CAN REQUESTERS ASK FOR SUMMARY INFORMATION?

November 7th, 2011 by Robin Hopkins

Suppose a FOIA request is refused in reliance upon exemptions. Is the requester entitled to submit a further request, asking for summaries of that same information such that the summaries do not contain any exempt information?

This question was considered in Pounder v IC and MOJ (EA/2011/0116). The Tribunal agreed with the Commissioner that the answer to this question is ‘no’. A requester is only entitled to ‘information held’, so if a summary document exists at the time of the request, then that is within scope and (subject to exemptions) must be disclosed. Otherwise, public authorities are not required to create or compile summaries so as to help requesters ‘get round’ exemptions.

Section 11(1)(c) of FOIA provides that where a complainant specifies a preference for the requested information to be produced in the form of a summary or similar précis, the public authority should give effect to that request and preference where reasonably practical to do so. This provision, said the Tribunal, comes into play only once this prior question has been determined, namely: to what information is the requester entitled? The public authority must consider the scope of the request, identify the information it holds within that scope and apply exemptions as it sees fit. Only then must a ‘section 11 preference’ be given effect to where reasonably practical. If a ‘summary’ is not held at the time of the request, then it need not be created.

Robin Hopkins

Tags: ,
Posted in INFORMATION LAW | Comments Off on CAN REQUESTERS ASK FOR SUMMARY INFORMATION?

CRITICISM OF RIPA

November 7th, 2011 by Rachel Kamm

Justice has published a report, Freedom from Suspicion, calling for “a fundamental overhaul of the Regulation of Investigatory Powers Act in order to protect the right of individual privacy from unnecessary, unwarranted and unchecked state intrusion“. The press notice highlights some of the report’s findings:

  • Since RIPA came into force in 2000, there have been 20,000 interception warrants (e.g.secretly listening to phone calls and reading emails), more than 30,000 authorisations for directed surveillance (e.g. following someone in public), and more than 2.7 million requests for communications data (e.g. access to phone bills). The true extent of surveillance activity since 2000 is unknown because full numbers have never been published;
  • Of the nearly 3 million surveillance decisions taken by public bodies under RIPA since 2000, fewer than 5,000 (or 0.5%) were approved by a judge;
  • The highly secretive Investigatory Powers Tribunal, the main complaints body under RIPA, has only dealt with 1,100 complaints since RIPA began. In the last decade, it has only upheld ten complaints;
  • RIPA is poorly-drafted and lacks sufficient safeguards against abuse. This has contributed to the failure of the Metropolitan police to properly investigate phone-hacking, the illegal recording of privileged conversations between lawyers and clients, the spread of CCTV cameras, and the use of snooping powers by local authorities.
The report argues that the proposed amendments to RIPA put forward in the Protection of Freedoms Bill are nowhere near enough to bring Britain’s surveillance laws in line with human rights standards.

Posted in Uncategorized | Comments Off on CRITICISM OF RIPA

PUBLIC AUTHORITIES – ENVIRONMENTAL INFORMATION REGULATIONS

November 4th, 2011 by Rachel Kamm

Further to Robin Hopkin’s post this morning, here is a summary of the First-Tier Tribunal’s decision in Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182).

Mr Bruton had requested environmental information from the Duchy of Cornwall, concerning the conservation of an area designated under the Habitats Directive 92/43/EEC which lies within the Ducy. The Duchy refused the request on ground that it was not a public authority for the purposes of the Environmental Information Regulations 2004 (“the EIRs”).

The statutory framework

Under regulation 2 of the EIRs:

“(2) Subject to paragraph (3), “public authority” means –

(a) government departments;

(b) any other public authority as defined in section 3(1) of the Act Freedom of Information Act 2000, disregarding for this purpose the exceptions in paragraph 6 of Schedule 1 to the Act, but excluding –

(i) any body or office-holder listed in Schedule 1 to the Act only in relation to information of a specified description; or

(ii) any person designated by Order under section 5 of the Act;

(c) any other body or other person, that carries out functions of public administration; or

(d) any other body or other person, that is under the control of a person falling within sub-paragraphs (a), (b) or (c) and –

(i) has public responsibilities relating to the environment;

(ii) exercises functions of a public nature relating to the environment; or

(iii) provides public services relating to the environment.”

The EIRs of course implement Directive 2003/4/EC of 23 January 2003 on public access to environmental information (“the Directive”). This provides that:

“2. ‘Public authority’ shall mean:

(a) government or other public administration, including public advisory bodies, at national, regional or local level;

(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and

(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).

Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition.”

The Tribunal also took into account the definition of a public authority for the purposes of the Aarhus Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters.

The issues

The Tribunal was mindful that the concept of public authority that pertains in relation to the public’s right of access to environmental information as deployed in the Directive must be construed having regard to the wider scheme of EU environmental law, in particular the Habitats Directive (paragraphs 20-21).

It identified at paragraph 32 that the questions to be decided were:

a) Whether the Duchy was a body or other person, and

b) If so, whether it carried out functions of public administration, or

c) Whether the Duchy was under the control of the Duke who carries out functions of public administration and has public responsibilities relating to the environment, exercises functions of a public nature relating to the environment, or provides public services relating to the environment.

Whether the Duchy was a body or other person

On the first issue, the Tribunal considered detailed evidence about the Duchy, which makes for an interesting (if esoteric) read. It concluded that, “whatever the basis of the Duchy under the 1337 Charter, we find that the Duchy is now a body or other legal person. Taking into account all the above evidence and other statutory provisions, the practices of the Duchy and the way it has presented itself to the world including Parliament, the differentiation of the Duchy and Duke in commercial and tax matters as well as under legislation and the contractual behaviour of the Duchy, we are led to the conclusion that the Duchy is a body or other person for the purposes of regs 2(2)(c) and (d) of the EIR” (paragraph 57).

Whether it carried out functions of public administration

The Tribunal described the Upper Tribunal decision in  Smartsource v IC and others [2010] UKUT 415 (AC) as “very relevant” here (paragraph 58). It found that Smartsource meant that “a body which carries out functions of public administration will not be a public authority for the purpose of the EIR if those functions are on the whole secondary functions which are related to and flow from primary functions which are not functions of public administration. But where the functions of public administration are separate self standing functions which do not flow from or depend on the main activity of the body, they are not “ancillary” in Smartsource terms and the body may be a public authority for the purpose of the EIR” (paragraph 63). Note that this aspect of the decision may well not be the final word on this topic. The Upper Tribunal is due to hear an appeal in Fish Legal and Shirley v IC and United Utilities Water plc and others (GIA/0979 & 0980/2011) in January 2012, which will include consideration of  the Upper Tribunal’s decision in Smartsource v IC and others [2010] UKUT 415 (AC).

Applying this test in the case of the Duchy, the Tribunal found that its primary function (according to its 2010/11 Annual Report) was to provide an income for present and future Dukes and that the Duchy’s principal activity to generate this income was the commercial management of its lands and properties (paragraph 64).

The Tribunal found (after a further lengthy esoteric discussion) that it was also a Statutory Harbour Authority (paragraph 87).  As such, it was a relevant authority and a competent authority for the purposes of the Habitat Directive and the Conservation of Habitats and Species Regulations 2010 (paragraph 97). The judgment records (without expressly endorsing) the argument of the Appellant that “it would be entirely contrary to the aims of the Aarhus Convention, the Directive and the EIR if a body which is a ‘relevant authority’ for the purposes of what the European Commission has stated is “the cornerstone of Europe’s nature conservation policy” (alongside the Birds Directive) was not subject to the European access to environmental information regime” (paragraph 92).

The Tribunal applied the multifactorial approach in Smartsource to the Duchy’s activities as a Statutory Harbour Authority and concluded that “the preponderance of factors point to the Duchy carrying out functions of public administration. This conclusion does not mean that we consider all Statutory HAs will necessarily be public authorities under the EIR. It depends on the facts in each case” (paragraph 99).  (In the alternative, it found that the Duke was the Statutory HA (paragraph 100).) It further concluded that these functions were not ancillary to the Duchy’s primary business (paragraph 101).

Where have we got to so far?

At this point of the judgment, the Tribunal helpfully summarises its conclusions as follows (paragraph 102):

“So far we have found that:

i) The Duchy is a body or other person;

ii) The Duchy is a Statutory HA;

iii) Statutory HAs are ‘relevant authorities’ and likely ‘competent authorities’ under the UK regulations implementing the Habitat Directive;

iv) The Aarhus Convention requires the Directive to be read purposively so as to cover information requests relating to the EU environmental regime as a whole;

v) Statutory HAs carry out functions of public administration;

vi) Therefore the Duchy is a public authority under reg 2(2)(c);

vii) Even if the Duchy is not the Statutory HA, the Duke is;

viii) The present Duke manages and controls the Duchy;

ix) Then the Duchy is a public authority under reg 2(2)(d).”

The most interesting point here is that the Tribunal accepts the Appellant’s argument (which was not expressly endorsed at paragraph 92, as discussed above) that the Directive has to be read so as to cover information requests relating to the EU environmental regime as a whole. Does this mean that any competent authority for the purposes of the Habitats Directive and/or other environmental directives must be a public authority for the purposes of the EIRs?

Conclusions

Having reached the above findings, the Tribunal found that it did not need to go any further. The fact that the Duchy was a public authority for the purpose of the EIRs in its capacity as a Statutory Harbour Authority meant that it was a public authority for the purposes of the EIR generally (paragraph 103).

The Tribunal did go on to comment on two other factors which it considered also pointed towards the Duchy being a public authority that was subject to the EIRs. These factors were that the Duchy provided an income for the Price of Wales in his constitutional capacity to undertake public services and that it enjoys a statutory right to bona vacantia.

The decision only applies to public authorities for the purposes of the EIR and not also FOIA. However, as discussed in previous posts (e.g. here) the definition of environmental information is wide.

Tags: ,
Posted in Uncategorized | Comments Off on PUBLIC AUTHORITIES – ENVIRONMENTAL INFORMATION REGULATIONS

UFO OFFICIALS’ PRIVACY PROTECTED

November 4th, 2011 by Robin Hopkins

This afternoon’s Tribunal decision in McGonagle v IC and MOD (EA/2011/0104) brings a sci-fi twist to FOIA caselaw. The decision is a straightforward application of the s. 40(2) exemption for personal data. The context is rather quirkier: the requester had sought the names of former Ministry of Defence officials responsible for UFO matters (note: that role has now been disbanded). The Tribunal found that the exemption applied. For those with an interest in such things, however, the MOD’s publication scheme provides rather a lot of UFO-related material.

Robin Hopkins

Tags:
Posted in INFORMATION LAW | Comments Off on UFO OFFICIALS’ PRIVACY PROTECTED

DUCHY OF CORNWALL IS A PUBLIC AUTHORITY

November 4th, 2011 by Robin Hopkins

The Tribunal’s decision in Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182) was published yesterday. The issue was whether the Duchy is a “public authority” for the purposes of the Environmental Information Regulations 2004. The Tribunal decided that it is. 11KBW’s Karen Steyn and Joseph Barrett appeared for the Appellant, Amy Rogers (led by Jonathan Crow QC) appeared for the Duchy and Attorney General, and I appeared for the Information Commissioner. Panopticon will provide some analysis of the decision shortly – but in the meantime, there has been considerable press coverage: see for example here and here.

Robin Hopkins

Tags: ,
Posted in INFORMATION LAW | Comments Off on DUCHY OF CORNWALL IS A PUBLIC AUTHORITY

AGGREGATION UNDER S. 12 FOIA: STICK TO THE STATUTORY TEST

October 11th, 2011 by Robin Hopkins

In Benson v IC and the Governing Body of Buckinghamshire New University (EA/2011/0016), the public authority relied upon s. 12 FOIA (cost of compliance) in refusing the multi-part request. In so doing, it aggregated the requests, i.e. it looked at the cost of complying with all parts of the request cumulatively, rather than on a part-by-part basis. Regulation 5(1) of the 2004 Fees Regulations allows for the aggregation of requests where two or more requests made by or on behalf of the same person within a 60-day period “relate, to any extent, to the same or similar information”. The Commissioner agreed with the public authority. He referred to Fitzsimmons v IC and DCMS (EA/2007/0124), where the Tribunal had emphasised the width of the test for aggregation (“to any extent”; “same or similar”).

The Commissioner also took the view that requests were similar where there was an “overarching theme” or “common thread” running between them in terms of the nature of the information requested.

The Tribunal allowed Mr Benson’s appeal. Much turned, of course, on the specific facts. But those who encounter or apply s. 12 FOIA will wish to note the following more general observations (see paragraph 29).

First, tests such as “overarching theme” or “common thread” were, in the Tribunal’s view, not compelling, because they raised concepts not used in the legislation itself.

Secondly, any consequent uncertainty should be resolved in the requester’s favour (though it is not immediately clear whether this last point was intended to be case-specific or more general).

Robin Hopkins

Tags: ,
Posted in INFORMATION LAW | Comments Off on AGGREGATION UNDER S. 12 FOIA: STICK TO THE STATUTORY TEST

PUBLIC AUTHORITY

October 3rd, 2011 by James Goudie QC

The Irish Commissioner for Environmental Information, Emily O’Reilly, on 30 September 2011 ruled that Anglo Irish Bank is subject to requests from the public relating to the environment, on the basis that for environmental information purposes the Bank, which was nationalised in January 2009, is a public authority.  The Bank had, under the European Communities (Access to Information on the Environment) Regulations 2007, refused requests relating to matters such as travel expenses and properties on the basis that it is a company, as indeed it is.  The Bank argued that it is not a public body, even though all its shares are held by the Minister of Finance.  The Commissioner, Case CEI/10/0007, disagreed.  The Bank can appeal to the High Court.

A company in which all the shares are directly held by a Minister of the Government is not amongst the entities specifically listed in EU Directive 2003/4/EC or the Aarhus Convention, but is specifically listed in the Irish Regulations, on their plain and ordinary reading.  The Commissioner ruled that the meaning of the Irish Regulations is clear and unambiguous, without any further conditions applying as to public administrative functions and responsibilities.  Nor did she regard this as being at odds with the Directive.  On the contrary she said that “it is very arguable that the Directive, in particular Recitals (11) and (24), encourages and enables Member States to take an expansive approach” to what constitutes a “public authority”.   (The same can be said of the Aarhus Convention, in particular Article 2.2.)  She did not accept that the definition of “public authority” in the Irish Regulations should be interpreted restrictively where a Member State has apparently chosen to take an expansive approach to the definition.

In the UK under FoIA and the Environmental Information Regulations 2004, and their Scottish equivalents, a company which has no members other than a Minister of the Crown (including a Northern Ireland Minister) is a public authority.  No doubt a UK Court would agree that this is not at odds with the Directive, either as being in accordance with it or as being a legitimate expansion of it (and, in the case of the Environmental Information Regulations, made under the European Communities Act 1972, intra vires).

Posted in Uncategorized | Comments Off on PUBLIC AUTHORITY

DUTY TO PUBLISH

September 30th, 2011 by James Goudie QC

Part 2 of the Local Government, Planning and Land Act 1980 (Sections 2 to 4) relates to publication of information by local authorities.  These provisions implemented some of the proposals which were contained in a consultation document, “Publication of Financial and Other Information by Local Authorities”, issued by the Department of the Environment in October 1979.  As originally envisaged, the placing of a duty upon local authorities to publish information with regard to the discharge of their functions was to be secured primarily by regulations made by the SoS under the Act, but with supplementation from a Code of Practice prepared jointly by CIPFA and SOLACE.  As enacted, s2 makes a Code of Recommended Practice (or more than one) the primary vehicle for securing publication by specified authorities of this information, the SoS retaining a fallback power to enable him to make regulations requiring authorities to comply with any provision in the Code or Codes if in some way they fail to do so.  S3 gives the SoS power to make regulations in order to secure that where they are not already doing so authorities publish the information which is required by any code of recommended practice issued under s2.

Pursuant to s2, on 28 September 2011 the SoS published a Code of Recommended Practice for (English) Local Authorities on Data Transparency.  Paragraph 12 states that, as a minimum, the public data, meaning the objective, factual data, on which policy decisions are based and on which public services are assessed, or which is collected or generated in the course of public service delivery, that should be released are:

  • Expenditure over £500, (including costs, supplier and transaction information).  Any sole trader or body acting in a business capacity in receipt of payments of at least £500 of public money should expect such payments to be transparent.

 

  • Senior employee salaries, names (with the option for individuals to refuse to consent for their name to be published), job descriptions, responsibilities, budgets and numbers of staff.  ‘Senior employee salaries’ is defined as all salaries which are £58,200 and above (irrespective of post), which is the Senior Civil Service minimum pay band.  Budgets should include the overall salary cost of staff reporting to each senior employee.

 

  • An organisational chart of the staff structure of the local authority including salary bands and details of currently vacant posts.

 

  • The ‘pay multiple’ – the ratio between the highest paid salary and the median average salary of the whole of the authority’s workforce.

 

  • Councillor allowances and expenses.

 

  • Copies of contracts and tenders to businesses and to the voluntary community and social enterprise sector.

 

  • Grants to the voluntary community and social enterprise sector should be clearly itemised and listed.

 

  • Policies, performance, external audits and key inspections and key indicators on the authorities’ fiscal and financial position.

 

  • The location of public land and building assets and key attribute information that is normally recorded on asset registers and

 

  • Data of democratic running of the local authority including the constitution, election results, committee minutes, decision-making processes and records of decisions.

Paragraph 20 states that the Government believes that local transparency can be implemented in a way that complies with the DPA.

Tags: ,
Posted in Uncategorized | Comments Off on DUTY TO PUBLISH

FROM NAKED PHOTOS TO NUCLEAR ENRICHMENT: ROUNDUP OF NEW TRIBUNAL DECISIONS

September 26th, 2011 by Robin Hopkins

The past week saw a slew of new decisions from the First-Tier Tribunal. Here is Panopticon’s highlights package.

Sections 41 (information obtained in confidence) and 43 (commercial prejudice)

In DBIS v IC and Browning (EA/2011/0044), the requester (a Bloomberg journalist) had sought information from the Export Control Organisation in connection with licences issued for the exporting to Iran of “controlled goods” – explained by the Tribunal as “mainly military, dual use (potentially military), equipment designed for torture or repression or sources of radio-activity”. The relevant public authority, the Department for Business, Innovation & Skills, refused the request, relying on sections 41 and 43. The IC found for the requester on the narrow basis that, whilst disclosure would result in a breach of confidence, no commercial detriment would be suffered by the licence applicants as a result. Subsequent evidence from the Department persuaded the IC to change position and support the appeal, which was resisted by the applicant. In a decision which turned on the evidence, the Tribunal allowed the appeal, and found both sections 41(1) and 43(2) to be effective.

Section 42 (legal professional privilege)

Two recent decisions on this exemption. Both saw the Tribunal uphold the refusal, applying the established approach under which this exemption has a strong in-built public interest. Szucs v IC (EA/2011/0072) involved an FOIA request about an earlier FOIA request (the appellant requested the legal advice and associated documents provided to the Intellectual Property Office about how to deal with a previous FOIA request made by the appellant’s husband). Davis v IC and the Board of Trustees of the Tate Gallery (EA/2010/0185) is eye-catching primarily because it concerned the Tate’s legal advice concerning the inclusion in an exhibition of a photograph of the actress Brooke Shields, aged ten, naked, entitled “The Spirit of America” (the Tate had initially proposed to include this in an exhibition, but ultimately withdrew the photograph).

Section 40 (personal data)

Beckles v IC (EA/2011/0073 & 0074) concerned the identifiability of individuals from small sample sizes, in the context of information about dismissals, compromise agreements and out-of-court settlements. The appellant asked Cambridge University for information on (among other things) the number of employees who received post-dismissal settlements. The answer was a low number. He asked for further details concerning the settlement amounts, rounded to some appropriate non-exact figure. This, said the Tribunal (applying the Common Services Agency/Department of Health approach to identifiability from otherwise anonymous figures) was personal data, the disclosure of which would be unfair. Its reasoning is summed up in this extract:

“Information as to the settlement of a claim made by an identified individual relating to his or her employment is undoubtedly personal data. The question is whether the four individuals or any of them could be identified if the information requested were disclosed, even in approximated form…. Cambridge University is made up of a large number of much smaller academic or collegiate communities. It is likely that a number of colleagues or friends will be aware that a particular individual settled a claim with the University within the time-scale specified. They will be aware of the general nature of that person`s employment. This is a small group of claims in a relatively short period. In the form originally requested it is readily foreseeable that one or more of the four will be identified.”

Sections 24 (national security) and 27 (international relations)

Burt v IC and MOD (EA/2011/0004) concerned information gathered by staff of the UK Atomic Weapons Establishment on an inspection visit to a United States atomic energy facility, as a learning exercise regarding the proposed development of an enriched uranium facility at Aldermaston. The US had expressed its desire to maintain proper confidence in what it regarded as a sensitive area. The MOD refused the request, relying on sections 27 and 24. By the time of the appeal, only a small amount of information had not been disclosed. This was primarily of a technical nature, containing observations about the operation of plant, machinery, procedures and processes at the US facility.

The Tribunal upheld the MOD and Commissioner’s case as regards the outstanding material. As regards section 27, the Tribunal applied the principles from Campaign against the Arms Trade v IC and MOD (EA/2006/00040). It observed, however, that confidential information obtained from another country would not always be protected by section 27: it was “perhaps axiomatic that the foreign State will take the United Kingdom as it finds it including but not limited to the effect of its own domestic disclosure laws. It follows that there may well be cases where information otherwise imparted in confidence from a foreign State to a United Kingdom authority would need to be considered on its own merits as to whether some form of disclosure should be made or ordered whether under FOIA or under similar analogous legislation or principles such as the UK data protection principles.”

As regards section 24, the Tribunal applied Kalman v IC and Department of Transport (EA/2009/0111) (recourse to the exemption should be “reasonably necessary” for the purpose of safeguarding national security), and Secretary of State for the Home Department v Rehman [2003] 1 A 153 (the threat to national security need not be immediate or direct).

Burt is also an example of a “mosaic effect” case: taken in isolation, the disputed information may appear anodyne, but the concern is with how it might be pieced together with other publicly available information.

Section 14(1) FOIA (vexatious requests)

Dransfield v IC (EA/2011/0079) is an example of the Tribunal overturning the Commissioner’s decision that section 14(1) had been engaged (for another recent example, see my post here). As with many such cases, the history and context were pivotal. Given that it is the request, rather than the requester, which must be adjudged to be vexatious, how should the context be factored in? The Tribunal gave this useful guidance:

“There is, however, an important distinction to be drawn between taking into account the history and context of a request, as in the cases referred to above, and taking into account the history and context of other requests made by a requester or other dealings between the requester and the public authority. The former is an entirely proper and valid consideration. The latter risks crossing the line from treating the request as vexatious, to treating the requester is vexatious. That line, in our view, was crossed in the present case.”

Robin Hopkins

Tags: , , , , , , , , , , , , , ,
Posted in INFORMATION LAW | Comments Off on FROM NAKED PHOTOS TO NUCLEAR ENRICHMENT: ROUNDUP OF NEW TRIBUNAL DECISIONS

Section 11 and the Form of a Request

September 19th, 2011 by Christopher Knight

Although not a decision which is likely to make front-page news anywhere, the Tribunal’s recent decision in Innes v Information Commissioner (EA/2011/0095) does contain a couple of points of practical utility. The request was for information relating to 11+ results and the appellant objected that he had requested that the information be supplied to him in the form of a Microsoft Excel spreadsheet file (other software is available). The public authority declined to do so on the basis that it was not obliged under s.11 FOIA to provide information in a particular format, and that in any event, the clarification that Excel was wanted was made after the request and so did not fall within s.11 on that basis either.

The Tribunal dismissed the appeal. It upheld the Commissioner’s practice of distinguishing between a “form” (as specified in s.11) and a ‘format’ (not specified). Requesting information be supplied electronically is a form, but requesting it in an Excel spreadsheet is a format, and a step too far. The Tribunal considered that this was the clear effect of the language of s.11(1) and that reference to Hansard was unnecessary. The Tribunal accepted that the Inner House of the Court of Session had come to a persuasively similar view in respect of the equivalent Scottish provisions: Glasgow City Council v Scottish Information Commissioner [2009] CSIH 73. The distinction is between permanent (i.e. paper) and another (i.e. electronic) form and not more specific than that.

The Tribunal confirmed that any preference must be expressed at the time of request, as clearly set out in the wording of s.11. The reasonable practicability test does not apply to this.

The Tribunal also reiterated its position that the requirements of s.16 FOIA and the accompanying Code of Practice do not extend to the public authority explaining the information it has provided to the requestor.

As noted at the outset, the case hardly sets the world alight, but it does provide a welcome clarification on what is covered by a preference for “form” in s.11(1) which is likely to be practically useful to public authorities faced with demands to supply information in a particular electronic format. The Commissioner’s public position on the point remains the clearest guidance. There is, of course, nothing to stop an authority complying with that request if it wishes to do so, but FOIA does not impose any obligation.

Tags:
Posted in Uncategorized | Comments Off on Section 11 and the Form of a Request

« Older Entries
Newer Entries »