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 2017. In this post, we look at:
- ICO decision notices.
- Decisions of the First-tier Tribunal (Information Rights).
- The Information Commissioner’s comments on digital communications and social media and the extent of FOIA.
- 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.
ICO DECISION NOTICES
Information relating to NHS primary medical care services tender engaged exercise of public authority functions exemption in FOIA (ICO decision notice FS50643575)
On 5 January 2017, the Information Commissioner’s Office (ICO) published a decision notice finding that NHS Improvement could rely on section 31(1)(g) (prejudice to the exercise of a public authority’s functions) of the Freedom of Information Act 2000 (FOIA) in order to withhold requested information arising from an inquiry into a tender for primary medical care services.
The decision is an important example of the relatively wide ambit of the section 31 exemption and its application to public authorities’ regulatory functions.
NHS England not required to disclose detailed breakdown of Individual or Exceptional Funding Requests relating to stem cell transplants (ICO decision notice FS50645552)
On 20 December 2016, the ICO issued a decision notice finding that NHS England was correct in its application of the personal information exemption in section 40(2) of FOIA following its refusal to release detailed information relating to Individual or Exceptional Funding Requests for stem cell transplantation.
The decision is of interest as the ICO restated that the default position of the ICO where section 40(2) has been cited is in favour of protecting the privacy of the individual. In addition, the decision affirms the position of the ICO regarding requested information that relates to a small number of individuals and the fact that a small sample size could lead to identification.
DECISIONS OF THE FIRST-TIER TRIBUNAL (INFORMATION RIGHTS)
Section 37(1)(b) exemption held not to apply to information relating to formulation of military honour despite ICO guidance (Anthony Morland v Information Commissioner and another)
On 16 January 2017, the First-tier Tribunal (Information Rights) (FTT)(IR)) held that information relating to a proposed new military honour could not be withheld by the Cabinet Office by way of the qualified exemptions in sections 35(1)(a) (formulation or development of government policy) and 37(1)(b) (conferring by the Crown of any honour or dignity) of FOIA.
Although the FTT(IR) considered that the ICO’s guidance on section 37 was “somewhat ambiguous”, it is unusual for guidance to be contradicted or doubted in freedom of information cases. The case acts as a reminder that whilst the ICO’s guidance may be illustrative, it does not hold interpretative value in respect of FOIA.
Internal communications exception protects DfT records with “blue sky thinking” on HS2 from disclosure (Thomas Crane v Information Commissioner and another)
On 16 January 2017, the FTT(IR) held that the Department for Transport could rely on the exceptions in regulations 12(4)(d) (unfinished material) and 12(4)(e) (internal communications) of the Environmental Information Regulations 2004 (SI 2004/3391) (EIR) in order to withhold information relating to the HS2 high speed rail network.
The FTT(IR)’s findings relating to written “blue sky thinking” will be of relief to public authorities subject to either the EIR or FOIA.
Council required to disclose draft investigation report arising from councillor’s alleged breach of code of conduct (Janet Dedman v Information Commissioner)
On 9 January 2017, the FTT(IR) held that North Norfolk District Council (NNDC) could not rely on the exemption in section 40 of FOIA (personal information) and was required to disclose a draft investigation report concerning a councillor’s alleged breach of the NNDC code of conduct. The FTT(IR) concluded that the public (including the requester) had a powerful and legitimate interest in disclosure of the requested information for the purposes of condition 6 of Schedule 2 to the Data Protection Act 1998 (DPA 1998), and that C could have no reasonable expectation that it would not be disclosed. If there was any prejudice to C, it was justified in this case given C’s public role.
The case presents an interesting reminder of the treatment of information concerning elected public officials in respect of section 40 and the DPA 1998, and, in particular, a detailed discussion of the circumstances in which a draft document may or may not be exempt from disclosure.
Certain information created by Ofsted inspection team not exempt from disclosure under section 31(1) of FOIA (Boam v Information Commissioner and the Office for Standards in Education, Children’s Services and Skills (Ofsted))
On 3 October 2016, the FTT(IR) held that certain information created by an Ofsted inspection team had to be disclosed to the appellant, subject to modification to protect third party personal data. The case confirms the test for determining whether data have been sufficiently anonymised so that they cease to be personal data is rigorous. What is apparent is that the chances of identification must be extremely remote.
INFORMATION COMMISSIONER’S COMMENTS ON DIGITAL COMMUNICATIONS AND SOCIAL MEDIA AND THE EXTENT OF FOIA
We have published a blog discussing a speech given on 25 January 2017 by the Information Commissioner (IC), Elizabeth Denham. The IC reaffirmed her interest in creating a positive, statutory “Duty to Document” on public authorities in response to the challenges presented by digital technology and social media. The IC stated her view that technology had already surpassed the law when FOIA was brought into full force in 2005, and that dangers of this to public decision making are that digital communications are deemed “impermanent and transitory” by public decision makers, and are not treated with the import of physical documents for the purposes of data retention.
RECENT ASK QUERIES
We have published the following Ask query:
- Is a public body required or should they in best practice contractually require a party to provide evidence in relation to the section 41, FOIA exemption so that the authority can take this into account in determining whether or not the exemption applies?