Practical Law

This is the fourth 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 October to December 2013.

Please feel free to submit a comment below or contact us at feedback@practicallaw.com 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.

 CHANGES TO DEFINITION OF HISTORICAL RECORDS (SCOTLAND)

The Scottish Government has indicated that it will introduce an order to reduce the period of time at which a record becomes “historical” (and therefore publicly disclosable) from 30 to 15 years, with effect from 1 April 2014. This contrasts with the recent change in England from 30 to 20 years with effect from  January 2013.

ICO GUIDANCE

There have been new or updated pieces of guidance from the Information Commissioner’s Office (ICO) this quarter, including:

• On the time limits for complying with requests for information under FOIA and the EIR.
• On the fees that may be charged for FOIA applications, both if the appropriate limit on costs in section 12 of FOIA is, and is not, exceeded (which has been updated to cover the disclosure of datasets).
• A definition document for Northern Ireland Education and Library Boards, covering the documents that they are expected to include in their publication schemes.

CASE LAW: EIR or FOIA?

Is information on environmental decision-making “on” the environment? (Department for Education v Information Commissioner (EA/2013/0107 & 0108))

The First-tier Tribunal (Information Rights) (FTT(IR)) held that a request for information regarding the decision to dispose of school playing fields should be dealt with under the EIR, rather than FOIA. Even though the request was for information about the public body’s internal decision-making process, rather than directly about the environment, if consent were given to sell the field off, it was more likely than not that the land would be redeveloped, which would be likely to affect the land or landscape.

Even though the information may not have a direct effect on the environment, it was still “on” the environment within the meaning of regulation 2(1) of the EIR.

 CASE LAW: MEANING OF “HELD”

There have been two significant cases considering section 3 of FOIA this quarter (whether information was held by or on behalf of the public body receiving an information request):

Information held by volunteer governors on behalf of college (King’s College, Cambridge v Information Commissioner and another (EA/2012/0049, EA 2012/0085))

The FTT(IR) ruled that information held by individual governors of King’s College School was held on behalf of King’s College, Cambridge, whether or not those governors were Fellows of King’s College, Cambridge. (In a separate ruling, the school had already been found to be part of the college for the purposes of FOIA.) The FTT(IR)’s reasoning was that the school’s governors acted on behalf of the school (and the college) and therefore the information held by all of them when acting in that regard was disclosable by the college under FOIA.

The decision does not mean that all information held by private individuals who work for public authorities is disclosable; only that which is held on behalf of the public authority. Records of informal discussions among volunteers not intended for submission to the relevant public body are unlikely to be held on behalf of that body.

Information held by joint committee also held by join committee member (Case v Information Commissioner (EA/2013/0045))

The FTT(IR) ruled that Colehill Parish Council (CPC) (which was a member of a joint committee (JC) made up of three local burial authorities) held information in the possession of the JC for the purposes of FOIA. CPC’s argument that it did not hold the information (it held it on behalf of the JC, rather than holding it for itself) was rejected and CPC had to disclose the information.

Public bodies must therefore note that all information relating to joint committees that they work on may be held as being held by those bodies and is therefore potentially disclosable.

CASE LAW: PERSONAL DATA EXEMPTION (SECTION 40 FOIA)

Meaning of “personal data” (R (Kelway) v The Upper Tribunal (Administrative Appeals Chamber) and Northumbria Police and R (Kelway) v Independent Police Complaints Commission [2013] EWHC 2575 (Admin))

In this case, the High Court helpfully established a “pecking order” for applying the tests on the meaning of “personal data”: the test set out in Durant v Financial Services Authority [2003] EWCA Civ 1746; the DPA definition of personal data; the guidance contained in the Article 29 Working Party’s opinion on the concept of personal data; and the Information Commissioner’s technical guidance note.

Personal data exemption applies to benefits information even when requested for use as litigation defence (Wears v Information Commissioner (EA/2013/0057))

The FTT(IR) refused to order the Department for Work and Pensions to disclose whether particular people were on benefits at a particular time, as this was personal data under section 40(2) of FOIA. This was held despite the fact that the information requester had been providing accommodation to the individuals in question and needed the information as proof in order to overturn a county court judgment against him concerning an overpayment of housing benefit made to him.

Courts and tribunals are obviously unwilling to bend the rules and compromise individuals’ personal data, even for seemingly “just” causes.

No need to confirm or deny police officers’ own criminal convictions (Benjamin Gaule v IC (Freedom of Information Act 2000) [2013] UKFTT EA/2013/0158 (GRC))

The FTT(IR)) in this case ruled that the Crown Prosecution Service need neither confirm nor deny whether it held any information about police officers’ own past criminal convictions under section 40(5) of the Freedom of Information Act 2000 (FOIA), since disclosure would breach the Data Protection Principles.

Here, the information was requested by a prisoner who was attempting to appeal against his criminal conviction and who wanted to know whether any of the officers who questioned him themselves had any criminal convictions.

Job titles, not names of staff, should be disclosed (Chapman v Information Commissioner (EA/2013/0073))

The FTT(IR) ordered that names of non-public facing staff who attended controversial HS2 meetings should not be disclosed as they constituted personal data, but that it was in the public interest for their job titles and reporting lines to be published.

Names of journalists should be disclosed (Christopher Colenso-Dunne v Information Commissioner (EA/2012/0039))

In contrast to the HS2 case above, here the FTT(IR) felt there to be sufficient public interest in disclosure to order ICO to disclose the names of the journalists referred to in the ICO’s “What price privacy” report, who had instructed private investigators involved in the illegal trade of personal information.

CASE LAW: OTHER FOIA EXEMPTIONS

Section 35: government policy and Rowntree takeover decision (Cabinet Office v The Information Commissioner and Gavin Aitchison [2013] UKUT 526 (AAC))

The Upper Tribunal held that it was in the public interest for information about the take-over of Rowntree Mackintosh by the Nestlé group of companies in 1988 to be disclosed. The FOIA exemptions relating to the “formulation of government policy” or “ministerial communications” in sections in section 35(1)(a) and (b) would otherwise have been engaged. However, the public interest was in favour of disclosure.

The Upper Tribunal found that it was legitimate when balancing the public interest to take into account the changing government policy towards disclosure of historical records, the time limit for which has changed from 30 to 20 years after their creation (see Legal update, FOIA: “30 year rule” changed to 20 years for access to government records). The documents requested were 22 years old, and would have become disclosable anyway under the transitional provisions in the legislation during 2016. Therefore, the Upper Tribunal decided to allow their disclosure now, because the documents still raised key public interest issues.

Section 35: number of times a sub-committee has met (Cabinet Office v Information Commissioner (EA/2013/0119))

The FTT(IR) ruled that Cabinet Office must publish the number of times that a Cabinet sub-committee had met. Although the section 35 government policy exemption was engaged on the facts, the public interest was in favour of publication in this case.

Sections 41 and 42: confidential and privileged data (Michael Hayden v Information Commissioner (EA/2013/0096))

This quarter, the tribunals have been as reluctant as ever to infringe on legal professional privilege, even in the context of a public-spirited information request. In this case, the FTT(IR) refused to allow a request for a copy of counsel’s opinion on the legality of the National Driver Offender Retraining Scheme.

Sections 41 and 43: tender information (Telford & Wrekin Council v Information Commissioner and Honarmond (EA/2013/0035))

The FTT(IR) decided that the council need not disclose information about unit costs, price schedules and discount terms forming part of a tender, which it had originally withheld under the FOIA section 43 exemption (prejudice to commercial interests). The council successfully applied to change the exemption relied on during the appeal, to section 41 (confidential information).

The tribunal found the tender information to be confidential information and so section 41 applied to it. Although section 41 is an absolute exemption, the duty of confidence can be outweighed if there is an overriding public interest that favours the disclosure of the information it relates to. However, the tribunal found no such reasons for disclosure.

The case suggests that public bodies responding to FOIA requests for tender information may find it easier to rely on section 41 than 43, provided the information meets the necessary tests.

Section 44: publication prohibited under another statute (Wendy Stephen v IC (EA/2013/0109))

The General Medical Council (GMC) was not obliged under FOIA to publish information that it had received from the Legal Services Commission (LSC), because the section 44 exemption under FOIA applied: publication was prohibited under another statute. (Section 38(1) of the Legal Aid Act 1988 prohibited disclosure of information supplied to the Legal Aid Board and this prohibition stayed in place when the Legal Aid Board was subsequently replaced by the LSC.)

The exemption was held to continue to apply despite the fact that the owner of the exempt information had shared it with a third party (the GMC).