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 2016.
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.
INDEPENDENT COMMISSION ON FREEDOM OF INFORMATION
This quarter saw the publication of the long-awaited report of the Independent Commission on Freedom of Information and the government’s initial response to it. To the surprise of many, the Commission concluded that FOIA is generally working well and that no radical alterations are required to it. Mooted possibilities of changing the costs limit in order to limit the burden on public authorities were not taken up by the Commission, since it stated it saw that the benefits to the public of greater transparency outweighed these burdens.
The Commission did make recommendations for changes to both legislation and practice, including:
- Amending the exemptions in sections 35 and 36 of FOIA to clarify their scope and to underline the importance of collective Cabinet decision-making.
- Amending the veto power to put the government’s ability to veto when the accountable person takes a different view of the public interest in disclosure beyond doubt, and use of the veto should be restricted to decisions by the Information Commissioner until such amendments were made. A confirmatory veto, where the government agrees with a ruling that disclosure should be withheld, should also be permitted.
- Removing the right of appeal to the First-tier Tribunal (Information Rights). Appeals on a point of law should go directly to the Upper Tribunal, to remove the duplication of two fact-based reviews being undertaken.
The government responded by stating that it does not currently intend to respond to the report by amending the FOIA legislation. However, it is making other changes, including:
- A commitment to only use the veto in respect of decisions by the Information Commissioner, not the tribunals.
- Stating that it will review the operation of section 45 of FOIA to ensure the sufficiency of guidance and advice for public authorities, and update the section 45 code of practice in various ways, for example to include requirements for all public authorities with 100+ full time equivalent employees to publish FOI statistics, and to clarify the provisions on vexatious requests.
- Taking further steps to increase transparency about senior executives’ pay and benefits.
The government has confirmed its commitment to openness and transparency and said that it will carefully consider the commission‘s other recommendations. It will be interesting to see how the government takes these forward.
The House of Commons Library has published a briefing paper summarising the changes to FOI law.
ICO GUIDANCE
In January 2016, the Information Commissioner’s Office published new guidance on the exemptions for disclosure of information intended for future publication and research information under sections 22 and 22A of FOIA.
Section 22 exempts information that is intended to be published in the future, where it is reasonable not to disclose it until publication. The guidance explains the scope of the exemption and emphasises that for the exemption to apply, the public authority must have a “settled expectation” that the information will be published at some future date.
Section 22A was added to FOIA by the Intellectual Property Act 2014 and has been in force since 1 October 2014. It provides an exemption for research information held by a public authority. The guidance explains what is required for the exemption to apply, such as the facts that the information must relate to an ongoing research programme.
The guidance provides useful insight into the scope of these two exemptions.
DATA SHARING
In February 2016, the government published a consultation on data sharing in the public sector, focusing on data held by public sector organisations and how data is accessed and used, including how data sharing can be enabled.
The consultation focuses on three key areas:
- Improving public services by creating a single gateway to enable data to be shared between public agencies for the sole reason of improving the welfare of individuals and enabling agencies to access and share civil registration data.
- Addressing fraud and debt by making it possible for authorities to identify where individuals have debts with multiple agencies and allowing a single authority to manage those debts and also to share and manage data in order to prevent fraud.
- Allowing de-identified data and official statistics from the Office for National Statistics to be shared with, and used by, researchers in order to carry out research for the public benefit.
The consultation closes on 22 April 2016.
CASE LAW
University allowed to rely on costs limit to refuse to provide information that it was under separate legal obligation to hold (Cruelty Free International v Information Commissioner)
In this case, a university refused a request for the numbers of animals used in scientific experiments, on the grounds that the cost of compliance would exceed the appropriate limit under 12(1) of FOIA, since it would have to obtain the information from 60 licensees. The appellant argued that the university was under a statutory duty to hold such information centrally under the Animals (Scientific Procedures) Act 1986 (ASPA) and it should not benefit from its failure to fulfil this duty.
The FTT(IR) held that:
- The only relevant factor was what information was held at the time of the request, regardless of other legal record-keeping obligations. FOIA does not impose any requirements as to public authorities’ record-keeping practices.
- The FOIA costs limit may be relied upon both where records are simply poorly kept and also where there is a separate duty regarding those records.
- It was not persuaded that the university had not complied with its ASPA duties, since ASPA did not require licensing information to be held in one location.
Although requesters have previously unsuccessfully challenged authorities’ refusals to provide information due to disorganised record-keeping, this case was slightly different as there was a specific statutory record-keeping duty. However, the outcome was still the same: the FTT(IR) held that the costs limit could be relied upon despite a possible breach of statutory duty. The case illustrates tribunals’ reluctance to burden public authorities and should provide some comfort to authorities concerned about their record-keeping practices.
Academy sponsorship details must be disclosed under FOIA (Downs v Information Commissioner)
In this case, a request was made to the Department for Education for information about how much money was paid out when sponsorship of a failing academy was transferred to new sponsors. The Information Commissioner had ruled that section 36(2)(c) of FOIA prevented disclosure.
The FTT(IR) rejected the Commissioner’s reliance on both section 36(2)(c) (prejudice to effective conduct of public affairs) and on section 43(2) (prejudice to commercial interests), ruling that neither exemption was engaged. Even if they were engaged, the FTT(IR) held that the public interest in respect of both exemptions was in favour of disclosure, due to the public interest in the spending of public money on a controversial government policy.
The decision illustrates that tribunals can be keen to allow transparency regarding controversial government policies, in order to allow informed public debate. It also shows how difficult it is for a public authority to prove that disclosure of information relating to a new policy may have a particular effect, since it would not have sufficient evidence of that new policy to prove that its assertions were true. The case is also a reminder that FOIA applies to the academy school system and it can be used to obtain financial information on academy school funding.
Trading standards investigation by primary authority qualifies for section 44 FOIA exemption (Carins v Information Commissioner)
In March 2016, the FTT(IR) held that information held by Westminster council, in its role as trading standards “primary authority” for Marks & Spencer, was exempt under the “disclosure prohibited under another enactment” exemption in section 44 of FOIA. It held that the requested information (about Marks & Spencer’s tilling systems) was obtained by Westminster while investigating whether enforcement action was required under the Consumer Protection from Unfair Trading Regulations 2008. Westminster’s primary authority status and the formality or otherwise of its investigations did not make the information disclosable, as the only reason that Westminster was able to investigate was as a result of the UTR, which automatically engaged the Enterprise Act protections from disclosure.
The ruling shows the FTT(IR) taking a broad and practical view of the statutory regime preventing disclosure for the purposes of section 44 and it may provide some comfort to private companies that their commercial information is unlikely to be disclosed by virtue of their dealings with trading standards authorities.
Subsidence claim postcode information must be disclosed due to public interest (Bartram v Information Commissioner)
In February 2016, the FTT(IR) modified a decision notice from the Information Commissioner that ordered the Coal Authority to disclose information on all properties making subsidence claims since 1 June 2013. The Information Commissioner had ordered the property postcodes and addresses to be redacted from the disclosed information. The tribunal modified this to require only the addresses to be redacted, since it was in the public interest for the postcode information to be disclosed. The tribunal held that:
- Property owners would have a reasonable expectation that some of their personal data in relation to subsidence claims would be withheld from the Coal Authority’s publicly searchable records. However, owners’ reasonable expectations would not extend to absolute protection for postcode information.
- Property postcodes were capable of constituting personal data, so, taking into account these reasonable expectations, the public interest did not override data subjects’ rights with regard to their property address personal data, but it did override their rights with regard to their postcodes.
- The public interest weighed in favour of disclosure because postcode-level disclosure of information about subsidence claims would provide the public with a valuable impression of the degree of risk in a particular area and the likelihood of future subsidence damage there.
The case poses questions about what other conveyancing search information might be held to be publicly disclosable free of charge under freedom of information legislation. The finding that postcodes were potentially capable of being personal data in this context may also be of interest to data protection practitioners and organisations processing such data.