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 July to September 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.
ICO COMPLETES ITS ACTION PLAN TO UPDATE MODEL PUBLICATION SCHEME DOCUMENTS
On 17 September 2014, the ICO announced on its blog that its action plan to update its model publication scheme, associated guidance documents and all of its definition documents and template guides has been completed. The action plan to update the documents was announced in 2012 (see Legal update, ICO publishes action plan for new model publication scheme), and the changes that have been made to them aim to improve public authorities’ transparency and to deal with developments such as the disclosure of datasets.
This statement followed the ICO’s announcement earlier this quarter that it had published and updated several definition documents and template guides to information as part of its action plan, including those for health regulators and health bodies in England, Wales and Northern Ireland, non-departmental public bodies, parish councils and Northern Ireland district councils.
UPDATED ICO GUIDANCE ON CHARGING FOR ENVIRONMENTAL INFORMATION
The ICO has published two pieces of updated guidance on charging for the provision of environmental information under the EIR. The guidance sets out what the ICO considers to be reasonable charges for property searches and states that the EIR charging provisions will not apply when a local authority completes the CON 29 homebuyer search form on the applicant’s behalf and guarantees the accuracy of the information on that form.
This guidance provides welcome clarity to this area while the ECJ’s ruling on charging for property searches is awaited (to which the guidance is subject).
FOIA RESEARCH EXEMPTION TO COME INTO FORCE 1 OCTOBER 2014
The first new FOIA exemption for some time will come into force on 1 October 2014, as the Intellectual Property Act 2014 (Commencement No 3 and Transitional Provisions) Order 2014 brings into effect section 20 of the Intellectual Property Act 2014 from that date. Section 20 will add a new exemption to FOIA, section 22A.
The new exemption will be a qualified exemption that exempts information obtained in the course of, or derived from, a programme of research (if the programme is continuing with a view to publication and early disclosure would, or would be likely to, prejudice the programme, or the interests of a participant or public body). The duty to confirm or deny will also not arise if it would prejudice any of these matters.
The new exemption will principally be of interest to universities and other public authorities engaged in research.
DATA PROTECTION COMPLIANCE
This quarter, the ICO published its findings that there was room for improvement in every one of its 16 audits of how local authorities handled personal data. The MoJ also announced that, by the end of 2014, the ICO will have the power to compulsorily audit public authority NHS bodies for their data protection compliance.
The ICO recently sought feedback on its data sharing code of practice, wishing to assess the code’s impact on organisations’ data protection and freedom of information law compliance.
This quarter, the Law Commission recommended that a full law reform project should be carried out, to create a “principled and clear legal structure for data sharing”. It did so in its scoping report considering whether there are inappropriate hurdles to effective data sharing between public bodies.
Closed FOIA hearings (Browning v Information Commissioner and Department for Business, Innovation and Skills)
The Court of Appeal ruled on procedure in the FTT(IR) this quarter. It held that the Tribunals, Courts and Enforcement Act 2007 and the First-tier Tribunal (General Regulatory Chamber) Rules 2009 gave First-tier Tribunals the power to exclude both a party and their representative from closed proceedings, except in cases where to do so would prevent the tribunal from hearing the case fairly.
Such a power to exclude even applied where the applicant’s legal representative was willing to give an undertaking that he would keep the closed material confidential from his client. However, the court noted that for such exclusions to be lawful, the tribunal in question must be as open with the excluded party as is possible in the circumstances.
Consultation on changing First-tier Tribunal panel composition
The Courts and Tribunals Judiciary published a consultation on proposals to vary the Senior President’s practice statement to give the flexibility to allow some First-tier Tribunal cases to be decided by a judge sitting alone. Under the proposals, a sole judge would be permitted to hear cases where the issue before the tribunal is, for example, whether the public authority holds the information or is in breach of the time limit, or whether the cost of compliance with the request exceeds the costs limit.
Request successfully specifies Excel format (Innes v Information Commissioner and another)
The Court of Appeal has held that an applicant was permitted to specify that a document be provided in Excel, rather than PDF, format. The court ruled that the software format of information was an aspect of its form, which applicants may specify under section 11 of FOIA. It held that authorities would be protected from disproportionate requests, since the requirement to comply with section 11 is qualified by the authority only having to comply “so far as is reasonably practicable”.
Public bodies should take note of the ruling and be aware that they may have to comply with requests for information in particular software formats; especially where the format affects the usability of the information, and where it is reasonably practicable for them to do so.
No vexatiousness where public authority failed to assist (Chadha v Information Commissioner)
This quarter, the FTT(IR) ruled that an NHS trust was not entitled to refuse an information request as vexatious under section 14 of FOIA where it was the trust’s own failure to provide advice and assistance that was the cause of the applicant’s repeated correspondence. The case illustrates that public authorities’ own actions will be taken into account when assessing whether an information request should be classified as vexatious.
Free schools information (Department for Education v Information Commissioner and another)
The FTT(IR) also ordered the DfE to disclose its free schools team’s internal investigations into Steiner schools. Although the section 35(a) (formulation or development of government policy) exemption was engaged, the tribunal ruled that since free schools were a radical new policy, there should be transparency over how the free schools team engaged with schools with a special philosophical or religious element, in order to allow a fully informed debate about the policy.
The case is a reminder that FOIA may apply to information about free schools and that there may be a strong public interest in transparency regarding government free school policy.
Employee grading criteria successfully requested by district council employee (Bradford Metropolitan District Council v Information Commissioner and another)
Public authorities should be aware that FOIA may enable their employees to scrutinise the fairness of their pay structures, following the FTT(IR)’s ruling that a district council must disclose information on how it graded its employees’ positions. An information request was made by a council assistant manager for full details of the council’s decision to re-grade her role.
The council’s attempt to rely on the exemption in section 36(2)(c) of FOIA (prejudice to the effective conduct of public affairs) failed before the FTT(IR), which was persuaded by guidance from the Equality and Human Rights Commission stating that transparency is a key feature of a non-discriminatory pay structure. The FTT(IR) ruled that it was in the public interest for details of the re-grading decision to be made public; and that rather than creating divisions, transparency would help to remove them.