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 October to December 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.
INDEPENDENT COMMISSION ON FREEDOM OF INFORMATION
The Independent Commission on Freedom of Information published a call for evidence in October 2015, which proved popular. Over 30,000 responses were submitted, with the result that the Commission’s findings will now not be published until 2016. The Commission will also hear oral evidence from some parties, which is planned to take place during January 2016.
In the meantime the government has postponed making a decision on whether to charge for tribunal appeals from Information Commissioner’s Office (ICO) decisions until the Commission reports (while still going ahead with the introduction of fees for tribunal appeals from other types of tribunal hearings, such as tax appeals).
The House of Commons Library has also published a briefing paper, Freedom of Information: changing the law?, which looks at the proposals for reform of the freedom of information regime, in particular those being examined by the Commission.
TRANSFER OF FUNCTIONS (INFORMATION AND PUBLIC RECORDS) ORDER 2015
The Transfer of Functions (Information and Public Records) Order 2015 came into force on 9 December 2015. The Order transfers some of the statutory functions relating to freedom of information from the Secretary of State to the Chancellor of the Duchy of Lancaster and from the Lord Chancellor to the Secretary of State. It also makes supplementary provisions in connection with the transfer of functions under the Data Protection Act 1998 from the Secretary of State for Justice to the Secretary of State for Culture, Media and Sport.
The main impact of the Order will simply be to transfer freedom of information responsibility to different individuals.
The draft Wales Bill published in October confirmed that public access to information held by a public authority will be a reserved matter in respect of which powers will not be devolved to the National Assembly of Wales (NAW); except for public access to information held by the NAW, the Assembly Commission, the Welsh Government or any Welsh public authority, unless, in each case, supplied by a Minister. These matters listed will become devolved matters if the Bill is passed in this form.
This could mean that a difference in approach to freedom of information law develops between England and Wales in the future.
The ICO has published a guide to disclosing information safely by removing personal data before publishing, so that individuals cannot be identified from any information that is published. The guide is relevant to public authorities responding to a FOIA or EIR request; public authorities proactively publishing data as part of a publication scheme or otherwise making data available, and organisations releasing data in response to a subject access request.
The guide gives examples of inappropriate disclosures of personal data and covers other types of disclosure to be aware of. It also gives an overview of the legal requirements to remove personal data from information being disclosed.
The ICO also announced that it has updated and revised several of its guidance materials following the coming into force of the Re-use of Public Sector Information Regulations 2015 in July 2015. The materials that have been updated include the ICO’s model publication scheme and its guidance on charging for information in a publication scheme and on fees that may be charged when the cost of compliance exceeds the appropriate limit.
Events after information request was refused effectively made it vexatious (RS v Information Commissioner and another)
The Upper Tribunal (UT) re-made a decision of the First-tier Tribunal (Information Rights) (FTT(IR)), holding that, although an information request was not vexatious at the time it was made, facts subsequent to that request being refused meant that the request had “in effect become vexatious”, since it was unrealistic that any further unpublished information existed. The UT therefore ruled that no further steps were required from the council.
Although the UT acknowledged that vexatiousness should be judged on the facts at the time of refusal, it held that it was entitled to take into account events after this when deciding what, if any, steps are required.
FOIA privilege exemption only applies where disclosing authority made aware of litigation purpose (Hallows v Wilson Barca)
The High Court held that the section 42 legal professional privilege FOIA exemption preventing disclosure does not apply unless the public body being asked to publish information has been made aware that the information is required for the purpose of litigation.
In this case, a FOIA request was made for the local planning authority’s views on the likelihood of planning permission being granted for a particular development. These views had previously been obtained by solicitors for possible use in litigation, although they did not state that this was their purpose when obtaining their views. The High Court held that the information should be disclosed under FOIA. The decision makes it clear that those in correspondence with public authorities should be aware of authorities’ FOIA duties.
Public interest requires town council to disclose privileged opinion and advice (Hewlett v Information Commissioner)
The FTT(IR) held that Beccles Town Council must disclose a barrister’s opinion and advice regarding land it holds in trust for the people of Beccles. Despite acknowledging that the section 42 FOIA exemption was engaged, the FTT(IR) held that this was a “rare and exceptional” case in which the public interest lay in favour of disclosure of the advice and opinion. The fact that the council held the land in trust for the people of Beccles was highly persuasive.
FOI request made via Twitter was not valid (Ghafoor v Information Commissioner)
The FTT(IR) held that a FOIA request made via Twitter did not meet the requirements for a valid request, because the requester’s Twitter username was not an address suitable for correspondence concerning his request and because the tweet did not contain the requester’s real name (which was not the same as his Twitter “handle” or username).
Following the judgment, there is still some uncertainty over whether the FTT(IR) intended to rule that Twitter is inherently unsuitable for FOIA requests. It will be interesting to see if any cases are brought in the future in which a challenge is brought against the validity of a request made by someone with a Twitter username that is the same as their real name.
Implementation following ECJ ruling of member state breach formed part of “course of justice” EIR exception (Latimer v Information Commissioner’s Office and another)
The FTT(IR) held that the implementation phase following an ECJ ruling that a member state has breached a Directive formed part of the “course of justice” and UK government correspondence during this phase relating to the ruling was exempt from disclosure under regulation 12(5)(b) of the EIR (adverse effect on course of justice). The FTT(IR) was influenced by the fact that the case may still have returned to the ECJ if negotiations were not successful.
The public interest was held to be against disclosure in this case, but gravity of the adverse effect would vary: other disclosures may be justified as they would only cause “minor and transient” difficulties in negotiation.
Letter from Energy Secretary to Prime Minister complaining about another minister’s conduct ordered to be disclosed under FOIA (Department of Energy and Climate Change v Information Commissioner)
The FTT(IR) refused an appeal against an ICO decision ordering the disclosure of a letter from the Secretary of State for Energy and Climate Change to the Prime Minister complaining about the conduct of another government minister.
The FTT(IR) decided that the:
- ICO had been wrong to order disclosure of the letter under the EIR. Instead, FOIA was the correct regime since the contents of the letter focused on ministerial conduct and governance rather than activities or measures specifically affecting the environment.
- Formulation of government policy exemption under section 35 of the Freedom of Information Act 2000 was engaged.
- Strong public interest in disclosure outweighed the maintenance of the exemption and the letter should therefore be published.
Commercial interests exemption in FOIA not engaged where information is of significant age (Decision Notice FS50591864)
An ICO decision notice found that the commercial interests exemption in section 43(2) of FOIA is not engaged where the information being withheld is of such a significant age that it is unlikely to influence future contract re-negotiations.
The ICO was not convinced that the requested information (about the financial benefits to a local authority as the result of a contract for advertising in bus shelters in 2007) would be of relevance when the contract was re-negotiated in 2030 and the council had not shown that competing contractors would be unduly influenced by what was essentially historical financial information.
The decision makes it clear that to successfully claim an exemption under section 43(2) of FOIA, an authority must show a clear link between the disclosure of information being withheld and the commercial interests of a party.