Freedom of Information

Rupert Earle, Bates Wells & Braithwaite

14 October 2010

Introduction

To whom and what do FOIA and EIR apply

What are the exemptions

How to make a request and challenge a refusal

Some headlines

The Rarer Cancers Forum postcode lottery story http://www.guardian.co.uk/society/2008/aug/11/nhs.health

NSPCC, information on the number of sex offences involving children in England and Wales

http://www.telegraph.co.uk/news/uknews/law-and-order/4283739/20000-sex-offences-against-children-in-one-year-NSPCC-finds.html

Role of FOIA in "climategate" http://www.telegraph.co.uk/earth/environment/climatechange/7088055/University-scientists-in-climategate-row-hid-data.html

Taxpayers Alliance re British Council spending £50,000 on a new font. http://www.taxpayersalliance.com/campaign/2008/06/freedom-of-info.html

Freedom of Information Act 2000 – right of access Who can request information?

any person, motive irrelevant What information is potentially discloseable?

all recorded information held, regardless of age (including pre Jan 2005) Which bodies are obliged to disclose?

public authorities listed in Schedule 1, added by Order, or publicly owned company

includes information held on behalf of the authority some derogations – e.g. for BBC (journalism)

What is the entitlement? to be informed whether the authority holds the information and to have it

communicated within 20 working days (s. 10) (NB: once request finally formulated)

timetable may be extended if public interest test applies bodies have a duty to provide advice and assistance (s. 16)

FOIA – right of access

Disentitlement to information if: Cost of compliance exceeds £600 (24

hours work) or £450 (18 hours) (s. 12 and Fees Regulations 2004). Authority may charge fee instead (s. 13)

Vexatious or repeated requests (s. 14)

Publication schemes (s.17)

FOIA – Exemptions: absolute

s.21: reasonably accessible by other means s.23: supplied by or relates to security service s.32: contained in records of court/tribunal or inquiry/arbitration

Kennedy v Charity Commission (2010) HC: inquiry recordsNB: CPR 5.4

s.34: disclosure would infringe Parliamentary privilege s.40: personal data of applicant, or personal data of another and

disclosure would contravene DPA 1998 principles NB: exemption absolute, but DP principles may be qualified e.g. DPA sch 2(6), processing necessary, not unwarrantedHOC v IC and others (2008) HC: MPs’ ACA claimsDoH v IC and Pro Life Alliance (2009) Tribunal: abortion stats

FOIA – Exemptions: absolute

s.41: obtained from another and disclosure would be actionable breach of confidence Derry City Council v IC (2006) Tribunal: Ryanair agreement

s.44: disclosure prohibited under any enactment, EU obligation, or contempt of court rulesFSA v IC (2009) HC: FSA monitoring, s.348 FSMABritish Union for Abolition of Vivisection v Home Office and IC (2008) CA: licenses, s.24 A(SP)ADOH v IC and Pro Life Alliance (2009) Tribunal: abortion stats

FOIA – Exemptions: qualified

Where, in all circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information (as at date of request)s.22: held with a view to future publication s.24: required to safeguard national securitys.26: disclosure likely to prejudice defence or armed forcess.27: disclosure likely to prejudice UK international relations or interestss.28: disclosure likely to prejudice relations between UK administrationss.29: disclosure likely to prejudice UK economic interests s.30: held (at any time) for criminal investigations

Armstrong v IC and HMRC (2008) Tribunal: export controls trial jury bundle

Metropolitan Police v IC (2008) Tribunal: police informants, c.1900

FOIA – Exemptions: qualified

s.31: disclosure likely to prejudice law enforcement, including prevention or detection of crime, exercise by public authority of functions for ascertaining whether anyone responsible for improper conduct etc

Bucks Free Press v IC (2007) Tribunal: speed camera prosecutions s.33: held by public authority for audit of other public authorities s.35: relates to formulation of government policy (lesser exemption for

statistical and background factual information) DfES v IC and E Standard (2007) Tribunal: school budgets

s.36: disclosure (in reasonable opinion of “qualified person”) likely to prejudice convention of collective responsibility or inhibit free and frank provision of advice/exchange of views, or would otherwise prejudice effective conduct of public affairs

BERR v IC and FOE (2008) Tribunal: CBI lobbyingECGD v IC and Campaign Against Arms Trade (2009) Tribunal:

assessment of Al YamamahDedalus v IC and Arts Council (2010) Tribunal: funding cuts

FOIA – Exemptions – qualified

s.37: communications with Queen and Royal Family, and re honours s.38: disclosure likely to endanger health/safety of any individual

PETA v IC and University of Oxford (2010) Tribunal: animal testing licence details

s.39: disclosure under Environmental Information Regulations 2004 s.42: subject to legal professional privilege

Mersey Tunnel Users Association v IC and Merseytravel (2008) Tribunal: counsel’s opinion on debts

s.43(1): constitutes a trade secret DOH v IC (2008) Tribunal: contract for NHS recruitment website

s.43(2): disclosure likely to prejudice commercial interests John Connor Press Associates v IC (2006) Tribunal : payments to artist

Derry City Council v IC (2006) Tribunal: Ryanair agreement

FOIA – Appeals

Internal reconsideration, reasons (20 working days, ICO Guidance)

Application to Information Commissioner: Decision Notice

Appeal to First Tier Tribunal – rehearing, witness evidence. Decision Notice

Costs: only if party acted unreasonably in bringing, defending or conducting proceedings

Tribunal Procedure (First Tier Tribunal) (General Regulatory Chamber) Rules 2009

Appeal (on point of law only) to Upper Tribunal Costs: usual rules

Environmental Information Regulations 2004 – right of access

Implement EU Directive 2003/4/EC

(1) “Increased access to environmental information and the dissemination of such information contribute to greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision making and, eventually, to a better environment.”

(16) “Disclosure of information should be the general rule… Grounds for refusal should be interpreted in a restrictive way.”

Duty on a public authority which holds environmental information to progressively make it available (r.4) make it available on request (r.5)

EIR – right of access

“public authority” meansFOIA public authoritiesany other body or person that carries out functions of public administrationany body or other person under control of public authority and has public environmental responsibilities/functions

“environmental information” includesstate of environmentfactors/measures likely to affect itcost-benefit and other analysesstate of human health and safety Camden Council (2010) IC: commercial users of waste collection service

EIR: requests

Time limit: 20 w/d unless impracticable (40 w/d)

Reasonable photocopying charge only

Advice and assistance

EIR: exceptions

All qualified, public interest in maintaining exception must outweigh public interest in disclosure r.12.4 - request manifestly unreasonable, material still being compiled, internal communications

ECGD v. FOE (2008) HC : Sakhalin oil and gas project r.12.5 - disclosure would adversely affect:

(a) International relations, defence, national security, public safetyEGCD v ICO and Corner House (2009) Tribunal: Baku-Ceyhan pipeline

(b) course of justiceMersey Tunnel Users Assoc v IC and Halton BC (2010) Tribunal: legal advice

(c) IP rightsOfcom v IC (2010) SC: mobile phone base station location database

(d)-(e) confidentiality, where provided by law*Cornwall Airport (2010) IC: wildlife management tender

Bristol City Council v IC and Portland and Brunswick Squares Association (2010) Tribunal: building viability report (cf Bath and NE Somerset Council v IC (2010) Tribunal)

(f) interests of supplier of information who does not consent* (g) protection of environment** Exception not available for emissions information

r.13 - personal data, applying DPA tests

FOIA – Formulating a letter of request

check publication scheme expert input to focus on what authority likely to

hold if personal data, invite redactions, ask for consent set out public interests in disclosure, why

oversight limited? pseudonyms? jigsaw requests through third parties make personal contact

FOIA – Formulating a request for a review

use Tribunal decisions/ICO guidance set out why prejudice from disclosure

unlikely ECHR, Article 10

Társaság a Szabadságjogokért v. Hungary 2009

“the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the

authorities create obstacles to the gathering of information”

FOIA – delays

backlog Student Loans Company Ltd v IC (2009), Tribunal

“ delays of the magnitude which occurred here seriously undermine the operation of the Act. The right to obtain information that ought to be made public loses much of its usefulness if it cannot be enforced within a reasonable timescale… if public authorities come to expect that a reference to the Commissioner may take several years to be dealt with, they may be tempted to withhold information that ought to be disclosed, in the hope that the requester or the public will have lost interest in the topic by the time it is finally prised out of them, or that any embarrassment that might have been caused by prompt disclosure will be diminished because of the passage of time. Such a situation would be wholly unacceptable.”

Using the information

Copyright infringement, if reproduction of (qualitatively) substantial part Fair dealing for purpose of criticism or

review, providing sufficient acknowledgment (CPDA 1988 s.30)

Fair dealing (other than with photo) for purpose of reporting current events, providing sufficient acknowledgment

Public interest?

FOIA – Information Commissioner powers

Where ICO becomes aware of regular or serious failings he can: give advice and guidance (ICO Enforcement Strategy) give practice recommendations (s. 48) publically name the body involved (ICO Enforcement Strategy) make a special report to parliament (s. 49(2))

Regulatory intervention Enforcement notices (s. 55)

Destruction of requested information outside of normal records management policies, it will be a breach of

the Act to prevent disclosure, criminal offence (s. 77)

Other FOI legislation/routes

Data Protection Act 1998: data subject access requests

Specific regimes for medical data, criminal records, national archives etc.

Audit Commission Act 1998 Veolia v Nottinghamshire CC [2009]

JR pre-action disclosure Parliamentary questions EU Regulation 1049/2001 on Public Access to

European Parliament, Council and Commission Documents

Scotland US Freedom of Information Act

FOIA – the future

The Coalition: our programme for government: “We will extend the scope of the Freedom of Information Act to provide greater transparency”

What might this mean? New bodies: Network Rail, Northern Rock, Carbon Trust,

Energy Saving Trust, NHS Confederation, LGA, Traffic Penalty Tribunals? (Conservatives)

Restrict section 36 exemption to “substantial prejudice”. (Liberals)

End Ministerial veto (Liberals) Allow appeals to Upper Tribunal on points of fact

(Liberals)

FIOA – questions

Rupert Earle

r.earle@bwbllp.com

020 7551 7609