Public Information Rights key trends and cases

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Public Information Rights key trends and cases

• Damien Welfare
• 2-3 Grays Inn Square

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Broad lines of the ICs 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

3
The approach of the Tribunal

• Has upheld Commissioner in robust decisions
  favouring disclosure, and gone further
• Reversed Commissioners reasoning over public
  interest in disclosure of major matter (Guardian
  and Brooke)
• Disclosure of advice to Ministers (DCLG)
• Broader approach to EIR (eg Kirkcaldie)

4
Govts 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)

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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

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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
  officials
• IT 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.

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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

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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

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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

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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?

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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

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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)

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Other cases on section 40, FOIA

• Univ. Hosp. Bham 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

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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

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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?

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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

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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

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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?

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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

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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).

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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.