Our quarterly freedom of information law 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 2017. In this post, we look at:
- Court of Appeal decisions.
- Decisions of the First-tier Tribunal (Information Rights).
- Government publications.
- Featured blogs.
- 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.
COURT OF APPEAL DECISIONS
FOIA public interest test does not require legislative interpretation or compatibility with United Nations Convention on the Rights of the Child (Willow v Information Commissioner and another)
On 22 November 2017, the Court of Appeal (CoA) held that the Ministry of Justice (MoJ) had correctly applied the section 31(1)(f) exemption of FOIA, relating to prejudice to the maintenance of security and good order in prisons or in other institutions where persons are lawfully detained, in order to withhold redacted information in a physical restraint training manual. It also held that the Information Commissioner (IC) and subsequent tribunals’ decisions had not been required to consider Article 3 of the United Nations Convention on the Rights of the Child (UNCRC), and had not breached the UNCRC.
In rejecting the information requester’s appeal, the CoA considered that the IC, First-tier Tribunal (Information Rights) (FTT(IR)) and Upper Tribunal had not:
- Acted irrationally or perversely by holding that the MoJ had been permitted to rely on section 31(1)(f) to withhold the information. The information that was already in the public domain meant that additional transparency, as a result of disclosure, would be limited. The FTT(IR)’s decision was briefly but adequately reasoned.
- Breached Article 3 of the UNCRC, which they had not been required to consider given that it was an international treaty that was not given domestic legislative effect, and the meaning of public interest was sufficiently clear not to require section 2 of FOIA to be interpreted with reference to it. The IC and tribunals’ had, in any event, considered the interests of children in their determination of the public interest test.
The case presents an interesting and rare examination of the application of treaty rights in the context of FOIA and, particularly, the public interest test.
DECISIONS OF THE FIRST-TIER TRIBUNAL (INFORMATION RIGHTS)
Information Tribunal holds Home Office had no obligation to disclose information on pathologist workload (Grant Workman v Information Commissioner)
The FTT(IR) has dismissed an appeal against a decision of the Information Commissioner that the Home Office was not obliged to disclose how many autopsies the police had asked a particular forensic pathologist to conduct over a ten-year period. The appeal relied on the exemptions under section 40(2) (personal data) and section 36 (prejudice to effective conduct of public affairs) of FOIA.
Scottish government consults on extending coverage of Freedom of Information (Scotland) Act 2002 to registered social landlords and their subsidiaries
The Scottish Government has published a consultation on a draft order that will extend coverage of the Freedom of Information (Scotland) Act 2002 (FI(S)A 2002) to registered social landlords (RSLs) and their subsidiaries.
The FI(S)A 2002 provides a statutory right of access to information that Scottish public authorities hold. The provisions of the Act can be extended, by an Order under section 5, to bodies that carry out functions of a public nature or that provide under contract a service that is a function of a Scottish public authority. Such bodies would also automatically become subject to the duties that public authorities are required to undertake under the Climate Change (Scotland) Act 2009.
The consultation closes on 7 March 2018.
Cabinet Office launches consultation on updated FOIA Code of Practice
On 15 November 2017, the Cabinet Office launched a consultation on a revised Code of Practice to the FOIA.
The Code of Practice, also known as the access code, provides guidance for public authorities on best practice for compliance with FOIA. It was issued pursuant to section 45 of FOIA. The Code of Practice is not legally binding but a failure to follow it may mean that a public authority will be deemed to have breached FOIA. The current version was published in 2004, and the government announced in May 2016 that it intended to revise it.
The consultation closes on 2 February 2018.
We have published the following blog that may be of interest to information law practitioners:
- GDPR compliance and Practical Law’s new data processing clauses.
- Six months to go: new GDPR content to highlight.
- GDPR is changing the game: the results of Practical Law’s in-house compliance survey.
RECENT ASK QUERIES
We have published the following Ask query:
- Can a third party proactively submit objections to a prospective disclosure under the Freedom of Information Act 2000?