Tag: Freedom of Information

What is “information” under FOI?

canstockphoto0925773Section 1 of the Freedom of Information 2000 (FOI) contains the general right of access to information held by public authorities. But what exactly is “information”? Section 84 defines information as “information recorded in any form.” This includes information held on paper, computer, video, audiotapes as well as that contained in manuscript notes. FOI does not give access to information that is known to the public authority but is not available in some recorded form (see Ingle v Information Commissioner (EA/2007/0023) ).

Mere marks made on documents are also information according to an Information Tribunal decision from 2009 (O Connell v the Information Commissioner and Crown Prosecution Service (EA/2009/0010)). Here the Tribunal considered access to manuscript notes made by a defence barrister, during a criminal trial, on his client’s typed police interview record. The Information Commissioner’s view was that some of the notes, which consisted of asterisks and underlining of words on a document, were not information for the purposes of FOI.

The Tribunal rejected this submission. In its view, however tenuous and potentially misleading the material sought may be, it still constituted information; even if it was only information to the effect that certain marks had been made on certain sheets of paper held by the public authority. The Tribunal did however rule that the requested information was sensitive personal data, disclosure of which would breach the Data Protection Principles. Consequently it was exempt under section 40(2) being third party personal data.

It is an oft-repeated phrase that FOI provides a right of access to information rather than documents. However, a request for a copy of a document will generally be a valid request for all of the information contained within that document (including visual format, design, layout etc). In considering whether the public authority has complied with the request, the question is whether all of the information recorded in the document has been provided. It will not be sufficient to rephrase the document or provide an outline or summary of its contents unless the applicant has specifically expressed a preference for a digest or summary under section 11(1)(c).

In April 2013 the First Tier Tribunal (Information Rights), ruled that images of MPs’ expense claim receipts was information to which the FOI applied (IPSA v Information Commissioner (EA/2012/0242)). The background to the request was that, following the MPs’ expenses scandal, the then newly-formed Independent Parliamentary Standards Authority (IPSA), decided that it would not routinely publish images of the receipts submitted to IPSA by MPs in support of their expenses claims.  Only text transcribed from the submitted receipts would be published.

A journalist made an FOI request for the actual receipts submitted by a number of MPs. The question arose as to whether images of those receipts held by IPSA contained “information” within the meaning of section 1 of FOI, which was not captured by the transcription process favoured by IPSA. The Tribunal concluded that the definition of information (in this case) included logos, letterheads, handwriting, manuscript comments, and even the layout and style of the requested documents. These were not disclosed to the requestor as a result of providing a transcription, rather than a copy, of the relevant receipts.

The Upper Tribunal’s appeal decision in this case, has now put the matter beyond doubt. In Independent Parliamentary Standards Authority v IC & Leapman [2014] UKUT 33 (AAC) Judge Williams dismissed the appeal by IPSA. At Paragraph 22 of the judgement he said:

“It is to me also trite to note that the wording on a typical receipt or invoice is only part of what a recipient sees when looking at it. Typically there will be verbal and numerical content to be read and understood, but there will also be visual content to be seen, rather than read, but which may also require to be understood for the recipient to have appreciated the whole of the experience, if I may term it that, communicated by the receipt or invoice.”

In the judge’s view information is more than just the words and figures on a piece of paper. Sometimes the nature of the request will mean that the only way to convey all the information on a document is to disclose the original or at least a copy. He gave the example of Land Registry plans, drawings and photographic evidence of a particular building.

In coming to his decision the judge took note of the Scottish Court of Session decision in Glasgow CC v SIC [2009] CSIH 73 under the Freedom of Information (Scotland) Act 2002 (FOISA). As a general point of principle, the Commissioner and the Tribunal is not bound by Court of Session decisions on FOISA, although they may be considered persuasive where the terms of FOISA mirror the terms of FOI. In the Scottish case the applicant specifically wanted the public authority to provide copies of the documents, although he acknowledged that the same information was available elsewhere. The Court confirmed that FOISA entitles requesters to the information within a document, rather than a copy of the document itself. To the extent that this request was specifically for copies of the documents over and above the information they contained, it was invalid. The Court rejected an argument that the copy documents were “information” distinct from the information contained within them.

The Court stated at paragraph 45 of the judgment:

“Where the request does not describe the information requested… but refers to a document which may contain the relevant information, it may nonetheless be reasonably clear in the circumstances that it is the information recorded in the document that is relevant.”

However paragraph 48 should be noted:

“The difference between the original and a copy… does not consist in any difference between the information recorded in each document: that information, if the copy is true and accurate, will be identical.” (my emphasis)

In the IPSA case, the judge ruled that transcriptions of the requested receipts would not be “true and accurate”, as they would not contain all the same information as on the originals e.g. logos, style, layout etc.

If you want to know more on the Scottish case, read the briefing note published by the Scottish Information Commissioner. The basic principles (and these apply equally to FOI requests) are:

  • The Freedom of Information (Scotland) Act 2002 (FOISA) provides a right of access to information and not a right of access to copies of specific documents.
  • Authorities should not automatically refuse requests for copies of documents, as long as it is reasonably clear from the request that it is the information recorded in the document that the applicant wants.
  • Requesting a document (e.g. a report, a minute or a contract) is a commonplace way to describe information. Where it is reasonably clear that a request is for the information contained in a document, the authority should respond to the request as one properly made under FOISA.
  • If a request is for a document, but it is not reasonably clear what information is being requested, the authority should contact the applicant to seek clarification.

These are interesting decisions especially for those public authorities who often insist, when refusing to supply actual documents (such as minutes of meetings) that FOI is about access to information not documents. Sometimes the requestor is interested in the document, which contains the requested information, as it will give a further insight into its background and the thoughts/observations of the producers/subjects of the document.

Finally to quote one of our FOI trainers (Philip Bradshaw):

“Much will also in practice depend on the wording of the request. Contrast “How much did you spend on pencils?” with “Can I have a copy of your pencil invoices”. You can clearly provide in permanent form all the recorded information within scope of the first request without copies, but not perhaps for the second.”

Ibrahim Hasan will be discussing this and other recent FOI decisions in the FOI Update workshops which are delivered in online sessions as well as face to face.

Freedom of Information Caselaw Roundup

FOI3The Freedom of Information Act 2000 (FOI) applies to information held by a public authority or held on its behalf by another person (Section 3(2)). What of information about people working for a public authority but who are legally employed by a third party?

This question arose recently in an appeal to the First Tier Tribunal (Information Rights) (FTT). In Hackett v Information Commissioner (EA/2012/0265), the  (ULT), an education charity running 21 Academy schools, was asked for, amongst other things, details of senior staff members’ pay, pension contributions, other remuneration and expenses.  The request was refused on the basis that the information was not held by ULT, but by the United Church School Trust (UCST) who employed the staff and who, as a non-publicly funded charity, is not subject to FOI.

The appellant argued that the corporate structure of ULT and UCST was an accounting process set up to avoid disclosure of the requested information which was about the spending of public money. In addition he submitted that both companies were subsidiaries of the United Church Schools Company and as such were, in effect, both part of one company.

The FTT upheld the decision of the Information Commissioner that the information was not held by ULT, but by UCST, and so not subject to FOI.  It took account of the fact that the corporate structure had been urged on ULT by the Department for Education, the two charities had maintained a complete corporate separation and that the service agreement between ULT and UCST expressly referred to the senior staff being employed by UCST. Could this decision mean that more public bodies will adopt innovative structures to avoid public scrutiny of their finances?

The section 40 exemption applies to personal data disclosure of which would breach one of the Data Protection Principles. This usually involves considering whether disclosure would be fair and lawful under Principle 1. Not all personal data will be exempt from disclosure. Sometimes there is a legitimate interest in the public knowing some personal data.

In Innes v Information Commissioner (EA/2013/0044) the FTT ruled that the reasons for a head teacher’s long-term sickness absence from his school did not have to be disclosed as they constituted personal data, but whether the head teacher was being paid a salary during his absence should be disclosed. As head teacher, the individual in question occupied a senior position of responsibility at the school. He was no longer performing an active function at the school and whether or not he was being paid from public funds during the period of absence and inactivity is a legitimate matter of public interest and one which outweighs his right to privacy.

Personal Data under section 40 has the same meaning as in Section 1 of the Data Protection Act i.e. it has to be information, which relates to a living identifiable individual. The requested information does not always have to include a name. Even job title information can be personal data according to the FTT decision in London Borough of Barnet v Information Commissioner and another (EA/2012/0261). Here the requestor wanted the job titles of council employees who had attended a meeting at a solicitor’s firm in respect of a major council outsourcing project. Referring to a Supreme Court decision (South Lanarkshire Council v The Scottish Information Commissioner [2013] UKSC 55), the FTT ruled that disclosing details of a job title held by more than one local authority official could constitute processing personal data if there was a chance of those individuals being identified. The test was whether the subjects could be identified, not just by an ordinary member of the public but, by a “motivated intruder” (including the requestor himself with all the other information at his disposal).

Continuing on the same theme, in Yiannis Voyias v Information Commissioner (EA/2013/0003), the FTT held that the London Borough of Camden was correct to refuse to disclose the number of hours its employees worked and how much overtime they were paid. It was satisfied that disclosure of this information would lead to the identification of individuals and would be unfair. Therefore section 40 applied.

Personal data in Building Regulations applications held by councils is not exempt under section 40 just because it relates to another person’s property. In James Henderson v IC EA/2013/0055), the appellant’s neighbour was carrying out renovations on the other side of their shared wall. This resulted in cracks on his side of the wall, followed by a steel beam coming through the wall. He asked Brentwood Council for details of the works, as a Building Control application had been made to them.

The FTT held that full details of a Building Regulations application was personal data; but disclosing this information would not contravene the First Data Protection Principle. Therefore, the exemption set out in section 40(2) did not apply and the information was ordered to be disclosed. The FTT disagreed with the Commissioner, who held that the data subject would have had a reasonable expectation of privacy in relation to the information. In doing so the FTT took account of the fact that (a) before starting any work the data subject was obliged to make a formal application to the local authority which meant that the property and the work would be subject to inspections by their officers, (b) the property was to be rented out rather than lived in by him; and (c) the work had a direct effect on his neighbour’s property.

The Freedom of Information (Scotland) Act 2002 has a specific exemption to cover a deceased person’s health record. There is no such exemption in the 2000 Act. Sometimes the section 41 exemption (Breach of Confidence) can be claimed.

Two recent Tribunal decisions again emphasise the importance of checking whether the requestor is the deceased’s appointed personal representative. In Webber v IC and Nottinghamshire Healthcare NHS Trust (GIA/4090/2012), the appellant had made an FOI request for information (including hospital records) about the death of her son in 1999. The Commissioner and the FTT upheld the decision to refuse on section 41 grounds. The Upper Tribunal also dismissed the appeal. It ruled that disclosure would entail a Breach of Confidence which was actionable after the patient’s death. The appellant was not the personal representative of the deceased even though she could have applied to become so.

The Upper Tribunal also found that there would not have been a public interest defence to the Breach of Confidence. It gave weight to the fact that some of the information sought would or could come into the public domain or be obtained in another way: a coroners’ inquest, or through an application under the Access to Health Records Act 1990. This allows for requests for access to information to be made by, amongst others, the patients’ personal representative.

When considering disclosure of a deceased person’s information, consideration has to be given to any wishes expressed by the deceased before their death. In Trott and Skinner v Information Commissioner (EA/2012/0195) (March 2013) the appellants requested information relating to the care records of their deceased sister. East Sussex County Council confirmed that it held a relevant care file but refused to disclose it on the basis that it was provided in confidence. The FTT and the Commissioner were satisfied that the section 41 exemption was engaged. The requested information was confidential, disclosure of which would be a Breach of Confidence. Amongst other things it took account of the fact that the deceased was given the opportunity to indicate (in her home care agreement) that she agreed to let the Council “share personal information on care with family members/friends listed below.” She did not sign her agreement or list anybody in the space provided. The Tribunal also heard that on several occasions she was given specific assurances that her information would be kept confidential.

Furthermore the FTT was satisfied that the Breach of Confidence would be actionable. This was despite the fact that the sisters were the next of kin of the deceased. They were not the personal representatives of the deceased though. Neither the council nor the Commissioner had enquired as to who was. On further inquiry by the Tribunal, it was discovered that there was a will and therefore an Executor who has standing to act as the deceased’s personal representative. There was no evidence of consent for disclosure under FOI from this Executor. Therefore section 41 was engaged and there was no public interest defence to the disclosure.

Give your career a boost in 2014 by gaining an internationally recognised qualification in FOI. Keep up to date with all the latest FOI decisions in 2014 by attending our FOI Update workshops.

Section 36 of FOI: An Appellant’s Perspective

Norman Baird writes:FOI4

The University of London International Programmes offers an LLB degree by distance learning. It is studied by thousands of students worldwide. With such a large number of students, the University relies on a large number of lecturers from a variety of universities to mark the exam scripts. The University provides some academic support – in the form of written guides and recorded lectures – but relies on private institutions to provide face-to-face tuition. I am Academic Director of one such institution. I made an FOI request for the marking guidelines issued to the markers.

My request was declined. The University relied on S.36(2)(c) which is engaged if, in the reasonable opinion of the Qualified Person(QP), disclosure would or would be likely to prejudice the effective conduct of public affairs. If it is engaged it is then subject to a public interest test. The University stated that :

“disclosing the marking guidelines, in this case and as a precedent, would fundamentally affect one of the University’s core functions, that of robust exam assessment”.

And this opinion was arrived at on the basis of three subsidiary claims of particular harms. These are, somewhat confusingly, also described in terms of prejudices.

First, the University contended that “the disclosure of the marking guidelines… would be likely to prejudice the effective operation of the University’s examiners in preparing the most robust and effective guidelines…”

Second, that “disclosure of the marking guidelines would be likely to prejudice the actions and efforts of students, who may try to adapt their essay answers to marking guidelines developed at examiner level for examiners, resulting in mistakes in comprehension and lower attainment scores.”

Third, the University maintained that “disclosure would be likely to prejudice the nature of the guidelines, where a requirement to establish a process to publish marking guidelines will transform them from useful internal assessment tools to just another external facing study aid, of which a wide range of provision already exists.”

The Information Commissioner found in favour of the University and so I appealed to the First Tier Tribunal (Information Rights) on the grounds that the opinion was neither reasonable in substance nor reasonably arrived at. In addition, I contended that the public interest in favour of disclosure outweighed the arguments against. But in the limited space here I only want to look at a couple of my submissions.

My first ground was that the Qualified Person, Vice-Chancellor (V-C) Professor Geoffrey Crossick, had not expressed an opinion as required by the section. This had been added to my grounds of appeal at a late stage as it was only when the University responded to my initial appeal that I first saw the ‘opinion’ signed by the Qualified Person. He had been provided with an ‘evidence pack’ in which he was advised that, in the opinion of the International Academy of the University, disclosure would be prejudicial. He had written:

“I have now reviewed the evidence with respect to the FOI request asking for… the marking guidelines. It is my conclusion that the opinion – that disclosing the marking guidelines, in this case and as a precedent, would fundamentally affect one of the University’s core functions, that of robust exam assessment – is reasonable in substance.

I confirm that, in my capacity as qualified person, that this exemption is engaged with respect to the request for marking guidelines.”

He states that the opinion (of the International Academy) that disclosure would be prejudicial was a reasonable one. Now, it is clear that one person may recognise another’s opinion as reasonable without sharing that opinion. The section requires the QP to express his opinion that prejudice would or would be likely to be caused. The V-C did not do so.

And it is not possible to conclude from his final sentence that he believed that prejudice would result. He appears to have formed the view that, provided he thought the opinion was reasonable, the section was engaged. In effect, he expressed himself in terms consistent with the role of the Information Commissioner and not that required of a Qualified Person.

It is notable that the V-C was not consulted again at the internal review stage and there was no other evidence that, in his opinion, disclosure would be prejudicial. In addition, the advice given in the evidence pack with which the V-C had been provided the advice was ambiguous. Although S.36(2)(c) was reproduced, the V-C had been advised that the University’s opinion was that disclosure would be prejudicial and that he was required to ‘authorise’ the exemption.

My second ground of appeal was that the ‘opinion’ was not reasonably arrived at. There were a number of limbs to this submission including the fact that the subsidiary claims were unsupported by evidence, were barely comprehensible and there was no evidence that anyone involved in making the decision or advising the V-C had actually read the documents.

But I would like to focus on one submission as it appears to me to be central to the way in which the ‘opinion’ and the Decision Notice (DN) should be approached. It is well established that although the opinion need only be a reasonable opinion and not the most reasonable it must be ‘rational’, ‘not illogical’, ‘not arbitrary’. I submitted that there was a lack of logical coherence between the opinion and the subsidiary harms upon which it rests.

The ‘opinion’ was that disclosure would prejudice robust exam assessment. The subsidiary claims, however, are expressed in terms of likely effects. To conclude that prejudice to the assessment system would occur because prejudice to students and examiners is likely is as illogical and irrational as concluding that consumption of a drug would be fatal on the grounds that it is likely to induce a fatal heart attack and/or terminal cancer.

The response to this argument by the Information Commissioner was that although the University and the Decision Notice had claimed throughout that disclosure ‘would’ cause prejudice the overall tenor of the opinion and the DN was that the ‘would be likely’ limb was being relied on. In effect, the IC is saying that although he said one thing he meant another. As I argued at the Tribunal, if the opinion is to be read so that it is consistent with the subsidiary claims it is impossible for a requester to argue that the opinion and the subsidiary claims are incoherent.

The section is a powerful one for a Public Authority. It has been described as a ‘get out of jail free card’ and so it is submitted that it ought to be construed narrowly and applied strictly. It is not particularly difficult to express the opinion correctly. And although the Decision Notice is not to be read as though it is a judgment of the Court of Appeal, a requester who appeals is at a great disadvantage if all its inconsistencies are smoothed over to ensure the appearance of logical consistency and coherence.

It has been said (and was repeated at the Tribunal) that a requester will find it difficult to establish that an opinion was not ‘ a reasonable opinion reasonably arrived’. That will certainly be true if an opinion can be found when none was expressed and if the central requirements of reasonableness – rationality and logical coherence – are ignored or fudged.

I look forward to reading the opinion of the Tribunal but I am not optimistic.

Norman Baird has been lecturing on Criminal Law and Jurisprudence for approximately 30 years and runs law courses in London and abroad. He also publishes a blog: www.llblondon.com

Ibrahim Hasan will be discussing this and other recent FOI decisions in our FOI Update workshops in 2014.

Do you want an international recognised qualification in FOI? The BCS/ISEB Certificate in Freedom of Information starts in March 2014 in London and Manchester.

@FOIManUK on Records management – Just Do It!

RM3At the 2012 Information and Records Management Society (IRMS) Conference, Northumbria University academic Julie McLeod asked the audience a simple question. She asked how many of those present worked for an organisation that had articulated a vision for electronic records management. Less than 10% of the audience raised their hands.

On first sight, that’s a pretty startling statistic. The IRMS is the main industry body for records managers. If anyone could be expected to have articulated a vision for electronic records management, it was the people in that room.

But the truth is, I’m not that surprised by Julie’s experience.

Firstly, I think it’s partly to do with what Julie asked. If she’d asked whether those present had a records management policy, I suspect a much bigger proportion would have put their hands up. And many records management policies probably include a statement saying how the organisation aspires to manage electronic records. That’s a vision – but those present probably didn’t think of it as such.

But what about those who just don’t have any statement? I suspect a lot of people in that room didn’t have anything – no policy, no strategy, no vision. And I think I know why.

The people responsible for records management in a lot of organisations are nervous of getting it wrong. And all the talk of visions, strategies and programmes isn’t helping. All the competing theories and evolving attitudes are hard to keep up with. 10 years ago, public bodies were being encouraged to adopt electronic document and records management systems. Now it’s rare to hear a success story about such systems, and hardly anyone thinks they’re a good idea. How do you come up with a vision for the future operation of your organisation when the future keeps changing?

What’s more, in most organisations, the person responsible for records management may be relatively junior. Often they will be someone who was drafted into the role; it might only be part of their job.

But it is important that records management is addressed. Any business needs to manage its information. Back at the start of my career I worked for a pharmaceutical company. Our records management unit ensured that they were able to prove that they discovered their marketed drugs first – some of those records were worth billions to the business.

And it is necessary for compliance with legislation. For example, if you look at many civil monetary penalties issued by the Information Commissioner’s Office, you will find that poor records management played a part.

And public authorities of course are subject to the Freedom of Information Act. Section 46 of the Act requires the Lord Chancellor to issue a Code of Practice on the management of records. The Code of Practice was written by the National Archives and sets out the features that they expect to see in public authorities’ records management.Whilst not a statutory requirement, the Information Commissioner is unlikely to look kindly on a public authority that fails to meet its FOI obligations due to records management failings. Indeed he has been known to issue a practice recommendation to an authority insisting that they improve their records management.

So organisations – especially public sector ones – need to do something about records management. But what?

We can start by using the Code of Practice as a guide. What do the experts at the National Archives think should be in place?

And we can stop letting “the best be the enemy of the good”. Julie McLeod’s straw poll, as well as the more detailed research she was reporting on at the conference showed that many organisations had done very little. What actually needs to happen is something. We should improve records management one step at a time. We must be pragmatic.

That’s what I’m going to attempt to do in my new course for Act Now Training on Records Management and the Section 46 Code of Practice. I’ll explain the different requirements of the Code and practical things you can do to meet them. That’s obvious. But I’ll also tell you not to panic. Don’t try to do it all at once. What are the key things you can do that will improve your records management almost overnight? You will leave with an action plan for your organisation – so you’ll instantly be ahead of 90% of those conference delegates I mentioned. The key words are “Just Do It.”

Paul Gibbons (aka FOIMan) blogs at http://www.foiman.com. He also delivers our Practical FOI course.

Playground Duty

Teaching? A mugs game. The (mythical) long holidays, the (mythical) 3-30 finish, the (mythical) relaxed and friendly environment as you helped the enthusiastic next generation prepare for adult life…

Playground duty was the bane of my life when I was a teacher. Once a week you had to forgo the 15 minutes of peace in the staff room and that warm cup of coffee and patrol the school playground, breaking up fights, solving Rubik’s cubes and avoid being caught by those awful children’s jokes (If a bottle of medicine cures a cough what does half a bottle of medicine cure?).

So on a recent training session for schools in a northern council we talked to the delegates – mostly Headteachers – about the Publication scheme. We looked at the definition document listing the material the ICO recommended schools to pro-actively publish, we gave them the two common sense Act Now solutions (1. find all the relevant documents and put a paper copy of them in a ring binder in the school office then photocopy on demand or 2. turn them into PDFs and put them on the website so people can download what they want).

After considering all this and thinking for a moment or two one of the delegates (a headteacher no less) said  ” I don’t think we’ll bother with this. It’d take too long.”

What’s the punishment for forgetting to do playground duty?

Opprobium, embarrassment,  ridicule, double duty next week.

What’s the punishment for failing to carry out a duty under section 19 of the Freedom of Information Act for seven and a half years?

Over to you….

(The answer is 50% of a cough. Whatever you do don’t say half a cough).

FOI: Latest decisions and developments

FOI6

One of the key recommendations of the House of Commons Justice Select Committee in its July 2012 report on the Freedom of Information Act 2000 (FoI) was the introduction of a new exemption for academic research. The government accepted this recommendation in its official response late last year.

Clause 19 of the Intellectual Property Bill, currently proceeding through parliament, inserts this new exemption (section 22A) into FoI. Subsection 1(a) of clause 19 provides that information is exempt from disclosure if it relates to information obtained in the course of, or derived from, a programme of continuing research that is intended for future publication. Subsection (1)(b), however, provides that the information will be exempt only if disclosure would, or would be likely to, prejudice a matter listed in that subsection. The exemption will be a qualified one and so subject to the public interest test. Public authorities will not be required to confirm or deny that they hold section 22A information if, or to the extent that, compliance would, or would be likely to prejudice, any of the matters mentioned in subsection (1)(b).

What is information?

Section 84 of FoI defines information as ‘information recorded in any form’. This includes information held on paper, computer, video, audiotapes, as well as that contained in manuscript notes. Marks made on documents are also covered, according to an Information Tribunal decision from 2009 (O’Connell v the Information Commissioner and Crown Prosecution Service (EA/2009/0010)).

In the light of the above decision, it should come as no surprise that, in April this year the First-Tier Tribunal (Information Rights) ruled that images of MPs’ expense claim receipts comprised information to which the act applied (IPSA v Information Commissioner (EA/2012/0242)). The background to the request is that, following the MPs’ expenses scandal, the then newly formed Independent Parliamentary Standards Authority (IPSA) decided that it would not routinely publish images of the receipts submitted to IPSA by MPs in support of their expenses claims. Only text transcribed from the submitted receipts was to be published.

A journalist made an FoI request for the actual receipts submitted by a number of MPs. The question arose as to whether images of those receipts held by IPSA contained ‘information’ within the meaning of section 1 of FoI, which was not captured by the transcription process favoured by IPSA. The tribunal concluded that the definition of information (in this case) included logos, letterheads, ‘handwriting/manuscript comments’, and ‘the layout and style/design of the requested documents’ – each of which were not disclosed to the requester as a result of providing a transcription, rather than a copy, of the relevant receipts.

This is an interesting decision, especially for those public authorities which often insist, when refusing to supply actual documents (such as minutes of meetings) that FoI is about access to information not documents. Sometimes the requester is interested in the document which contains the requested information, as it will give a further insight into its background and the thoughts/observations of the producers/subjects of the document.

Vexatious requests

Until February 2013, there was no binding authority on the meaning of vexatious under section 14(1) of FoI, or manifestly unreasonable under regulation 12(4)(b) of the Environmental Information Regulations. In three distinct but related decisions, the Upper Tribunal has tried to plug this gap. The cases are Dransfield v IC(2012) UKUT 440 AAC, Craven v IC (2012) UKUT 442 AAC, and Ainslie v IC (2012) UKUT 441 AAC. According to Judge Wikeley, the appropriate question is: ‘Is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FoI?’

The Information Commissioner’s Office (ICO) has now produced detailed guidance based on these key decisions. The guidance sets out a new list of 13 indicators (replacing the previous five) of a vexatious request: abusive or aggressive language; burden on the authority; personal grudges; unreasonable persistence; unfounded accusations; intransigence; frequent or overlapping requests; deliberate intention to cause annoyance; scattergun approach; disproportionate effort; no obvious intent to obtain information; futile requests; frivolous requests.

The ICO emphasises that these are meant as a guide only and are not an exhaustive list. The guidance also addresses topics which are very familiar to FoI officers, including round robins, fishing expeditions and requesters acting in concert or in pursuance of a campaign.

Legal privilege

The section 42 exemption (legal professional privilege) is often relied upon by public authorities when refusing to disclose legal advice. Not all advice given by a legal professional will attract this exemption though. It is important to ascertain who the advice was given by and what their role is within the public authority.

In February, the Information Commissioner ordered Cambridgeshire County Council (Ref: FS50457339) to disclose advice given by a chartered legal executive employed in its trading standards department to a company involved in a dispute. The commissioner concluded that the requested information did not attract legal professional privilege and was therefore not exempt from disclosure under section 42. He said: ‘The information must be communicated in a professional capacity, ie by a legal professional retained to provide legal services to their client. Consequently not all communications from a professional legal adviser will attract advice privilege.’

The communication in question needed to have been made for the principal or dominant purpose of seeking or giving legal advice. In the present case, the adviser was employed by the council as an adviser with expert legal knowledge to assist in providing advice and assistance to third parties on the council’s interpretation of trading standards legislation. This did not mean that he was employed as a professional legal adviser, funded by the council, to provide legal advice to third-party clients such as the company in question.

Also the commissioner did not believe that it could be said that the company in question had retained the services of the adviser in a professional capacity so that he could provide them with legal advice. Rather, the company appeared simply to have made use of the council’s trading standards advice service and was provided with advice, albeit by someone with a legal qualification. This advice did not attract legal professional privilege and so section 42 was not engaged.

This article first appeared in the Law Society Gazette: http://www.lawgazette.co.uk/

Ibrahim Hasan will be discussing these and other recent FOI decisions in the FOI Update workshops  in the Autumn

Do you want an international recognised qualification in FOI?

The BCS (ISEB)  Certificate in Freedom of Information  is the qualification of choice for FOI professionals. Try the test here:

Disclosure of Staff Names in FOI Refusals

canstockphoto0164766This is an FOI decision from the Information Commissioner that I have planned to blog about for some time, but have now only just got round to blogging about it.  On 11 March 2013 the ICO issued decision notice FS50468600 which involved the Department for Work and Pensions (DWP).  The content of the decision notice is not all that important until we turn to paragraphs 32-36, which are headed up as “other matters”.

In particular paragraph 35 is of note in which it states that his office experienced difficulty in actually speaking to those who were involved in the request at the DWP’s side of things.  It described the DWP’s practice of not providing telephone numbers or contact details within its responses and how this makes it very difficult for the appropriate contact to be located within the organisation.  The public authority advised the Commissioner that it did not include these details so as not to breach the privacy of the non-senior staff involved; it described the staff in question as not being in public-facing roles.

In Paragraph 36 of the decision notice the Commissioner states quite clearly that he does not agree with this approach.  The decision notice states that “if such staff are responding to requests made under the FOIA then he considers this to be a public-facing role which is unlikely to attract an expectation of privacy” (Paragraph 36).

The DWP are by no means the only public authority which has adopted similar processes in respect of FOI requests.  I can remember one time trying to get hold of a central Government department (I can’t remember exactly which one, but I have a feeling it was either the Home Office or a connected public authority) to discuss a response that had been issued by them (something that merely wasn’t very clear and, as it later transpired wasn’t in need of an internal review). However, there was no contact details provided for the individual.  I was informed that the FOI team were not public-facing and they wouldn’t speak to members of the public over the telephone.

It was very frustrating and actually resulted in a higher cost to the public authority in my case.  There was just one thing that I wasn’t clear about and I’m sure that had I been able to have a quick telephone conversation with the person who issued the decision then there would have been no need for them to conduct an internal review.  However, the Authority’s attitude and processes meant my only option to get the clarification was to request an internal review.  This will have then required a senior member of staff within the authority to review the entire handling of the request and issue a response to me; far more expensive than 5 minutes on the phone explaining something to the applicant.

Not publishing contact details for those responsible for FOI within the organisation also makes seeking advice and assistance from the public authority almost impossible.  My reading of the Act suggests to me that advice and assistance is not only something to be provided in a refusal notice, but something that should be available to prospective applicants.  I know that I’ve certainly phoned up a public authority and had a chat with them about a request before making it; as a consequence I have been able to frame my request in a way that has made it a much more efficient process for the public authority (and thereby reducing the cost to the taxpayer).  The FOI Officer, knowing the structure of their organisation and how information is generally held, was able to advise as to what information they were likely to hold and how it was likely to be held.

I tend to agree with the commissioner that anyone sending a response out to a FOI request is clearly public-facing; it might be that a particular role was not public facing pre-FOI, but in these post-FOI days anyone could, in theory, be a public-facing member of an authority’s staff.  It should be easy for applicants to contact public authorities, not least because the public authority is obliged to provide advice and assistance, but it can just save public authorities money.  It can help ensure more focused FOIs that are easier to deal with and can prevent expensive internal review requests (or perhaps even more expensive ICO investigations).(Ed – See also Ibrahim Hasan’s blog post on disclosure of staff names under FOI)

Hopefully the ICO’s criticisms of this approach in this decision notice will feed their way round any other public authorities who still adopt a practice of not giving out contact details for someone able to provide advice and assistance.

Alistair Sloan is a 4th year LLB student in Scotland, blogger (http://scotslaw.wordpress.com/about-2/) and FOI proponent. Follow him on Twitter (http://www.sloansonline.me.uk/) 

Ibrahim Hasan will be discussing this and other recent FOI decisions in the FOI Update workshop  on 3rd June 2012 in London.

Do you want an international recognised qualification in FOI?

The ISEB Certificate in Freedom of Information  starts in Manchester and London in June.

The £200 taxi and the 4 inch fish.

It was December. I’d spent a day training in Edinburgh and the following day was doing a morning in Reading. Bad planning I know but all I had to do was take a train from Edinburgh to London then on to Reading and I’d make the hotel in time for a pizza and a beer. I’d booked in advance and found a first class advance ticket from Edi to Lon for just £31. I was looking forward to a pleasant journey and maybe a quality snack or two.

Things started badly. There was flooding in the air. I know it’s usually on the ground but we live in interesting times.

taxi

The booked train was cancelled. I took the following one and settled down to a slightly delayed journey but ultimately a stuffed crust and a kronenbourg. Then we arrived at Darlington. The floods meant that we had to sit still for 3 hours. It wasn’t much fun. The relief train crew from Newcastle, contrary to all expectations, had forgotten to load the pies so first class refreshments were down to cans of speckled hen and Dolmen peanuts. They were free which did ease the pain.

Further delays as we were re routed meant a very late arrival in London. As the clock ticked round to midnight I started to get worried. Tubes would stop; most busses would stop; I suppose there would be taxis but would Paddington be open this late…

Out of the blue at 0115 in the morning as we crawled though north London an announcement came over the tannoy. “Passengers needing assistance for their onward journey should contact East Coast staff at Kings Cross who would help with taxis.”

Wow…

I walked through the train to get to coach M so I was first off and strode boldly up to an East Coastie.

“Where are you going to sir?”

“Reading”

“Follow me sir”

Minutes later I was in a large taxi with 5 other fellow travellers sliding westwards through slick rain covered streets. My companions were  going to Ealing, Heathrow and other points west but I was the Marathon man so I snickered silently to myself.

Eventually at 3am we arrived at my hotel. For the last 30 minutes I chatted to the driver and he set out a wonderful life enjoyed by London mini cab drivers on the evenings when trains were delayed. They knew from experience and watching the media when the pickings would be rich. When they arrived at the terminus they would have no idea where they would end up but they knew it was a large guaranteed fare.

My driver said he’d done Kings Cross to Portsmouth; Victoria to Leeds, Kings Cross to Bath. The best nights were when Eurostar was delayed. He’d once has a trip to Edinburgh from St Pancras. He didn’t tell me the exact meter reading but the phrase “Four figures guv” said a lot. Some weeks in the winter he did two or three nights like this.

It had been a full train due to the earlier cancellations. There had been standing in first class. I estimated several hundred grumpy and tired passengers had disembarked at Kings Cross and been squeezed in to taxis to finish their journeys. Even with 5 in a taxi at least 100 taxis had been used on that train at £200 a taxi. I wonder how much that cost?

They also refunded the cost of the ticket as it was waaaaaaaaay over their expected arrival. I expect the other several hundred passengers had theirs refunded as well.

Contrast that with the 1703 north from Kings Cross on an equally cold and wet day in February. I’d done another day’s training and was looking forward to my first class offering. (Senior rail card otherwise I’d be in second err…standard class).

The complimentary glass of alcohol. OK. The complimentary peanuts. OK. The hot dish was a disappointment. Fish & Chips. Nonetheless I ordered it.

filetoWhat a disaster. When it arrived 5 minutes later as we crawled past Finsbury Park there it was on a small plate in front of me.

A four inch fish  and with 6 square cut chips beautifully arranged three on top of three others. I looked at it for too long before eating as the waiter asked if I was alright.

“A bit small isn’t it?”

“You can have another afterwards if you want Sir, we’re not busy today”

I declined. There was cheese & biscuits to follow or so I thought.

Wrong. Like the Filet ‘o’ Fish I had just eaten it was a load of pollocks.

“Cheese is on the 1733 Sir”

So there you have it. Phenomenal customer service on a late running train at enormous expense. Very poor first class food on the 1703. Who decides how this train company spends its money? Whose money is it anyway? Would an FOI request elicit this information? If it was a public body we could find out.

Hang on a minute….

 

Disclosure of Staff Names under FOI

Most_Popular_Male_Names

When considering request for information under the Freedom of Information Act 2000(FOI) public authorities often face a dilemma about disclosing names of staff.

Names are generally considered to be personal data, being information relating to living identifiable individuals (as defined by the Data Protection Act 1998 (DPA)). (Although one Information Tribunal (as it was known then) decision, Harcup v Information Commissioner and Yorkshire Forward (EA/2007/0058), ruled they are not. (See episode 11 of my FOI Podcasts for a full discussion of this decision). Therefore the exemption under section 40(2) (third party personal data) will have to be considered.

For this exemption to be engaged a public authority must show that disclosure of the name(s) would breach one of theData Protection Principles. Most cases in this area focus on First Principle and so public authorities have to ask, would disclosure be fair and lawful? They also have to justify the disclosure by reference to one of the conditions in Schedule 2 of the DPA (as well as Schedule 3  in the case of sensitive personal data). In the absence of consent, most authorities end up considering whether disclosure is necessary for the applicant to pursue a legitimate interest and, even if it is, whether the disclosure is unwarranted due to the harm caused to the subject(s) (condition 6 of Schedule 2)?

The seniority of the staff, whose names are being requested, will of course be a key factor in deciding whether disclosure is fair. The first Information Tribunal decision on this issue, back in 2007, (Ministry of Defence v Information Commissioner and Rob Evans (EA/2006/0027)) concerned a request made by a journalist for a staff directory which included the names and contact details of individuals working for the Defence Exports Services Organisation. The MoD refused to disclose the information citing, amongst others, the exemption under section 40(2).

The Tribunal ruled that that the MoD could only withhold names of staff if they are particularly junior (below Civil Service B2 Level), not immediately responsible for the requested information and their name is not already available elsewhere (or would be expected to be through their performing a public-facing duty); or there is a clear and demonstrable threat to that individual’s health and safety if their name is made public.

As is clear from the MoD decision, seniority is just one factor to be taken into account. Public authorities should avoid the blanket non-disclosure of the names of all officers below a certain level of seniority. When it comes to the disclosure of names, what matters is what work the individuals are doing, rather than their seniority or grade. If a person is in a front facing role and his/her name is already in the public domain, then it will be difficult to withhold it.

In 2008 another Tribunal decision (The Department for Business, Enterprise and Regulatory Reform v Information Commissioner and Friend of the Earth (EA/2007/0072) examined whether names of private sector employees attending a meeting should be disclosed as well as those of civil servants. The request was for information about meetings and correspondence between Ministers and senior civil servants in the Department of Business, Enterprise and Regulatory Reform and employees from the Confederation of British Industry. Some of the documents relevant to the request included references to individuals who had attended such meetings as spokespersons or as note takers or bystanders. The Tribunal summarised the position as follows:

a. Senior officials of both the government department and lobbyist attending meetings and communicating with each other can have no expectation of privacy. The officials to whom this principle applies should not be restricted to the senior spokesperson for the organisation. It should also relate to any spokesperson.

b. Recorded comments attributed to such officials at meetings should similarly carry no expectation of privacy.

d. In contrast junior officials, who are not spokespersons for their organisations or merely attend meetings as observers or stand-ins for more senior officials, do have an expectation of privacy. This means that there may be circumstances where junior officials who act as spokespersons for their organisations are unable to rely on an expectation of privacy;

e. The question as to whether a person is acting in a senior or junior capacity or as a spokesperson is one to be determined on the facts of each case.

f. The extent of the disclosure of additional information in relation to a named official will be subject to usual test i.e. is disclosure necessary for the applicant to pursue a legitimate interest, and, even if it is, is the disclosure unwarranted due to the harm caused to the individuals by disclosure? This will largely depend on whether the additional information relates to the person’s business or professional capacity or is of a personal nature unrelated to business.

In January 2011, the First Tier Tribunal (Information Rights) considered disclosure of names in Dun v IC and National Audit Office (EA/2010/0060). The disputed information concerned the NAO’s enquiry into the FCO’s handling of employee grievances of a whistleblowing variety. The Tribunal was clear that no blanket policy should apply, and that fairness depends on the particular responsibilities and information with which the case is concerned. This decision is discussed in detail in episode 21 of my FOI Podcasts.

Where there is a risk to staff safety if their names are disclosed, then the public authority will be right to err on the side of caution. In Wild v IC and Chief Constable of Hampshire Constabulary (EA/2010/0132) the Appellant requested the dates of pre-hunt meetings in the last five years and the names of police officers attending pre-hunt meetings with organisers of the Isle of Wight Hunt. The Police responded, providing dates, but refusing to disclose the names of the officers in attendance.

The Commissioner considered the section 40(2) exemption and concluded that the disclosure would result in a breach of the First Data Protection principle.  He accepted that the disclosure may lead to the harassment of the officers identified and consequently the disclosure would be unfair to those officers. The Tribunal upheld the Commissioner’s decision.

Don’t forget condition 6 of schedule 2 of the DPA. A public authority will have to consider whether disclosure of a name is necessary for the applicant to pursue a legitimate interest, and, even if it is, whether the disclosure is unwarranted due to the harm caused to the individual by the disclosure.

A more recent Tribunal decision (January 2013), McFerran v IC (EA/2012/0030) involved a police search of a property owned by Shropshire County Council. At the police’s request, two junior council officers were present, but they had not been involved in any of the decision-making. The requester wanted the names of the council officers as well as their immediate superior. The council refused, relying on s. 40(2).

The Commissioner ordered disclosure of the name of the more senior officer, but not of the two juniors. The Tribunal agreed with this decision and dismissed the requester’s appeal, observing that:

“although… there is clearly a legitimate public interest in transparency of activity by public authorities, which impinges on the personal freedom of householders, there is insufficient information provided to add significant weight to the general public interest in transparency in public affairs. The Appellant has not satisfied us, either, that his attempts to have the matter investigated are being thwarted by the absence of the names of the individuals in question. If there is sufficient information about the event to interest those responsible for an investigation the absence of names will not deter them.”

This decision illustrates that, when it comes to junior officials, the requestor will have to show that there is legitimate interest in knowing the names of officers where they are junior. A general argument about openness and transparency will not suffice.

In Armit v IC and Home Office (EA/2012/0041) the UKBA redacted the names of the officials in a document entitled ‘Tourist Selection Indicators and Selection Techniques’ which fell within the scope of the request. The Tribunal agreed with this approach, taking account of the requester’s failure to identify a legitimate interest in public disclosure of the names of those officials:

“We do not accept the argument that the officials would not have expected their names within the document to be made public and were not given compelling evidence of this. We were given no information as to their specific grading but they were described in the document as ‘lead contributer’ and ‘lead postholder’. They clearly have some responsibility in relation to the work.  We were given no compelling evidence that disclosing their names would result in victimisation, insult or any form of danger.  However, we do accept that the officials would prefer not to have their names identified and that might in itself represent a certain right and freedom or legitimate interests in itself. In any event, to process personal data, it needs to be necessary to pursue the purposes of legitimate interests pursued by others.  In this case, we do not find that the Appellant has shown any legitimate interest in the names of the officials being disclosed to the public under FOIA. We conclude that the information is therefore exempt from disclosure.”

Another recent Tribunal decision on the disclosure of names is Roberts v IC and Dyfed Powys Police Authority (EA/2012/0032).

The issue of disclosure of names pursuant to an FOI request is a difficult one. As can be seen from this discussion of Tribunal decisions, a number of different factors have to be weighed in the balance. A blanket approach will not work.

Whilst on the subject of names, does an FOI requestor have to give his/her real name? Read the answer here  as well as a really bad joke!

Ibrahim Hasan will be discussing this and other recent FOI decisions in the FOI Update workshop  on 13th March 2013.

Do you want an international recognised qualification in FOI?                           The ISEB Certificate in Freedom of Information  starts in Birmingham on 26th March 2013.

Can Spiderman make a Freedom of Information request?

Has your public authority ever received an FOI request from Justin Case, Barb Dwyer or Stan Still? Would these even be valid requests? According to a survey of FOI officers published by the Constitution Unit, the average council receives 47 information requests a month. The media now make around a third of all requests but members of the public still account for the most number at 37%. Increasingly FOI officers come across unusual names when dealing with such requests.

Can the use of an apparently fictitious name or pseudonym invalidate an otherwise valid FOI request? Section 8 of the Act states that a request must be in writing, state the name of the applicant and an address for correspondence and must describe the information requested. Most FOI officers I have trained seem to think that they have the right to ask for the “real name” of the requestor. According to the Information Commissioner’s Guidance  this view is correct:

“…the use of a false or fictitious name is not acceptable. Therefore, where a public authority receives a request from a person using an obvious pseudonym, there is no obligation to comply with the request;”

The Guidance goes on:

“In most cases, it will be reasonable for a real name to comprise a name by which the person making the request is widely known and/or is regularly used by that person and which is not an obvious pseudonym or fictitious name.”

The Commissioner does explain later that a common sense approach should be taken. Even when an obvious pseudonym has been used, as good practice a public authority should still consider the request even though technically it can be regarded as invalid. He advises that this approach could be adopted in cases where identity is not relevant to the request and, in view of the general principle in FOI of disclosure to the world at large, where the authority is content to disclose the information.

I think the Commissioner’s guidance is flawed in that it encourages public authorities to focus too much on the identity of the requestor and not on the information being requested.  Let us go back to basics.

Section 8 only requires the applicant to state his/her name. I have always advised clients that a name is a just what the requestor chooses to call him/herself. The Commissioner’s guidance encourages the public authority to speculate whether a given name is a pseudonym or fictitious. How can a public authority be sure that a given name is so? Where can it check that a name is real? I am not aware of any comprehensive official register of names in the UK. And not everyone is on the electoral roll.

The names in the first paragraph of this article are real names uncovered by researchers from a parenting group after trawling through online telephone records. Other they found include Pearl Button, Jo King and Tim Burr.

In any event a public authority cannot insist on a real or “proper” name from an FOI requestor as there is no such concept in English Law. A person can call themselves anything. They are not restricted to what is on their birth certificate. People change their name by deed poll (though they do not have to use such a document) to fit in with their lifestyle or to emulate their favourite celebrity. If a public authority receives an FOI request signed “Amy Winehouse” or “Michael Jackson” are they going to reject it or ask for proof that the King and Queen of Pop have risen again? What about a request from Facebookdotcom Forwardslash Mountaindew UK? These are all real names of living people.  (Honest! Click Here )

When researching this article, I found some interesting (and real) names on The Monster Raving Loony Party’s list of 2010 election candidates . Step forward Mr Nick The Flying Brick Delves, Chinners Chinnery and Hairy Knorm Davidson. If the Commissioner’s advice is correct, it seems that these names are real enough to allow the user to stand for election to the Mother of All Parliaments but not real enough to make an FOI request (without providing documentary evidence).

In 2011 a council purportedly claimed that the Information Commissioner’s Office (ICO) had backed its stance of asking an FOI requester to prove his identity. Upon receiving a request from a Buck U. Fogal, for expenditure over £500 for the clearance of three streets, the council asked for two forms of identification.  In its response to the requestor, it seemed to be implying that the ICO had agreed with this approach. If this is true, it is not in accordance with the Act. Another council has it seems been implementing an equally dubious system of randomly seeking proof of identity .

FOI is applicant blind and so the identity of the requestor should not be an issue. There are 23 exemptions under Part 2 of the Act, which can be relied upon if there is a problem in disclosing the requested information. A public authority cannot and should not ask who is making the request. There are exceptions to this general rule of course. For example where the requestor is asking for personal data (section 40). Sometimes the use of a pseudonym together with other factors such as volume and frequency of requests many lead to a request being deemed to be vexatious under section 14 of the Act (see the Tribunal Decision in Duke v IC and University of Salford (EA/2011/0060 26th July 2011). But these are exceptions and not the rule.

My advice to public authorities is, if you get an FOI request giving a name which you believe is fictitious then treat it is a valid request and focus on whether a Part 2 exemption from disclosure applies.

So back to the question posed at the start of this article; can Spiderman make a Freedom of Information request?

The answer is no… but just tell him to the look on the Web! (boom boom!).

Ibrahim Hasan will be latest FOI developments and cases in his FOI Update workshop in Birmingham on 13th March. For those wanting an international recognized qualification in FOI, the ISEB Certificate in Freedom of Information  starts in Birmingham on 26th March