated that code of practice issued under section 45 of FOIA would be updated before the 2015 general election (see Legal update, FOIA code of practice to be updated and more bodies may be subject to FOIA), the government confirmed in February that this is no longer the case. Any update to the code will now take place after May 2015.
Late reliance on non-Part II FOIA exemptions permitted (McInerney v Information Commissioner and another)
This quarter, there has been a UT ruling that public authorities are permitted to rely on provisions of FOIA that are not set out in its list of Part II exemptions before the First-tier Tribunal (Information Rights) (FTT(IR)), even if they had not previously relied on these provisions when refusing the application in question. This means that authorities are allowed to rely late on sections that are not technically exemptions, such as the section 12 costs limit or the section 14 vexatiousness provisions.
The ruling will provide welcome clarification for public authorities and will relieve the pressure on them to raise all of their possible non-Part II objections when first refusing an information request.
Redacted development information ordered to be disclosed (Royal Borough of Greenwich v Information Commissioner)
The FTT(IR) ordered the London Borough of Greenwich to disclose all of the information that it had previously redacted in its response to an information request about the development of the Greenwich Peninsula. The request was for disclosure of an economic viability report, which had been undertaken to inform a variation to the relevant section 106 agreement to reduce the number of affordable homes originally agreed and to move some to less desirable parts of the site.
The FTT(IR) rejected an argument for redaction of some parts of the report based on their commercial sensitivity. It held that the public interest in disclosing the information outweighed that in maintaining the exception, because the information related to an important local issue and the developer was seeking to be relieved of a substantial planning obligation.
The decision goes further than previous decisions (which have allowed some information, including a developer’s financial model, to remain confidential).
UT guidance on “no steps” orders (Home Office v Information Commissioner and Cobain)
The UT ruled in a fairly exceptional case that the FTT(IR) should have given a “no steps” direction under section 50(4) of FOIA, where non-exempt information was technically disclosable, but its publication would have necessarily meant the disclosure of other, absolutely exempt, information. The UT’s guidance on the use of these powers is valuable, but it acknowledged that such orders would rarely be appropriate.
Medical records of deceased person ordered to be disclosed (Armstrong v Information Commissioner and Nottinghamshire Healthcare NHS Trust)
The FTT(IR) ordered the NHS Trust in this case to disclose the medical records of a person who had died while being detained under the Mental Health Act 1983 (MHA). The public interest in knowing how a person died while detained under the MHA was increased by the acknowledgment in the Access to Health Records Act 1990 of the importance of medical records being available to a patient or his or her personal representatives. There was also a public interest in the conduct of enquiries relating to the individual’s death, following concerns raised by the applicant about the inquest.
The fact that it had been over 25 years since the individual’s death, and that all of the deceased’s children had consented to the disclosure, lessened concerns about breaching the confidentiality of patient records.
Ruling on scope of Tate Gallery’s disclosure obligations (Montague v Information Commissioner)
In three related cases, the FTT(IR) ordered the Tate Gallery to disclose financial information about its sponsorship from BP between 1990 to 2006. It rejected the Gallery’s arguments that releasing this information would have an adverse impact on negotiations with possible other sponsors. However, the commercial interests exemption in section 43(2) of FOIA was held to apply to more recent sponsorship information. The Gallery was also obliged to disclose some of the minutes of the meetings of its ethics committee, although some information was allowed to be redacted. The public interests in transparency and accountability for the Gallery’s decision-making in some cases outweighed the interests in keeping the work of the ethics committee private.
The case outlines the conflict that can occur when commercial bodies also carry out public functions and so are subject to FOIA.