Public Information Rights – key trends and cases

Damien Welfare2-3 Gray’s Inn Square

Broad lines of the IC’s decisions

• Robust decisions in favour of disclosure • Restrictive approach to key exemptions - eg

s 43 and s 41• EIR: being applied broadly• little application of remoteness test to date

The approach of the Tribunal

• Has upheld Commissioner in robust decisions favouring disclosure, and gone further

• Reversed Commissioner’s reasoning over public interest in disclosure of major matter (Guardian and Brooke)

• Disclosure of advice to Ministers (DCLG)• Broader approach to EIR (eg Kirkcaldie)

Govt’s proposals on cost

• Consultation on draft Regs, 14/12/06• May include cost of (a) examining nature or

content, (b) determining whether exemption applies or (c) balance of public interest

• Additional costs threshold and ceiling• Supplementary consultation (to 21/6/07)• Responses invited on principle• Analysis of responses: (late Sept 07)

Cases on key FOI/EIR exemptions

• 1. Policy-making and decisions (ss 35 and 36, FOIA; Reg 12(4)(e), EIR). Series of cases, inc. DFES and DCLG

• 2. Personal data (s 40, FOIA): House of Commons case; IC decisions

• 3. Confidentiality (s 41, FOI): Derry CC

1. Policy making and decisions - s 35

Dept for Educ & Skills (DFES), 19/2/07. Minutes of mtgs 02-03. IC: exemption largely applied. Refining of policy was policy development; also names of officialsIT: Disclosure while policy formulated unlikely to be in PI, normally up to Parl statement. But policy framework had changed by Jan 05 re events in 2003. Need for exemption weakened by passage of time. No inherent damage to decision-making.

Policy making (cont)

• Dept for Work & Pensions (IC), 5/6/06: ID cards feasibility study with sensitive info remove. S35 applied, but PI favoured disclosure. Also OGC, 2/5/07

Administrative decision

• DCLG, 1st June 07 (Vauxhall Tower): EIR. Admin decision; submissions to Minister

• IC: refusal justified before decision taken; thereafter, PI favoured disclosing factual background & questions for consideration

• IT: disclose all, including advice and opinions of officials

Policy-making - s 36

• Guardian & Heather Brooke (IT), 8th Jan 07 (BBC Hutton case)

• Lesser matters may carry a less strong public interest in disclosure than major ones

• IT not persuaded that nothing could be protected if this information disclosed

• Also FCO, 3/5/07: draft of Iraq dossier

Question 1: policy-making and decisions

• How much can a local authority expect to have to disclose under FOI/EIR of a policy or administrative decision -

- while it is being taken?- afterwards?

• What are the public interest considerations?

2. Personal data: s 40

• Corporate Officer of House of Commons (IT), 16/1/07. MPs’ travel by mode.

• First consideration of “fairness” by IT since it acquired jurisdiction for DPA

• 1st DP principle: interests of data subjects not paramount consideration where they are public officials (IT distinguished CNN and Infolink decisions)

• Only limited invasion of privacy in this case

Personal data of senior staff

• Calderdale 16th May 07 (IC); grounds and financial arrangements for early retirement of Director

• City of York, 15th May 07 (IC); circumstances surrounding retirement of Director

• cf Corby case(25th Aug 05) and House of Commons case (above)

Other cases on section 40, FOIA

• Univ. Hosp. B’ham Trust, 22nd Feb 07: gross salaries and average weekly hours exempt. Not comparable with senior public executives

• Medicines & Healthcare Products Reg. Agency, 22nd Jan 07: unfair to disclose names/identifiers of non-public employees

• Calderdale & Huddersfield NHS Trust, 17th Apr 07: disclosure whether doctor on 6 monthly rotation not breach of DPA

S 40, FOIA (cont)

• Gloucs CC, 13th Mar 07: names, addresses and signatures on petition exempt

• BBC, 14th Mar 07: info re ethnic origin of regional council, and notes made re apptment, correctly withheld

• Braintree DC, 3/1/07: disclosure of list of addresses of council properties would not breach 1st or 2nd DP principle

Question 2: personal data of senior staff

• What are the considerations surrounding possible disclosure of the personal data of senior staff?

• Are there limitations on the Corby principle? Were Calderdale and York cases wrongly decided?

• Have those attending had experience of this question?

3. Confidentiality under FOI

• Derry City Council (IT), 11/12/06. Info not “obtained” as required by s 41(1)(a)

• Concluded contract between PA and third party does not fall within FOI confidentiality exemption

• Whole contract may be public unless another exemption applies (eg s 43: commercial prejudice)

• Pre-contract negotiating position: depends on facts• Technical information may still be “obtained” and

thus could be confidential

Other cases on s 41, FOIA

• Newcastle Hospitals NHS Trust , 9th Aug 06: upheld confidentiality of report on clinical practice

• Wolverhampton CC, 28th Sept 06: not all confidentiality clauses protect information

• Tameside, 22nd Jan 07, Herts CC, 1st Feb 07: private equity information to be disclosed

• Oxford CC, 2nd Jan 07: confidentiality clauses in agreement insufficient to demonstrate likelihood of commercial prejudice

Question 3: confidentiality in contracts

• How much information in a contract is “obtained” from other party on confidential basis?

• What steps should authorities take with contractors in preparation for FOI/EIR requests?

Vexatious & repeated requests – s 14, FOIA

• Birmingham CC, 8th Mar 06• W Midlands PTE (“Centro”), 30th Jan 07: fifteen

requests in 10.5 months• Metropolitan Police, 22nd Mar 07: may take pre-

FOI requests into account as repeated requests (s 14(2)).

• BBC, 19th Mar 07: requests had effect of harassing or were obsessive. (Appeal to IT)

• NB. May be applicable under Reg 12(4)(b), EIR

Legal professional privilege – s 42

• Legal Secretariat to the Law Officers, 22nd May 06 (info relating to Iraq war advice). Balance of PI did not require disclosure of info revealing legal risks or reservations.

• It did require disclosure of info leading to concluded views of AG which Govt had revealed (unless exempt on security grounds).

• Forest Heath DC, 2nd Apr 07: no exemption for where legal advice not obtained directly, but exempt if shared in confidence. (Appeal to IT).

Other developments

• FOI Publication schemes – revisions now due for approval, Dec 08

• “Data Protection Technical Guidance: determining what is Personal data”, (Info Commissioner, Aug 07). Clear and helpful guidance, replacing guidance following Durant case.