Earlier this year, we posted on the Deputy Prime Minister’s announcement that a number of bodies – including the Association of Chief Police Officers – would become subject to FOIA. In response to a question from Green MP Caroline Flint, the Justice Minister Nick Herbert has confirmed that an order would be placed before Parliament in the spring to implement this extension of FOIA to ACPO. It’s not clear if and when the same will be done for any other bodies mentioned in Mr Clegg’s speech, such as UCAS and the Financial Services Ombudsman.
CONTRACTING OUT OF FOIA AND THE DPA?
February 22nd, 2011 by Robin HopkinsRoy Greenslade has posted a very interesting piece this afternoon on his blog on the Guardian website about a purported instance of “contracting out” of FOIA and DPA rights. According to his piece, Cheshire West and Chester Council has signed a compromise agreement with a former employee in which he or she contracts not to make requests to the Council under FOIA or the DPA (the EIR is not mentioned). The Council is confident that these provisions are effective. The ICO takes the opposite view – I suspect it will not be alone in doing so. Click here to read the piece.
CONFIDENTIAL COMMERCIAL INFORMATION AND HUMAN RIGHTS – NEW TRIBUNAL DECISION
December 21st, 2010 by Anya ProopsA question which is frequently posed under both FOIA and the EIR is whether and to what extent confidential, commercial information can lawfully be withheld by a public authority. The recent decision of the First Tier Tribunal in the case of Staffordshire County Council v IC & Silbelco [2010] UKFTT 573 (GRC), (EA/2010/0015) embodies a number of important principles which should be considered whenever this question is being posed.
In Staffordshire, a request had been made for disclosure of particular commercial information consisting of the sales figures and reserve figures which a particular quarry operator (Sibelco) had generated in respect of the minerals which it quarried. The information had been provided by Sibelco to the local authority under a voluntary scheme. The scheme had been set up with a view to assisting the authority in discharging its statutory obligations as a mineral planning authority. Sibelco had provided the information to the authority on the express basis that it was to be treated in strictest confidence. Following a request for disclosure of the information, the authority refused to disclose the information on the basis that it was exempt under s. 41 FOIA (the confidential information exemption). During the complaints process before the Commissioner, the authority accepted that, in view of the environmental nature of the information, the applicable access regime was the EIR, rather than FOIA. However, it went on to argue that the information was still exempt under r. 12(5)(e) (commercial/confidential information exception) or 12(5)(f) (exception in respect of information provided in confidence) EIR. The Commissioner accepted that both exceptions were engaged in respect of the disputed information. However, he concluded that, on an application of the public interest test, the public interest weighed in favour of the information being disclosed. The authority appealed the Commissioner’s decision to the First Tier Tribunal. The Tribunal held that the Commissioner had erred as the public interest balance provided for under r. 12(1)(b) EIR weighed in favour of the information being withheld.
Importantly, in analysing the application of the public interest test the Tribunal took into account the recent Court of Appeal judgment in Veolia v Nottinghamshire CC [2010] EWCA 1214. In that case, which was concerned with the access to confidential, commercial information under s. 15 of the Audit Commission Act 1998, Rix LJ concluded that: (a) he could see no reason why ‘valuable commercial confidential information’ could not amount to a ‘possession’ for the purposes of Article 1 of Protocol 1 of the European Convention of Human Rights (A1/P1) (b) in the circumstances, unrestricted disclosure of such information would amount to an interference with the A1/P1 right to possession enjoyed by the person whose information it was; and (c) such interference would have to be justified if it were not to be unlawful under the ECHR (see §§120-122). In Staffordshire, the Tribunal relied upon Rix LJ’s reasoning to arrive at the following conclusions on the application of the EIR (and FOIA) to confidential, commercial information (§151):
- ‘The disclosure of confidential information by a public body such as the Appellant engages the ECHR rights of the holder of the confidence;
- A statutory right for the public to have access to any information must have an exception read into it to exempt the disclosure of confidential information in order to give effect to those ECHR rights;
- The presumption in favour of disclosure of all environmental information held by public bodies in Regulation 12(2) EIR 2004 must now be read subject to an exception in the case of any such information which is held by the public body subject to a legal duty of confidentiality;
- Where environmental information is held by a public body which is subject to a legal duty of confidentiality there is recognised to be a “strong public interest” in the maintenance of valuable commercial confidential information;
- Arguments can be advanced on the individual circumstances of the case to seek to justify overriding the duty of confidence for particular pieces of information.’
The Tribunal was of the view that the facts of the case were such that there was no justification for overriding the duty of confidence owed to Sibelco in respect of the disputed information.
In light of the Tribunal’s analysis of the implications of Veolia, it is to be expected that human rights arguments will now commonly feature in any appeal involving an application of the EIR or FOIA to confidential, commercial information.
THE FREEDOM OF INFORMATION (TIME FOR COMPLIANCE WITH REQUEST) REGULATIONS 2010
November 24th, 2010 by Rachel KammThese Regulations are made under FOIA and extend the time limit for Academies to respond to requests for information. The normal time limit for responding is twenty working days of date of receipt of the request. However, where the information is requested from an Academy, then any working day which is not a school day for that Academy is disregarded (subject to a long stop of sixty working days). These are the same timeframes as apply to schools covered by The Freedom of Information (Time for Compliance with Request) Regulations 2004 (S.I. 2004/3364) and The Freedom of Information (Time for Compliance with Request) Regulations 2009 (S.I. 2009/1369).
This post is also on 11KBW’s education blog: http://www.education11kbw.com/.
Application of the first data protection principle
November 19th, 2010 by Edward CapewellMs Alison Ince worked in a further education institute in Northern Ireland. She was dismissed from her employment in June 1999 and, from around 2002, had alleged on a number of occasions that her managers had been engaged in a fairly widespread fraud against the public purse in 1997. These allegations were investigated first by the Department for Education and Learning (DEL), and then by the Police Service of Northern Ireland. No criminal or disciplinary charges were brought and the investigation was not taken any further. Ms Ince had also raised the matter with her local MLA, with the chairman of the public accounts committee in Westminster and before an Industrial Tribunal (as they are still called in Northern Ireland). The IT held that there were no grounds for finding that any fraud had been committed.
Ms Ince was not satisfied with this finding. In October 2007 she made a request for information from the DEL with respect to her allegations of fraud at the institute. The information she sought included the transcripts of certain interviews held with other employees during the fraud investigation by the DEL. DEL provided some of the information, but withheld the transcripts pursuant to the personal data exemption in section 40(2) FOIA. The Information Commissioner agreed with DEL’s reliance on the exemption.
The Information Tribunal in Ince v Information Commissioner (EA/2010/0089) agreed – for the most part – with the Commissioner’s decision. Save in respect of one of the transcripts – that belonging to a friend of Ms Ince who gave evidence at a late stage in the hearing in which he consented to disclosure – the Tribunal found that it would not be fair for DEL to disclose the information and that disclosure would therefore breach the first data protection principle. Ms Ince had made four contentions in respect of the information:
(i) That because it related to the individual’s employment for a public sector organisation it related to their public, not private life;
(ii) That no harm or distress would have been caused to the individuals by disclosure of the transcripts;
(iii) That the interviewees’ objections to disclosure were outweighed by other considerations; and
(iv) That the interviewees did not have a reasonable expectation of privacy in respect of the transcripts
The Tribunal disagreed on all counts. As to (i), following the reasoning in Corporate Officer of the House of Commons v IC and Baker it unanimously rejected the notion that anything said or done by a public sector employee was public information and could therefore be disclosed. It found by a majority that “the disputed information in the case related to the individual’s employment but was not information so directly connected with their public role that its disclosure would automatically be fair”. As to (ii), the Tribunal found that harm or distress would be caused by disclosure generally, and would also be caused by Ms Ince’s own ‘disproportionate’ method of pursuing her allegations – which included threatening to bring private prosecutions for fraud against certain individuals. The Tribunal further considered that the Commissioner had given appropriate weight to the interviewees’ clearly expressed objections, and that they also had a reasonable expectation of privacy in respect of the transcripts. There was moreover no common law public interest in disclosure – fraud in the education sector generally was obviously of legitimate concern, but would not be helped by disclosure of the information sought by Ms Ince.
TRIBUNAL ORDERS DISCLOSURE OF 1986 ‘WESTLAND HELICOPTER’ CABINET MINUTES
October 1st, 2010 by Robin HopkinsA number of Tribunal decisions have dealt with requests for minutes of cabinet meetings. Section 35 is inevitably relied upon, and arguments about both collective responsibility and confidentiality ensue.
The most famous concerned the decision to go to war in Iraq, which case saw disclosure being ordered by the Tribunal, but vetoed by Jack Straw.
More recently (Cabinet Office v ICO (EA/2010/ 0031)), the Tribunal has ordered disclosure of the cabinet’s meeting on 9th January 1986, in which Michael Heseltine resigned over the Westland Helicopter decision.
The Tribunal agreed that cabinet minutes are of the highest sensitivity, and should only be disclosed in rare cases “where it involves no apparent threat to the cohesive working of Cabinet government, whether now or in the future”. Relevant factors include: the passage of time, the departure of the relevant ministers from active politics, publication of memoirs and ministerial statements describing the meeting, the issue lacking ongoing significance, the ‘objectivity value’ where publicised accounts conflict, and whether the issue is of “particular political or historical significance”.
The last-mentioned factor was one Jack Straw expressly disagreed with when issuing the certificate of veto mentioned above: in other words, his position was that the more momentous a decision, the greater the need for confidentiality.
Many of these factors were, however, at work in the present case: for example, Margaret Thatcher and Michael Heseltine both made (acrimonious) public statements about the meeting at the time, and the meeting has since surfaced in plenty of memoirs. The outcome was that, whilst section 35 was engaged, the public interest favoured disclosure.
No sign of the incumbent Lord Chancellor, Ken Clarke – who, incidentally, was in the cabinet and present for the 1986 Westland Helicopter meeting – reaching for the veto just yet.
The Tribunal concluded its judgment with stringent criticism of the Cabinet Office’s delay in dealing with this request. The Cabinet Office is one of the 33 authorities on the ICO’s first monitoring list – on which, see my post below.
BLAIR ON FOIA: REGRETS, I’VE HAD A FEW
September 1st, 2010 by Anya ProopsTony Blair has given an interview in today’s Guardian in which he robustly defends (almost) all of his actions as Prime Minister. Notable exceptions include the ban on fox-hunting and, somewhat surprisingly, the Freedom of Information Act. Thus, Martin Kettle of the Guardian reports: ‘Some things about his record in office he does not defend. One is the Freedom of Information Act. “It’s not practical for government,” he says. “If you are trying to take a difficult decision and you’re weighing up the pros and cons, you have frank conversations. Everybody knows this in their walk of life. Whether you are in business – or running a newspaper – there are conversations you want to have preliminary to taking a decision that are frank. And if those conversations then are put out in a published form that afterwards are liable to be highlighted in particular ways, you are going to be very cautious. That’s why it’s not a sensible thing.”’ Query whether the current PM would be prepared to make a similar declaration. You can find the article here.