Tag: Freedom of Information

Veni, Veto, Vici : Court of Appeal FOI Veto Case and its Implications

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What effect will the Court of Appeal’s recent decision on the FOI – and EIR – ministerial veto have on another recent case – the vetoing of the decision to require disclosure of the High Speed Rail assessment review?

On 6 June 2013 the Information Commissioner (IC) served a Decision Notice under the Environmental Information Regulations 2004 (EIR). Section 50(4) of the Freedom of Information Act 2000 (FOIA) gives the IC the power to do so (those powers being extended to the EIR by Regulation 18). The Decision Notice required the Cabinet Office to disclose a Project Assessment Review (“PAR”) report concerning the high-speed rail link, High Speed Two (HS2).  On 30 January 2014 Patrick McCloughin, Secretary of State for Transport, signed a certificate pursuant to section 53 of FOI and Regulation 18(6) of the EIR. The effect of this certificate was that the Cabinet Office was no longer required to comply with the IC’s Decision Notice:

“the decision taken by the Cabinet Office not to disclose the PAR report in response to the relevant request was fully in accordance with the provisions of the EIR, or the Act, as appropriate”

Of course, this exercise of ministerial veto – described as a “constitutional aberration” by the Lord Chief Justice (Evans, R (on the application of) v HM Attorney General & Anor [2013] EWHC 1960 (Admin)), is not unprecedented; the power has now been wielded seven times (twice by the Labour government and five times by the coalition). The minister, notably, was minded to disagree with the IC that the request had fallen to be determined under the EIR, rather than FOIA:

“there is considerable force in the Cabinet Office’s position that the information within the PAR report was insufficiently proximate to the environmental impact of the HS2 project itself to amount to “environmental information” for the purposes of the EIR”

However, he went on to say that:

“it is not necessary for me to determine whether the PAR report is environmental information, because I take the view that the Cabinet Office was entitled to withhold it from disclosure, whether or not it consisted of environmental information”

This is perhaps surprising, because at the time he issued that veto certificate there was an argument, being aired in the Court of Appeal, that the power to exercise the veto does not exist under the European law to which the EIR give domestic effect.

Now, the Court of Appeal has handed down judgment (Evans, R (on the application of) v HM Attorney General & Anor [2014] EWCA Civ 254). The case is being recognised, correctly, as primarily about the specific lawfulness of the vetoing of the disclosure of private correspondence on policy matters between the Prince of Wales and government departments. However, as in the Divisional Court beforehand, one point which fell to be determined was about the general status of the veto power in relation to environmental information. On this point the Court of Appeal held that

“the certificate is incompatible with EU law in so far as the information to which it relates is environmental information”

The court’s reasoning was that, although, the EIR, by Regulation 18, provide for a ministerial veto no such power exists in the Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information (“the Directive”) which is implemented in domestic legislation by the EIR. Moreover, Article 6(2) of the Directive says, crucially

Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final

And this requirement to have a “final” review before a court or independent and impartial body could not be satisfied by the availability of judicial review of a ministerial veto. Article 6(2) and (3) should be given their natural and ordinary meaning: the right is to have the acts or omissions of the public authority reviewed, but in judicial review proceedings the question becomes whether the accountable person had reasonable grounds for forming the opinion that the public authority had in fact complied with its EIR obligations and, “that difference is not a mere matter of form”. Moreover, and for broadly similar reasons, the veto power offended Article 47 of The EU Charter of Fundamental Rights which provides:

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article”

So what does this mean for the veto on the HS2 “PAR” request? It certainly appears at the moment that following the Court of Appeal’s ratio in Evans, and to the extent that the HS2 request was for environmental information, that the veto may be unlawful, if (as has been suggested, it is challenged). However, there are two caveats to that. Firstly, the Attorney General has been given permission to appeal Evans to the Supreme Court: it seems highly likely that the general EIR point will be appealed, as well as the overarching specific point about the public law validity of the veto (if the former is not appealed, then it would mean in effect that the government accepts that the EIR fail properly to implement the Directive). Secondly, we must look back to the suggestion by the Minister when issuing the certificate in the HS2 veto that he tended to disagree with the IC that the information in question was environmental. Much, despite what he implied about the lack of need to determine this point, may now turn on this: if the information was environmental then Evans, providing the EIR point is not overturned by the Supreme Court, may well lead to the veto being struck down. If, however, the information was not environmental, and FOIA applied, then any appeal of it will presumably be on domestic public law grounds.

At this point it is probably otiose to start speculating on what will happen with requests which are classed as hybrid ones – namely, those which seek information which is a mix of environmental and non-environmental (as, indeed, those in both Evans and the HS2 case arguably are). All these matters are by no means yet resolved.

Jon Baines, who is Chairman of the National Association of Data Protection Officers (NADPO) and works in local government.

Ibrahim Hasan will be discussing this and other recent FOI decisions in the FOI Update workshops and online webinars.

FOI Requests From Heir Hunters

The poor quality of the British daytime television schedule means that one who is off sick or “working” from home, often has a choice between BBC Parliament, School for Stars and Heir Hunters. (Yes dear reader, I have done our research!) The latter is a BBC programme focusing on attempts by Probate researchers to find missing or unknown heirs, entitled to deceased persons’ estates.

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In the UK, intestacy law states that when someone dies with no will or known family, everything they own passes to the Crown as ownerless property (or ‘Bona Vacantia’). This includes their house, money and personal possessions. Thus finding missing heirs is quite a lucrative business as some of these companies require beneficiaries to enter into an agreement to share up to 40% of the inheritance.

What the BBC programme does not tell the viewer is that Probate researchers (also known as heir searchers and forensic genealogists) often use the Freedom of Information Act 2000 (FOI) to request information to help them trace missing beneficiaries. Over the last few years many councils have seen a substantial increase in the number of these requests. These relate to deaths in the local area where the deceased is believed to have died intestate and with no known next of kin. Councils may have this information because the deceased was in the care of the council or had a public health funeral. The researchers often asks for the deceased’s name, date of birth, date of death, last known address and the estimated value of the estate.

How to deal with such requests? It may be that the requested information has already been passed on to the Government as required by law. In England and Wales, the Bona Vacantia Division (BVD) of the Treasury Solicitor’s Department is responsible for dealing with bona vacantia assetsexcept in the Duchy of Lancaster or the Duchy of Cornwall. Everyday BVD publishes an Unclaimed Asset List setting out unclaimed estates which have been recently referred, but not yet administered, and historic cases which have not yet been claimed by entitled relatives. Included in the list is the deceased name, area of death, date, marital status, place of birth and local authority informant. Sometimes other details will be given (if known) such as spouses name, place of marriage and nationality. The list is updated every working day and newly advertised estates appear at the top of the list.

This list is a good starting point for probate researchers but often and they will rely on FOI requests to councils to try and fill in the blanks and trace missing relatives before their rivals. Many councils have chosen to put a lot of the information on their website; Redbridge, Northampton, Knowsley to name a few. This then allows them to claim the exemption under section 21 of FOI i.e. that the information is reasonably accessible by other means. Often though the researchers want more than the basic information, which is published by the councils online (see later).

Of course where the requested information has been passed on to the BVD (or is about to be passed on) and it will appear on the published BVD list, it is open to the council to claim the exemption under section 22 (information intended for future publication). It does not matter that the council will not be publishing the information itself as long as there is a settled intention to publish it on the part of another (in this case the BVD). Section 22 is a qualified exemption and so subject to the public interest test.

Section can only be claimed if the precise information, which is the subject of the FOI request, is going to be published by BVD. In a Commissioner decision from 2007 involving the Rent Service (TRS), the complainant requested to be advised as to the then current figures for local reference rents in a specified area in the UK. TRS declined to release the information relying on section 22 stating that the figures would be contained in an annual valuation report to be published at a later date and that the public interest in maintaining the exemption outweighed the public interest in disclosing the information. The Commissioner found that section 22 did not apply as the figures requested would not be published in the valuation report.

Where the information requested by probate researchers is not published, many councils have claimed the exemption in section 31 arguing that disclosure would prejudice the prevention of crime. Indeed BVD have themselves claimed this exemption to withhold the value of the estates they have processed arguing that “disclosure of the exempt information could help enable the commission of fraud”. It is difficult to understand how disclosing the value of a person’s estate would directly lead to a criminal offence being committed. Surely more than a general statement is required in the refusal notice? The Information Commissioner’s Guidance on section 31 states:

“The public authority must be able to demonstrate a causal link between the disclosure and the harm claimed.”

However a 2012 decision of the Information Commissioner seems to lend support for use of section 31 in such cases. The complainant requested details of people for whom Westminster City Council had arranged “paupers” funerals in the last ten years. The Commissioner agreed with the council that section 31 applied and it was not in the public interest to disclose the information.

The Council argued the release of personal details of a deceased individual with no known relatives, and no will, may make the assets of that person vulnerable. It explained that the assets of the deceased need to be secured and disclosure of the information may lead to the commission of offences (e.g. arson, identity theft etc.) and cause loss to the unsecured estates. The Commissioner also placed weight on the fact that Westminster is one of the London boroughs with the most reported identity fraud cases.

Some councils have argued that section 41 (Breach of Confidence) may apply to some of the information requested about the deceased. This can only be the case if the information has come from another party and is highly confidential. Section 41 is unlikely to apply to most requests from probate researchers. For a detailed discussion on access to information about the deceased under FOI, read my article and blog post.

I have not come across a First Tier Tribunal decision on “Heir Hunter requests” and so the exemptions, especially section 31, have yet to be comprehensively explored. For now, it seems that councils can use the range of exceptions discussed above to reduce the burden of FOI requests from probate researchers. Some information should of course be provided to satisfy the nation’s appetite for “quality day time television!”

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.

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….