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 September to December 2016. In this post, we look at:
- The future of the First-tier Tribunal.
- The Information Commissioner’s opinions on issues and developments in freedom of information law.
- Recent case law.
- Legislative developments.
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.
THE FUTURE OF THE FIRST-TIER TRIBUNAL (INFORMATION RIGHTS)
The Independent Commission on Freedom of Information published its report on freedom of information law in March 2016. The commission stated that it considered that the First-tier Tribunal (Information Rights) (FTT(IR)) procedure too closely duplicated the full-merits assessment carried out by the Information Commissioner (IC) and therefore recommended that appeals to the FTT(IR) are removed completely, with appeals going straight to the UT on a point of law only.
In November 2016, the government stated in its response to the Justice Committee’s Second Report that it saw:
“no reason to disagree with the view of the Independent Commission on Freedom of Information that legislation should be introduced to remove the right of appeal to the First-tier Tribunal against an Information Commissioner decision” (at paragraph 28).
In a perhaps more guarded statement on 1 December 2016, the IC emphasised the need for a balance between an expensive and repetitive appeals process and a system that unduly restricts or dissuades requesters (see ICO: Freedom of Information and the digital world (1 December 2016)).
Whether the government will progress to remove or restrict the right of appeal to the FTT(IR) remains to be seen.
A DUTY TO DISCLOSE? INFORMATION COMMISSIONER OUTLINES ISSUES WITH FREEDOM OF INFORMATION LAW
The Information Commissioner (IC), Elizabeth Denham, has outlined issues she perceives in freedom of information law and suggested substantive solutions to them.
In a speech given to celebrate 250 years of freedom of information law, the IC outlined the following shortcomings she perceived in the existing regime and potential remedies to them:
- The duty to document. The increased volume of data and more varied means of accessing it in the digital era risks making information “ever less permanent” if it is not documented. The IC suggested creating a positive, legal obligation on public authorities to document their actions and decisions, apparently in reply to the “challenge of decisions taken by text, by instant message [and] by email”.
- Outsourcing of public services. The IC stated that the requirements of FOIA should not disappear when provision of a public service departs from a public body under an outsourcing contract. Rather, she considered, the right to know about public services should be independent of the service provider. The IC intends to report to Parliament in 2017 regarding outsourcing and transparency.
A human right to freedom of information: refusal of access to information breaches Article 10, ECHR (Magyar Helsinki Bizottság v Hungary (European Court of Human Rights))
The European Court of Human Rights (ECtHR) held that refusal of a request for information in the public interest constituted an unjustified breach of the applicant’s rights to freedom of expression under Article 10 of the European Convention of Human Rights (ECHR). Article 10 provides a right to freedom of expression that includes a right to hold opinions and to receive and impart information and ideas without interference by a public authority. It is a qualified right, and may be infringed by the state where the state can demonstrate that this is justified pursuant to Article 10(2).
The ECtHR upheld the applicant’s appeal and considered that Article 10 permitted a right of access to (or a “right to seek”) information where particular criteria were satisfied, particularly where information was in the public interest and sought for the purposes of “social watchdog” functions. In respect of the latter, the ECtHR acknowledged the privilege this criterion afforded to the press, NGOs and other “social watchdogs”.
The court’s judgment represents a significant development in the interaction between freedom of information, human rights legislation and European law. The ECtHR will now revisit the appeal of the Supreme Court’s (conflicting) decision in Kennedy v Charity Commission  UKSC 20 (26 March 2014), which it stayed pending its consideration of similar core issues in Magyar.
Department of Health permitted to withhold financial information relating to NHS junior doctors contract under section 35(1)(a) (formulation or development of policy) in light of “chilling effect” of disclosure (ICO decision notice FS50627749)
The IC has issued a decision notice which found that the public interest weighed in favour of the Department of Health withholding financial information relating to the new NHS junior doctors contract under section 35(1)(a) of the Freedom of Information Act 2000 (FOIA) (formulation or development of policy).
The case provides an interesting and rare example of the IC applying the “chilling effect” argument in order to uphold a public authority’s decision to withhold requested information, and of its approach in particularly high profile and politically sensitive circumstances.
Home Office permitted to amend exemptions after initial decision to withhold information, to include reliance on section 36 (prejudice to the effective conduct of public affairs) at internal review stage (Lawrence Serewicz v Information Commissioner and another (EA/2015/0258)).
The First-tier Tribunal (Information Rights) (FTT(IR)) held that the Home Office was permitted to rely on section 36 of FOIA (prejudice to the effective conduct of public affairs), despite citing this exemption after its initial decision and before its internal review decision, in order to withhold information relating to the Daniel Morgan Independent Panel.
The case presents an interesting discussion of the application of the section 36 exemption after a public authority’s initial decision to withhold information, itself a relatively controversial issue, and will be of reassurance to public investigatory and inquest panels.
Council required to disclose quarterly financial investment data as administering authority for local government pension fund (IC Decision Notice: FS50083667)
The IC considered that the exemptions in sections 41 (information provided in confidence) and 43(2) (commercial interests) of FOIA could not be relied upon by the City of Bradford Metropolitan District Council to withhold quarterly data relating to a local government pension fund’s holdings. The council was the administering authority for the pension fund.
The case was likely uncontroversial in itself, but presents an interesting point of comparison with an earlier decision involving the same council in April 2016 and a landmark 2007 ICO decision involving Tameside Metropolitan Borough Council (ICO decision notice FS50083667). The arguments made by the requester in the present case before the IC were notable and made interesting reference to councils’ and public sector investors’ approach to disclosure of private equity data in the last decade. These three cases were covered in detail in our Blog post, Public sector investments and the Freedom of Information Act 2000.
Council required to disclose aggregated information on management and budgetary impact of Employment Tribunal equal pay claims under FOIA (ICO decision notice FS50619003)
The IC has issued a decision notice determining that the public interest weighed in favour of disclosure of aggregated information relating to Birmingham City Council’s management of equal pay claims against it in the Employment Tribunal, and that the council could not rely on the exemption in section 36(2)(c), FOIA (prejudice to effective conduct of public affairs).
- The IC accepted that the exemption was engaged and that the Monitoring Officer’s opinion was reasonable. There was, however, a strong public interest in:
Taxpayers being informed of the claims’ potential impact on the council’s budget.
- Demonstrating whether the council had acted fairly and expeditiously, given the time it was taking to settle claims by individuals who it may already have treated unfairly.
The IC considered that a claimant could not readily re-value their claim from the aggregated information given the requirement to establish a specific comparator in equal pay claims. Disclosure would not, therefore, “particularly affect” the council’s negotiating position.
The IC determined that the public interest favoured disclosure and that the council had incorrectly applied the section 36(2)(c) exemption to the withheld information, which it was ordered to disclose.
The case is of particular interest for demonstrating that FOIA’s transparency principles can extend to live issues and, particularly, the handling of on-going litigation where this is on a mass and well-publicised scale.
Freedom of Information (Scotland) Act 2002 (Time for Compliance) Regulations 2016 made by Scottish Parliament
The Scottish Ministers made the Freedom of Information (Scotland) Act 2002 (Time for Compliance) Regulations 2016 (SSI 2016/346) on 1 November 2016, which came into force on 1 December 2016. The TfC Regulations 2016 extend the time in which Scottish grant-aided schools and independent special schools are required to respond to:
- Requests for information made under the Freedom of Information (Scotland) Act 2002 (FOIA Scotland 2002).
- Requests for a review of such a school’s actions or of its decision in relation to requests for information under FOIA Scotland 2002.
The TfC Regulations 2016 allow applicable schools to discount non-school days, and particularly holidays, when calculating timescales for responses under the FOIA Scotland 2002.