FOIA and EIR case tracker

This case tracker follows decisions made by the Information Commissioner's Office (ICO), the First-tier Tribunal (Information Rights (FTTIR) (formerly the Information Tribunal (IT)), the Upper Tribunal (UT) and other courts that involve the use of the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (SI 2004/3391) (EIR).

Contents

Using this tracker

This tracker includes details of all PLC legal updates on decisions relating to the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 (SI 2004/3391) made by:

  • The courts.

  • The Upper Tribunal (UT).

  • The First-tier Tribunal (FTTIR) (and the Information Tribunal (IT) before 1 January 2010).

  • The Information Commissioner's Office (ICO).

Please note that we do not report on all decisions made by these bodies. We only report where we consider that a decision changes or develops the law or highlights a point of interest.

The legal updates are arranged below by reference to the exemption or exception that they concern and are ordered according to the body that made the decision (starting with decisions made by the most senior body) and then chronologically (most recent first).

 

Freedom of Information Act (FOIA)

Section 12: cost limit

Type of decision

Parties and reference

Summary

Link to update

ICO

The Complainant v The Financial Conduct Authority (FS50496791) (2014)

The complainant made an initial request to the FCA for information relating to its investigation into Keydata Investment Services Ltd. The FCA claimed that it was not obliged to comply with the information requests by virtue of section 12(1) (appropriate limit) of the FOIA.

The complainant challenged the findings, the FCA carried out an internal review which upheld its decision. The complainant subsequently complained to the ICO.

while investigating the FCA's response to the information request, the Commissioner became aware of the possibility that the complainant and the FCA shared different interpretations of the scope of the request. In the light of this, and taking other factors into account, the Commissioner decided that the FCA failed to act on the complainant's intended alternative reading of the request and was in breach of section 1(1) (rights of access) of the FOIA.

It therefore required the FCA to process the alternative reading and issue an appropriate response.

ICO finds FCA breached FOIA (www.practicallaw.com/7-554-6445)

High Court

Chief Constable of South Yorkshire Police v the Information Commissioner (2011) EWHC 44 (Admin)

The High Court held that, when estimating whether the cost of complying with a request for information would exceed the appropriate limit, a public authority was not permitted by regulation 4 of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (SI 2004/3244)) to consider time it expected to spend redacting exempt information from relevant documents before disclosing them to the applicant.

High Court rules that time spent redacting exempt information was not permitted by the FOI fees regulations (www.practicallaw.com/9-504-6791)

UT

All Party Parliamentary Group on Extraordinary Rendition v the Information Commissioner and another (2011) UKUT 153 (AAC)

The UT ordered the Ministry of Defence to disclose information relating to the extraordinary rendition of prisoners following a request made under the FOIA. The UT has questioned the previous UT decision in DEFRA v Information Commissioner and another [2011] UKUT 39 (AAC), which found that public authorities were entitled as of right to raise exemptions under the FOIA for the first time when a matter reached tribunal stage.

The decision in APG also found that the exemption in section 12 of FOIA should be claimed when a request is first responded to and that the disclosure of anonymised data that would not allow people (other than the disclosing authority) to identify individuals does not constitute the processing of personal data and does not attract the exemption in section 40 of FOIA.

Further confusion on late claiming of exemptions as MOD ordered to disclose information on extraordinary rendition (Upper Tribunal) (www.practicallaw.com/6-505-9394)

FTTIR

Sittampalam v the Information Commissioner and another (EA/2010/0141) (2011)

The FTTIR provided further guidance on the stage at which a public authority can claim the exemption set out in section 12 of the FOIA. The exemption allows an authority to refuse to respond to a request for information made under FOIA when doing so would exceed the applicable cost limit, £600 for central government or £450 for other public bodies.

Authorities should claim section 12 exemption at the outset (FTTIR) (www.practicallaw.com/7-506-8543)

IT

The Chief Constable of South Yorkshire Police v the Information Commissioner (EA/2009/29) (2009)

The IT found that the time taken to redact a document cannot be taken into account by a public authority when deciding if the cost limit set out in section 12 of FOIA applies.

An appeal by the Chief Constable has also now been rejected by the High Court (see above).

Information Tribunal: FOIA cost limit cannot take account of redaction time (www.practicallaw.com/8-501-0231)

IT

Mrs B Francis v the Information Commissioner (2) South Essex Partnership Foundation NHS Trust (Trust) (EA/2007/91) (2009)

The IT found an authority could take account of time spent following a misunderstanding of a request for information in applying the limit set out in section 12 FOIA.

This followed both the ICO and the Trust misunderstanding the complainant's request for certain pages that had been removed from reports previously disclosed to the complainant.

Information Tribunal: public authority can still rely on cost limit when it has misunderstood information request (www.practicallaw.com/7-386-2361)

IT

Tony Harcup and Yorkshire Forward (YF) v the Information Commissioner (EA/2007/0058) (2008)

The IT stated that a public authority is not required to prove their estimate of costs to any high standard; merely that is a reasonable one.

Information Tribunal rules on disclosure of delegates at corporate events (www.practicallaw.com/6-380-7657)

IT

Robert Brown v the Information Commissioner and the National Archives (NA) (as an additional party) (EA/2006/0088) (2007)

The IT allowed an appeal against a decision of the ICO, ruling that the NA wrongly refused to continue to disclose information from its online records relating to Princess Margaret under section 12 or 14 of FOIA. It held that section 12, had to be considered with section 16, which concerns the advice and assistance that a public authority is obliged to give to those who request information. Here, it would have been reasonable to expect the NA to advise the appellant to phase his requests at intervals of more than 60 days, and to help him do so in a logical manner. NA's failure to do so meant it could not rely on section 12 to refuse the request.

Information Tribunal rules that National Archives should have given FOI requester more help (www.practicallaw.com/4-377-9354)

IT

Mr P Quinn v the Information Commissioner (EA/2006/0010) (2006)

The IT held that an authority could rely on section 12, not only where a costs estimate was made by an authority before a search had commenced, but also where a search had been embarked on and the appropriate cost limit had been reached.

Information Tribunal considers section 12 of the FOIA (www.practicallaw.com/8-208-6960)

ICO

The Complainant v the Department of Health (DoH) (FS50088736) (2009)

The ICO held that the bulk of a contract between the DoH and one of its service providers had to be disclosed following a request under FOIA.

The ICO found that the DoH had misinterpreted the request and that this had led to the estimated cost of complying with the request being inflated, section 12 did not therefore apply.

Department of Health under renewed fire from the Information Commissioner's Office (www.practicallaw.com/9-384-9161)

ICO

The Complainant v the Forestry Commission Scotland (FCS) (number of decisions of similar nature) (FS50190235, FS50176016 and FS50187763) (2009)

The complainants in each case requested information from the FCS. The FCS refused to disclose the information, or to confirm if the information requested was held citing sections 14(1) and 12(1) of FOIA. The ICO investigated and found that sections 14(1) and 12(1) of FOIA were not engaged. Section 12(1) was not engaged because the ICO did not consider that the FCS's estimates of the time it would take to respond to the requests were reasonable.

ICO decision notices in brief for week ending 22 April 2009 (www.practicallaw.com/5-385-8237)

ICO

The Complainant v the Office of Fair Trading (OFT) (FS50173284) (2008)

The complainants requested information from the OFT regarding its investigation into credit card default charges. The OFT explained that it held the requested information but to provide it would exceed the appropriate cost limit under section 12 of FOIA. The ICO found that the OFT was entitled to aggregate the cost of responding to the request under section 12(4) and that the OFT correctly relied upon section 12(1) as a basis for not providing some of the information.

ICO finds both for and against OFT (www.practicallaw.com/8-384-3659)

Section 14: vexatious request

Type of decision

Parties and reference

Summary

Link to update

FTTIR

Mr Narinder Singh Chadha v Information Commissioner EA/2013/0260 (11 July 2014)

The FTTIR has ruled that an NHS trust was not entitled to refuse an information request as vexatious under section 14 of the FOIA, where the trust's own failure to provide advice and assistance was the cause of the requester's repeated correspondence.

Multiple information requests caused by inadequate public authority response were not vexatious (FTT(IR)) (www.practicallaw.com/0-574-5066).

FTTIR

Harvey v Information Commissioner and Walberswick Parish Council (EA/2013/0022) (7 August 2013)

The FTTIR has applied the indicators set out by the UT in ICO v Devon County Council and Dransfield [2012] UKUT 440 (AAC) and ruled that requests made to a parish council under the FOIA relating to that parish council's handling of previous FOIA requests were vexatious.

FOIA request about parish council's responsiveness to FOIA requests was vexatious under Dransfield indicators (First-tier Tribunal (Information Rights)) (www.practicallaw.com/4-537-3752).

UT

Information Commissioner v Dransfield [2012] UKUT 440 (AAC), Craven v Information Commissioner [2012] UKUT 442 (AAC) and Ainslie v Information Commissioner [2012] UKUT 441 (AAC)

The UT ruled on the correct test for whether information requests are vexatious (section 14, FOIA) or manifestly unreasonable (regulation 12(4)(b), EIR). The UT stated that:

  • Both tests are the same: namely, whether the disputed request involves the "manifestly unjustified, inappropriate or improper use of a formal procedure".

  • The background and context would be key in deciding each case on its facts.

The rulings were in three separate cases that were heard by the same judge within a short time of each other. They are significant because the FOIA does not give guidance on the meaning of these terms and there has previously been no binding authority from appellate courts or tribunals.

Binding guidance on vexatious and manifestly unreasonable requests (Upper Tribunal) (www.practicallaw.com/1-524-0848)

FTTIR

Ian Pratt v Information Commissioner (EA/2012/0133)

In deciding whether a request for financial information was vexatious under section 14 of the FOIA, the FTTIR ruled that previous unrelated communications between a council and the maker of the request were not relevant. However, the tribunal did not rule out contemporaneous information being taken into account in other requests.

Vexatious FOIA requests: parties' previous communications not relevant (First-tier Tribunal (Information Rights)) (www.practicallaw.com/7-523-4420)

FTTIR

Pringle v IC and Bury Council (EA/2012/0062)

The FTTIR rejected the Information Commissioner's decision that Bury Council was correct to refuse the appellant's freedom of information request as vexatious under section 14 of the FOIA. The appellant had submitted an 11-page information request to the council. The FTTIR concluded that the council should have considered inviting the appellant to narrow and focus his request so that it could be dealt with in a more effective way and that the council should not have included, in its claim of vexatiousness, the impact of questions submitted at public council meetings, to the Audit Commission and to a local MP.

Campaigner's request for information held not to be vexatious on appeal (First-tier Tribunal (Information Rights)) (www.practicallaw.com/7-521-6341)

FTTIR

Independent Police Complaints Commission v Information Commissioner (EA/2011/0222)

The Tribunal took a broad view of the exemptions in sections 12 (costs limit) and 14 (vexatious requests) of FOIA. The tribunal held that there only needs to be a very loose connection between requests to allow them to be aggregated for the purposes of section 12, and that the costs of responding to a request can lead to the request being vexatious under section 14. Public authorities should consider whether they can take advantage of the views taken by the tribunal in dealing with requests for information that they consider are abusing the right to information established in FOIA.

FOIA: Tribunal holds that costs of responding can make information request vexatious (First-tier Tribunal) (www.practicallaw.com/5-518-8914)

FTTIR

Conway v Information Commissioner (EA/2011/0224)

The Tribunal provided guidance on the meaning of harassment in vexatious requests and highlighted the importance of following the Information Commissioner's guidance. The Tribunal also stated that whether a request creates a strain on a public authority's resources is not relevant to the question of whether a request is vexatious.

Information request not harassment or vexatious (First-Tier Tribunal (Information Rights) (www.practicallaw.com/6-518-4345))

ICO

The Complainant v Sunderland City Council (Council) (FS50380006 and FS50374873) (2011)

In two decision notices dated 24 October 2011, the Information Commissioner's Office (ICO) ordered Sunderland City Council to reconsider two requests for information, regarding funding for business initiatives. The council had refused the requests on the basis they were vexatious under section 14(1) of the Freedom of Information Act 2000.

ICO: public authority must submit evidence of its own that request for information vexatious (www.practicallaw.com/7-511-4328)

UT

IB v Information Commissioner [2011] UKUT 370 (AAC)

The appellant, a vexatious litigant, wanted to appeal four decisions of the Information Commissioner with the First-tier tribunal, which had been struck out for lack of permission. He therefore appealed to the AAC.

The AAC held the grant of permission to a vexatious litigant to bring proceedings was not a matter that was incidental to the AAC's functions (section 25(c), Tribunal, Courts and Enforcement Act 2007). Therefore, the AAC did not have power to give permission. The appellant needed the permission of the High Court to bring proceedings before the FTT and the AAC and the FTT had no jurisdiction to deal with any aspect of IB's appeals, unless and until he obtained permission of the High Court.

Vexatious litigant needs permission of the High Court to bring proceedings before the First-tier Tribunal (Information Rights) (UT (AAC)) (www.practicallaw.com/3-510-4289)

FTTIR

Dransfield v the Information Commissioner (EA/2011/0079) (2011)

The applicant made a request on 29 May 2010 for approved design drawings of the pedestrian bridge at Exeter Chiefs' Rugby Grounds and the lightning protection system test (LPS) results in relation to that bridge. However, there was a history of previous FOIA requests relating to health and safety and LPS of other projects and buildings that Devon County Council (Council) relied on when characterising the applicant's request as vexatious, and which the IC agreed, was a continuation of the applicant's May 2010 request.

Having carefully considered the history of prior dealings between the applicant and the Council, the FTTIR decided that the request was not vexatious. Its reasons for doing so were that the request, on its face, was simple and "entirely benign". The reason the request for information was refused had everything to do with the previous history of dealings and nothing to do with the request itself.

Vexatious requests under FOIA: look at the request not the applicant

FTTIR

Duke v the Information Commissioner (EA/2011/0060) (2011)

The public authority refused requests for information on the basis that a substantial number of freedom of information requests had been received during a specific period and that, to a significant extent, they were associated with each other. The FTTIR agreed that the applicant was acting with others in pursuing a targeted campaign of requests and upheld the decision of the public authority and the IC that the appellant's request fell within section 14 of the FOIA.

Context and history of vexatious requests relevant (First-tier Tribunal) (www.practicallaw.com/8-507-4633)

FTTIR

Gardner v the Information Commissioner (EA/2011/0054) (2011)

Gardner was a tenant of Nottingham City Council. He had requested information on public expenditure on neighbouring flats, in the belief that more money had been spent on their upkeep than the property he occupied. The FTTIR rejected the IC's finding that, in view of the context and history of his requests, the applicant had "stepped over the fine line between persistence and a request being obsessive and unreasonable". The FTTIR found that insufficient consideration had been given to the applicant's request because the public authority and the IC had placed too much weight on the context of the request, rather than on giving sufficient consideration to the purpose and value of the request. Gardner's request did not fall within section 14 of the FOIA.

Context and history of vexatious requests relevant (First-tier Tribunal) (www.practicallaw.com/8-507-4633)

FTTIR

Wise v the Information Commissioner (EA/2011/0015) (2011)

The appellant appealed the IC's decision that his request for information to Lancashire Constabulary (LC) was vexatious. The issue for the FTTIR was whether the IC had acted in accordance with the law when concluding that LC had correctly applied section 14 of the FOIA.

The FTTIR overturned the IC's decision in this case because no corroborating evidence on the volume and history of requests was produced by the public authority to the IC or the FTTIR. As a result, the IC is likely to be more demanding when it considers if a claim is vexatious. Therefore, authorities seeking to rely on section 14 should ensure they provide adequate details of the volume of requests and the history of allegations.

Lack of corroborating evidence overturns IC's decision (First-tier Tribunal (Information Rights)) (www.practicallaw.com/3-507-1104)

FTTIR

Ward v the Information Commissioner (EA/2009/0093) (2010)

The FTTIR:

  • Rejected an appeal against a decision notice issued by the ICO that had found that a series of requests for information made under FOIA were vexatious and did not need to be responded to as a result of section 14.

  • Set out general guidance on when a request should be deemed vexatious.

Information Tribunal: when is a request vexatious? (www.practicallaw.com/4-502-4334)

IT

Robert Brown v the Information Commissioner and the National Archives (NA) (as an additional party) (EA/2006/0088) (2007)

The IT allowed an appeal against a decision of the ICO, ruling that the NA wrongly refused to continue to disclose information from its online records relating to Princess Margaret under section 12 or 14 of FOIA. The IT also held that it could not rely on section 14 concerning vexatious or repeated requests as although the requests were identical they were made in respect of different records of information.

Information Tribunal rules that National Archives should have given FOI requester more help (www.practicallaw.com/4-377-9354)

ICO

The Complainant v the Brent Council (Council) (FS50238979) (2009)

The complainant made a number of requests to the Council and a number of other authorities for information relating to complaints against it and their outcomes as well as its expenditure. The Council refused the request on the basis of the provisions of section 14(1) of FOIA, stating that the request was vexatious. The ICO held a public authority can in some cases consider requests made to other public authorities in determining that a request is vexatious. However, the ICO also stated that, this placed a greater burden on the public authority to show reasonable arguments in relation to the five tests for vexatiousness.

ICO decision notices in brief for week ending 22 July 2009 (www.practicallaw.com/5-386-8062)

ICO

The Complainant v the Forestry Commission Scotland (FCS) (number of decisions of similar nature) (FS50190235, FS50176016 and FS50187763) (2009)

The complainants in each case requested information from the FCS. The FCS refused to disclose the information, or to confirm if the information requested was held citing sections 14(1) and 12(1) of FOIA. The ICO investigated and found that sections 14(1) and 12(1) of FOIA were not engaged.

ICO decision notices in brief for week ending 22 April 2009 (www.practicallaw.com/5-385-8237)

ICO

The Complainant v the West Midlands Passenger Transport Executive (Centro) (FS50110741) (2007)

The ICO concluded that Centro was entitled to refuse to answer a request for information because it was vexatious under section 14(1) of FOIA. The complainant had submitted 15 requests to Centro concerning the authority's financial relationship with four local bus companies. The ICO decided that the fifteenth request was vexatious because it imposed a significant and unreasonable burden on Centro; when taken with earlier requests, it had the effect of harassing Centro; and it was obsessive or manifestly unreasonable.

Information Commissioner upholds refusal to consider vexatious request (www.practicallaw.com/7-221-9965)

Section 32: court records, etc

Type of decision

Parties and reference

Summary

Link to update

SC

Kennedy v Charity Commission [2014] UKSC 20

The SC rejected an appeal by a journalist seeking disclosure of documents arising from the Charity Commission's inquiry into the Mariam Appeal, a charity established by George Galloway MP for sick children in Iraq.

The SC held by a five to two majority that section 32 of FOIA applied an absolute exemption to documents held for the purposes of an inquiry and refused to read the section in light of the right to freedom of expression under Article 10 of the European Convention on Human Rights, and so limit the exemption to current inquiries only.

However, the court ruled that the appellant could have challenged (and could still challenge) the refusal to disclose the documents under charities legislation and common law.

Information from Charity Commission inquiry exempt from disclosure under FOIA but not necessarily under common law (Supreme Court) (www.practicallaw.com/3-563-1285)

CA

Kennedy v Charity Commission [2012] EWCA Civ 317

The Court of Appeal considered the relationship between the exemption from disclosing information under section 32 of the FOIA for information relating to inquiries, and Article 10 of the ECHR. A journalist appealed against information he requested in relation to an inquiry being covered by the section 32 exemption. The applicant argued that this blanket exemption breached his Article 10 rights, and that the exemption should be limited under section 3 Human Rights Act 1998. The CoA held it was bound by the Supreme Court's decision in Sugar v BBC [2012] UKSC 12 to find that the applicant's Article 10 rights were not breached.

Note: This case has been appealed to the Supreme Court (see above).

Article 10 of the ECHR does not override section 32 FOIA exemption (Court of Appeal) (www.practicallaw.com/6-518-6783)

FTTIR

Institute of Chartered Accountants of England and Wales v Information Commissioner and another (EA/2011/0148) (2011)

The FTTIR has held that a certificate of conviction was covered by the section 32 of the FOIA absolute exemption, as it was a document created for the purposes of court proceedings and, therefore, it was the decision of individual courts whether to disclose.

Access to court records not a matter for FOIA (FTT (Information Rights)) (www.practicallaw.com/1-516-9446)

FTTIR

Kennedy v IC and another [2011] UKFTT EA_2008_0083 (GRC) (18 November 2011)

The FTTIR determined whether the conventional construction of section 32(2) of the FOIA (disclosure of inquiry records) infringed the appellant's right to freedom of expression and contravened Article 10 of the European Convention on Human Rights (ECHR).

Section 32(2) of FOIA does not with interfere with an applicant's right to freedom of expression (First-tier Tribunal) (www.practicallaw.com/9-514-4089)

CA

Kennedy v the Information Commissioner and another (2011) EWCA Civ 367

The appellant renewed an application to appeal the High Court ruling that information he had requested (following the Charity Commission's inquiries under the Charities Act 1993 into the Mariam Appeal founded by George Galloway) was exempt from disclosure under section 32 of the FOIA.

The issue for the Court of Appeal (CA) was whether the exemption under section 32(2) subsisted only for the duration of the inquiry or continued after the inquiry had concluded, although under section 63 of FOIA the exemption would lapse after 30 years.

The CA directed that the appeal be stayed so the human rights issue could be referred to the FTTIR for determination.

Is the exemption from disclosure in inquiry records compatible with Article 10 of the ECHR? (Court of Appeal) (www.practicallaw.com/1-506-1139)

HC

Dominic Kennedy v (1) the Information Commissioner (2) Charity Commission (CC) (2010) EWHC 475 (Admin)

The High Court confirmed the IT's decision and held that the CC could rely on the exemption from disclosure in section 32(2) of FOIA. The request for information to the CC came from a journalist, following the CC's inquiries under the Charities Act 1993 into the Mariam Appeal. The High Court held that documents which came into the custody of the CC and which were later held solely for the purpose of its inquiry fell within the section 32(2) exemption. It also confirmed that the definition of documents in section 32 included information recorded on an electronic medium.

Note: This case has been appealed to the Supreme Court (see above).

High Court considers FOIA disclosure of documents by Charity Commission (www.practicallaw.com/9-501-7171)

IT

Department for Business, Enterprise and Regulatory Reform v The Information Commissioner and Peninsula Business Services Limited EA/2008/0087 (2009) (www.practicallaw.com/9-386-7273)

 

 

ICO

The Complainant v the Hastings Borough Council (Council) (FS50148575) (2008)

The ICO found that the Council was wrong to apply the exemption contained in section 32(1)(b) of FOIA to the whole of a request for various details of all civil cases to which the Council was a party. This exemption required that the information was to be held by a public authority only by virtue of being contained in any document served on, or by, a public authority for the purposes of court proceedings.

Borough councils on wrong side of ICO decisions (www.practicallaw.com/7-384-7016)

Section 35: formulation or development of government policy and ministerial communications

Type of decision

Parties and reference

Summary

Link to update

FTTIR

Department for Education v Information Commissioner and another (EA/2014/0017) (24 June 2014)

The FTTIR ordered the Department for Education (DfE) to disclose internal investigations carried out by its free schools team into Steiner schools.

The FTTIR ruled that the section 35 exemption was engaged, but it was persuaded that the balance of the public interest lay in favour of disclosure. It agreed with the IC that free schools were a radical new policy and that there should be transparency over how the DfE engaged with schools with a special philosophical or religious element in relation to this new policy, in order to allow a fully informed debate. The FTTIR further ruled that the section 43 exemption was not engaged, since there was no evidence of actual or potential commercial damage and an applicant could issue a robust response to mitigate any damage.

DfE ordered to disclose free school investigations under FOIA (FTT(IR)).

ICO

ICO: decision notice FS50492483

The ICO required the Department for Education (DfE) to disclose withheld information relating to its decision to refuse funding for Sandwell Council's Building Schools for the Future (BSF) programme in 2011.

The complainant had requested information relating to the DfE's decision to refuse it BSF funding in 2012, but the DfE refused to provide the information relying on sections 35(1)(a) and section 42 of the FOIA. Following an internal review, the DfE instead concluded that the exemption under section 36 of FOIA applied. The complainant took their complaint to the ICO.

The ICO required the information held under section 35 to be disclosed (aside from any information that fell under section 40(2) (personal data exemption)) and that:

  • The section 35 exemption was engaged and the public interest in disclosure outweighed the public interest in maintaining the exemption. The termination of the BSF programme had attracted a considerable amount of public interest and concern over how it would impact on the quality of school provision, which warranted disclosure.
  • The section 42 exemption was engaged but the importance of ensuring openness between client and lawyer meant that the exemption should be maintained despite the public interest in disclosure.
  • The section 36 exemption was not engaged (despite concern from the DfE that, even though considerable time had passed, disclosure of the information could have a "chilling effect" on the frankness and candour of policy-makers and could impact on similar future exercises).

ICO requires DfE to disclose reasons for decision to refuse funding for Sandwell Council's BSF programme

FTTIR

Cabinet Office v Information Commissioner (EA/2013/0119)

The FTTIR ruled that, under the FOIA, the Cabinet Office must publish the number of times that a Cabinet sub-committee had met. Although the FOIA section 35 "government policy" exemption was engaged on the facts, the public interest was in favour of publication.

The FTTIR stressed that its ruling did not "open the floodgates" for requests for more information about the RRC's meetings, which would have to be considered separately. The case shows that the FTTIR will not necessarily refuse disclosure of information about committees if disclosure may prompt public speculation.

FOIA: Cabinet Office must disclose number of times Cabinet sub-committee has met (FTT(IR)) (www.practicallaw.com/2-550-6277)

UT

The Cabinet Office v The Information Commissioner and Gavin Aitchison [2013] UKUT 526 (AAC)

On 21 October 2013, the UT upheld the decision of the FTTIR that information about the take-over of Rowntree Mackintosh by the Nestlé group of companies in 1988 should be disclosed.

The UT found that, when balancing the public interest, the FTTIR had been entitled to take into account the changing government policy towards disclosure of historical records, which will enable the public to access records 20 years after their creation instead of 30 years.

FOIA: Appeal against disclosure of Cabinet minutes dismissed (Upper Tribunal) (www.practicallaw.com/2-548-1026)

FTTIR

Department for Education v Information Commissioner and another (EA/2012/0136, 0166 and 0167)

The FTTIR upheld the IC's decision that information concerning all free school applications that had been made should be disclosed by the Department for Education.

The FTTIR was satisfied that the IC properly weighed the public interest in concluding that the information sought by the complainants should be disclosed (although considered that the IC was wrong to conclude that section 35 rather than section 36 of the FOIA 2000 was engaged).

Free school bids ordered to be disclosed (First-tier Tribunal (Information Rights)) (www.practicallaw.com/5-523-8056)

FTTIR

Cabinet Office v Information Commissioner [2012] EA/2011/0263

The Cabinet Office has failed in its appeal against a decision notice issued by the IC requiring the disclosure of information about cabinet discussions concerning the takeover of Rowntree Mackintosh by Nestlé in 1988. The decision supports the position that the convention of cabinet collective responsibility will not be an absolute bar to the disclosure of information under the FOIA.

Collective responsibility no bar to Rowntree sale disclosure under FOIA (First-tier Tribunal (Information Rights)) (www.practicallaw.com/6-522-0433)

FTTIR

Department of Health v Information Commissioner and another (EA/2011/0286 & 287)

The Tribunal held that one risk register relating to the Health and Social Care Bill must be disclosed, while another should not, even though both registers fell within the exemption for the formulation of government policy in section 35 of FOIA. The decision provides useful guidance as to how the tribunal will approach the question of whether the public interest lies in maintaining an exemption or disclosing information

FOIA: Tribunal finds that public interest requires disclosure of one Health and Social Care Bill risk register but not another (First-tier Tribunal) (www.practicallaw.com/2-518-8897)

High Court

HM Treasury v the Information Commissioner (2009) EWHC 1811 (Admin)

The High Court quashed the IT's decision that section 35(3) of FOIA did not exempt the Treasury from confirming or denying whether it held Law Officer's advice.

The court held that the tribunal had erred in considering how to approach the strength of the public interest in maintaining the exemption by, among other things, failing to realise that Parliament intended that real weight should be given to the government convention (set out in the Ministerial Code) that disclosure of the fact and content of a Law Officer's opinion was subject to his consent and that this convention had been preserved by FOIA.

High Court quashes Information Tribunal decision concerning existence of law officer's advice (www.practicallaw.com/1-386-8163)

High Court

Department for Business Enterprise and Regulatory Reform (BERR) v Dermod O'Brien and another (2009) EWHC 164 (QB)

The High Court partially upheld an appeal against an IT decision ordering BERR to disclose various documents under FOIA. The court held that to overturn the IT's decision in respect of the public interest, it would be necessary to demonstrate an error of law in its approach to the issue and that BERR had failed to do so.

High Court allows BERR appeal against FOIA disclosure under legal professional privilege exemption (www.practicallaw.com/9-384-9651)

FTTIR

Makin v Information Commissioner (EA/2010/0080 & 81) (2011)

The FTTIR held that government policy is no longer be being developed or formulated once a Bill receives Royal Assent.

Formulation of government policy ends on Royal Assent (FTT (Information Rights)) (www.practicallaw.com/0-505-4648)

FTTIR

Cabinet Office v the Information Commissioner (EA/2010/0031) (2010)

The FTTIR rejected an appeal against a decision notice issued by the ICO and ordered the disclosure of the minutes of a Cabinet meeting. The IT accepted that the exemption in section 35(1)(b) of FOIA applied, and that Cabinet minutes are likely to be among the most sensitive documents created by central government. However, the IT also noted the exemption was qualified and not absolute and therefore Parliament contemplated that there may be circumstances in which the disclosure of such documents might be in the public interest. The IT found that the public interest did require the minutes to be disclosed.

Information Tribunal orders disclosure of Westland Cabinet minutes (www.practicallaw.com/0-503-3383)

FTTIR

Home Office v the Information Commissioner (EA/2010/0011) (2010)

The FTTIR held that a public body has the right to raise exemptions under FOIA for the first time before it and a tribunal is bound to consider them. This is different from the existing case law where tribunals have the discretion to refuse late reliance on FOIA exemptions and generally will tend to do so except in exceptional circumstances where the reliance is justified. However, even though the FTTIR accepted that section 35 was engaged, it found the public interest required the relevant information to be disclosed.

Public authority entitled to late reliance on FOIA exemptions (www.practicallaw.com/9-502-7085)

FTTIR

Crown Prosecution Service (CPS) v the Information Commissioner (EA/2009/0077) (2010)

The FTTIR has allowed an appeal of the CPS in part against a decision notice issued by the ICO. The FTTIR accepted that the exemption in section 35 was engaged, but found the public interest required the relevant information to be disclosed.

This case also considered the right of authorities to claim that new exemptions apply once a matter reaches the tribunal and concluded that it is at the discretion of the tribunal.

Tribunal rules on late claiming of FOIA exemptions (www.practicallaw.com/1-501-8853)

IT

Cabinet Office v the Information Commissioner (EA/2008/0024 and EA/2008/0029) (2009)

The IT upheld the ICO's decision, under FOIA, ordering the release in redacted form of Cabinet minutes relating to the March 2003 decision to take military action in Iraq. The IT held that the public interest in maintaining the confidentiality of the formal minutes of the two Cabinet meetings did not, at the time when the Cabinet Office refused a request for disclosure in April 2007, outweigh the public interest in disclosure. The IT recognised the importance of confidentiality of information of this sort, but held that this was an exceptional case, the circumstances of which brought together a combination of factors that were so important that, in combination, they created very powerful reasons why disclosure was in the public interest.

NOTE: On 25 February 2009, Jack Straw issued a certificate under section 53 of FOIA to veto disclosure of the Cabinet minutes (see Legal update, Government vetoes disclosure of Cabinet minutes on Iraq war (www.practicallaw.com/7-385-1089)).

Information Tribunal orders release of Cabinet minutes relating to military action in Iraq (www.practicallaw.com/3-384-8046)

IT

The Office of Government Commerce (OGC) v the Information Commissioner (EA/2006/0068 and EA/2006/0080) (2009)

The IT upheld the ICO's decision ordering the disclosure under FOIA of two Gateway reports by the OGC on the progress of the government's identity-card scheme, with the redaction of the names of certain participants. The IT held that the exemptions in both section 33 and section 35 were engaged. However, it ruled that the public interest in maintaining the exemptions did not outweigh the public interest in disclosure.

Information Tribunal orders disclosure of ID card status reports after High Court remits appeal (www.practicallaw.com/0-385-0941)

IT

Department of Business, Enterprise and Regulatory Reform (BERR) v the Information Commissioner and Friends of the Earth (EA/2007/0072) (2008)

The IT doubted the assertion made by BERR and the CBI that the risk of disclosure of records of meetings held in 2005 between the Department of Trade and Industry (as it then was) and the Confederation of British Industry (CBI) would lead to a loss of frankness and candour in their discussions. Accordingly, the IT held that although the exemptions contained in sections 35 and 36 of FOIA were engaged, the public interest in favour of disclosure outweighed that in favour of the maintenance of the exemptions.

Information Tribunal orders disclosure of meetings between BERR and CBI (www.practicallaw.com/1-381-4636)

IT

The Secretary of State for Work and Pensions (SSWP) v the Information Commissioner (EA/2006/0040) (2007)

The IT dismissed an appeal by the SSWP against the ICO's decision and ordered the disclosure of a redacted version of a feasibility study on the impact of identity cards. The parties agreed that the disputed information fell within the scope of the qualified exemption in section 35(1)(a) of FOIA. The IT concluded that the public interest in maintaining the exemption did not outweigh the public interest in disclosing the information, not least because the disputed information was produced after the government had taken the decision to introduce an identity card scheme.

Information Tribunal orders disclosure of feasibility study into identity cards (www.practicallaw.com/6-236-0021)

IT

The Department for Education and Skills (DFES) v the Information Commissioner and the Evening Standard (EA/2006/0006) (2007)

The IT upheld a decision of the ICO in which he concluded that minutes of meetings of the DFES fell within the qualified exemption in section 35(1) of FOIA, but that the public interest in maintaining the exemption did not outweigh the public interest in disclosure.

Information Tribunal orders DFES to disclose meeting minutes (www.practicallaw.com/8-236-0020)

ICO

The Complainant v the Home Office (FS50129487) (2009)

The ICO found that the Home Office correctly applied sections 35 and 36 of FOIA to a request for information. The request related to the Home Office's ban on membership of the British National Party for the police force. The ICO held that, while there was a strong public interest in the steps being taken to counter racial discrimination in the police force, this did not outweigh the disruption that disclosing the information would cause to government.

ICO backs Home Office refusal to release police BNP ban information (www.practicallaw.com/9-385-1045)

ICO

The Complainant v the Cabinet Office (CO) (FS50086299) (2007)

The ICO ruled that the CO correctly applied the exemption under section 35(1)(a) of FOIA, concerning the formulation or development of government policy, in withholding some information relating to meetings between the former Prime Minister and leading business executives. However, the ICO ruled that the background briefing materials should be disclosed, as the public interest in their disclosure, particularly in informing public debate, outweighed the public interest in maintaining the exemption.

ICO partially upholds Cabinet Office's response to FOIA request (www.practicallaw.com/3-375-8903)

Section 36: free and frank provision of advice or exchange of views within public authorities

Type of decision

Parties and reference

Summary

Link to update

FTTIR

Department for Education v Information Commissioner (EA/2013/0107 & 0108)

The First-tier Tribunal (Information Rights) has held that a request for information regarding the decision to dispose of school playing fields should be dealt with under the EIR 2004, instead of the FOIA 2000.

The Department for Education (DfE) refused the request, relying on the section 36 FOIA exemption covering the free and frank exchange of views within public authorities. The Information Commissioner ruled that the information must be disclosed under the EIR.

Discussions whether to sell school playing field must be disclosed under EIR, not FOIA (FTT(IR)) (www.practicallaw.com/3-546-2145)

FTTIR

Ian Helstrip v Information Commissioner and High Speed Two (HS2) Ltd (EA/2012/0201) (2013)

The FTTIR held that a FOIA application for information about a hardship scheme for those affected by the High Speed Two (HS2) rail link engaged section 36(2)(c) of FOIA. However, the public interest was in favour of disclosing the information.

Aggregation of public interest factors under different FOIA exemptions may be permissible (First-tier Tribunal (Information Rights)) (www.practicallaw.com/7-524-2972).

FTTIR

Department for Education v Information Commissioner and another (EA/2012/0136, 0166 and 0167)

The FTTIR upheld the IC's decision that information concerning all free school applications that had been made should be disclosed by the Department for Education.

The FTTIR was satisfied that the IC properly weighed the public interest in concluding that the information sought by the complainants should be disclosed (although considered that the IC was wrong to conclude that section 35 rather than section 36 of the FOIA 2000 was engaged).

Free school bids ordered to be disclosed (First-tier Tribunal (Information Rights)) (www.practicallaw.com/5-523-8056).

FTTIR

Uttlesford District Council v Information Commissioner (EA/2011/0269 & 0285)

The FTTIR upheld the council's appeal against the Information Commissioner's decisions that the council should disclose draft committee reports and e-mails between officers and members of the council on whether particular members were eligible to vote on a planning application. The request for disclosure of the e-mails, which addressed questions of probity, did not fall within regulation 12(5)(b) of the EIR and should have been considered under the FOIA. The tribunal was satisfied that the draft reports passing between the council and its legal adviser fell within the scope of legal professional privilege.

First-tier Tribunal holds that draft committee reports and e-mails between officers and members on probity issue exempt from disclosure (www.practicallaw.com/3-519-8476)

High Court

(1) The Home Office (2) The Ministry of Justice v the Information Commissioner (2009) EWHC 1611 (Admin)

The High Court upheld the IT's decision regarding a request for information about how the applicant's previous requests under FOIA had been handled. The IT held that section 36(2) of FOIA was engaged but that the public interest in disclosure outweighed that in maintaining the exemption.

High Court upholds Information Tribunal's decision on meta-requests under FOIA (www.practicallaw.com/3-386-3697)

FTTIR

Rob Edwards v the Information Commissioner (EA/2010/0056) (2010)

The FTTIR held that an appeal that had been rendered "academic" by the disclosure of the documents requested by the MOD, should be struck out and not be allowed to proceed.

"Academic" appeal struck out by Information Tribunal (www.practicallaw.com/9-504-1369)

FTTIR

Public and Commercial Services Union v the Information Commissioner (EA/2009/0123) (2010)

The FTTIR held that information relating to pay negotiation meetings held between the National Offender Management Service and the Public and Commercial Services Union was exempt information for the purposes of section 36 of FOIA and as the information could be relevant to future negotiations, the public interest of maintaining the exemption outweighed the public interest of disclosure.

Information Tribunal: pay negotiations with union should not be disclosed (www.practicallaw.com/1-503-9285)

IT

University of Central Lancashire (UCLAN) v the Information Commissioner and David Colquhoun (as an additional party) (EA/2009/0034) (2009)

The IT upheld a decision by the ICO that copies of course materials for a UCLAN degree were not exempt from disclosure under FOIA. The IT dismissed UCLAN's arguments that the course materials were exempt under section 43(2) and section 36(2)(c). In relation to section 36, the IT held that the opinion of the qualified person was not reasonable or reasonably arrived at.

Information Tribunal requires university to disclose course materials (www.practicallaw.com/5-500-9719)

IT

Foreign and Commonwealth Office (FCO) v the Information Commissioner (EA/2007/0047) (2008)

The IT ordered the disclosure of a previously unpublished draft of a government dossier on Iraq, subject to the redaction of manuscript amendments. The IT rejected the FCO's main argument on appeal, namely that the ICO had correctly held that the draft constituted exempt information under section 36(2) of FOIA but that he had been wrong to conclude that the public interest in maintaining that exemption did not outweigh the public interest in disclosure. The IT, concluded that the "chilling effect" of its disclosure would have been quite limited in 2005 because of the prior publication of the Hutton Report, which had placed a substantial amount of relevant information in the public domain and had provided a detailed description of the circumstances surrounding the preparation of the dossier. However, in the IT's opinion, disclosure of the draft might be capable of adding to the public's understanding of the issues in question.

Information Tribunal orders disclosure of draft government WMD dossier (www.practicallaw.com/0-380-4845)

IT

Guardian Newspapers Ltd and another v the Information Commissioner and the BBC (as an additional party) (EA/2006/0011 and EA/2006/0013) (2007)

The IT considered section 36(2) of FOIA and allowed the appeals of two journalists who had requested from the BBC copies of the minutes of the BBC's board of governors' meeting, after the publication of the Hutton report. The IT accepted that section 36(2)(b)(ii) applied but held that the public interest required disclosure.

Information Tribunal orders disclosure of post-Hutton minutes of BBC governors' meeting (www.practicallaw.com/9-212-5013)

ICO

The Complainant v Cornwall County Council (FS50302293) (2011)

The ICO held that Cornwall County Council was correct to hold that the exemptions in sections 36(2)(b)(ii) and (2)(c) applied to a request for a copy of a list of primary schools in Cornwall that were facing or may potentially face issues of financial sustainability.

ICO: Cornwall Council was right not to disclose list of primary schools with potential financial sustainability issues (www.practicallaw.com/4-504-9023)

ICO

The Complainant v the Hampshire County Council (Council) (FS50290043) (2011)

The ICO considered a request for a list of schools nominated by the Council for the government's Gaining Ground scheme. In the press, such schools have been referred to as "coasting". The ICO concluded that the Council was correct to conclude the list fell within the exemption set out in section 36. However, the ICO concluded that the public interest in disclosing the information outweighed that in maintaining the exemption and ordered the Council to disclose the list.

ICO decision notices in brief for week ending 26 January 2011 (www.practicallaw.com/0-504-5994)

ICO

The Complainant v the London Borough of Merton (LBM) (FS50252690) (2010)

The ICO ordered the LBM to disclose notes taken at a "Star Chamber" meeting held to identify where cuts in the LBM's budget could be made. The ICO accepted that the notes fell within the exemption set out in section 36(2)(b)(ii) but concluded that the public interest in disclosing the information outweighed that in maintaining the exemption.

ICO decision notice: notes of "Star Chamber" meeting must be disclosed (www.practicallaw.com/1-503-2627)

ICO

The Complainant v the London Borough of Haringey (LBH) (FS50234513) (2010)

The complainant requested a copy of the first Serious Case Review into the death of Peter Connelly (formerly known as "Baby P"). The ICO upheld LBH's view that the exemption under section 36(2)(b)(ii) was engaged and that the public interest in maintaining the exemption outweighed the public interest in disclosing the information in all the circumstances of the case.

ICO decision notice: Baby P serious case review is exempt from disclosure under FOIA (www.practicallaw.com/1-502-6589)

ICO

The Complainant v the Home Office (FS50131117) (2009)

The ICO found that the Home Office had incorrectly applied sections 31 and 43 of FOIA to a request for information about poor performance reviews in respect of two police forces. The ICO accepted that section 36 was engaged, but that the public interest in maintaining the exemption did not outweigh the public interest in disclosure.

ICO decision notices in brief for week ending 28 October 2009 (www.practicallaw.com/1-500-5803)

ICO

The Complainant v the Department of Health (DoH) (FS50149373, FS50149374 and FS50149375) (2009)

The ICO published three decision notices relating to the development of the MMR vaccination policy, each finding against the DoH. The requests, made under FOIA were for copies of minutes of three DoH committees' meetings, that cover the period in which the combined vaccine was introduced. The ICO found that the exemptions contained in sections 38, 40, 41 and 43 of FOIA did not apply. While the exemption contained in section 36 of FOIA did apply, the public interest test meant that the information requested should still be disclosed.

ICO critical of Department of Health in three adverse decisions relating to the MMR vaccine (www.practicallaw.com/5-384-6923)

ICO

The Complainant v the Home Office (FS50129487) (2009)

The ICO found that the Home Office correctly applied sections 35 and 36 of FOIA to a request for information. The request related to the Home Office's ban on membership of the British National Party for the police force. The ICO held that, while there was a strong public interest in the steps being taken to counter racial discrimination in the police force, this did not outweigh the disruption that disclosing the information would cause to government.

ICO backs Home Office refusal to release police BNP ban information (www.practicallaw.com/9-385-1045)

ICO

The Complainant v the Department for Business Enterprise and Regulatory Reform (BERR) (FS50080369) (2008)

The complainant requested the names and addresses of respondents in Employment Tribunal applications. The BERR refused to disclose the information citing section 36(c)(ii) of FOIA. The ICO found that the exemption in section 36 was engaged but the public interest in maintaining the exemption was outweighed by the public interest in disclosure of the information.

Deputy Information Commissioner orders publication of respondents' names and addresses (www.practicallaw.com/1-383-6172)

Section 40: personal data

Type of decision

Parties and reference

Summary

Link to update

FTTIR

Corke v Information Commissioner (EA/2014/0012) (3 June 2014)

The FTTIR has ruled that the Crown Prosecution Service (CPS) must publish information relating to its decisions not to prosecute Sir Cyril Smith (an MP who died in 2010) for offences against children dating back to the 1970s. The CPS refused to disclose the material in reliance on sections 30(1)(c), 40(2) and 42(1).

The ICO had upheld the CPS's refusal to disclose under sections 30(1)(c) and 40(2), due to the importance of maintaining a safe space for the CPS and police to consider prosecution decisions.

The FTTIR ruled that the public interest under section 30 lay in favour of disclosure, but with appropriate redactions made to the disclosed information to protect the personal data of living individuals, so that no objections on the grounds of personal data could arise.

FTT(IR) orders CPS to disclose information relating to decision not to prosecute historic child offences.

FTTIR

Benjamin Crompton v Information Commissioner, (EA/2014/0061) (29 May 2014)

The FTTIR has rejected an appeal against the refusal by Basingstoke and Deane Borough Council to disclose information (under section 40(2) of FOIA) about the participation of local councillors in the local government pension scheme and the employer contributions made in respect of them.

Information Tribunal holds Borough Council not obliged to disclose councillors' pension details.

FTTIR

Greg Callus v Information Commissioner/Home Office (Case EA/2013/0159) (2014)

The FTTIR upheld a decision of the IC that the Home Office correctly applied the personal data exemption under section 40(2) of the FOIA in order to refuse a request for details of individual police officers who were designated as single points of contact.

Information Tribunal holds Home Office not obliged to disclose details of police officers performing RIPA role

FTTIR

Brain v Information Commissioner and Ministry of Justice EA/2013/0127

The FTTIR has ruled on the Ministry of Justice's (MoJ) request to redact certain names of individual civil servants in various documents under section 40(2) of the FOIA. The appellant, Jonathan Brain, was a salaried employment judge, who had requested information relating to the government's response to recommendations made by the senior salaries review body that the role of salaried employment judges be re-graded. (The key aspect of the appeal concerned the exemption in section 35 of the FOIA relating to the formulation of government policy.)

The tribunal referred to the decision in Dun v Information Commissioner, EA/2010/0060, 18 January 2011, that there should not be a blanket approach to the redaction of non-senior civil servants (see Legal update, Information Tribunal rules more information about staff grievances at Foreign Office to be disclosed (www.practicallaw.com/7-504-5882)). It emphasised that it would normally expect to see details of the job title, grade and summary of the role, in order to justify the redactions. However, the tribunal concluded that the additional names were not of interest for the request and, in the interests of proportionality, was prepared to accept the MoJ's reliance on section 40(2), subject to a number of exceptions. The exceptions included the names of two senior MoJ civil servants, wherever they appeared, due to their public-facing roles. Similarly, in reference to matters referred to by the Lord Chief Justice, the tribunal said that even if such information could properly be regarded as personal data, it reflected his publicly stated position and it would not be a breach of data protection principles to disclose it

Information Tribunal considers redaction of civil servants' names in Ministry of Justice documents (www.practicallaw.com/0-558-7745)

Court of Appeal

Edem v Information Commissioner and Financial Services Authority [2014] EWCA Civ 92

The Court of Appeal has held that a person's name is personal data within the meaning of section 1(1) of the DPA 1998, unless it is such a common name that without further information, such as its use in a work context, a person would remain unidentifiable despite its disclosure.

The issue for the court was whether the names of three junior public authority employees amounted to personal data and, if so, whether they could be withheld under section 40(2) of the FOIA 2000 on the grounds that disclosure would contravene the first data protection principle of the DPA, that personal data be processed fairly and lawfully.

The court established that the facts in this case differed from those in Durant and that Auld LJ's two notions in Durant were not applicable here. In this case, as the information was obviously about the individuals, it was sufficient to rely on the definition in section 1(1) of the DPA and no further assessment was needed. This is in accordance with the Information Commissioner's technical guidance on determining what is personal data. This decision lends further weight to jurisprudence that the test in Durant is limited to a particular factual scenario.

Court of Appeal finds a person's name is personal data (www.practicallaw.com/5-557-2906)

FTTIR

Goldsmith International Business School v Information Commissioner, Case EA/2013/0190

The FTTIR has held that the Information Commissioner correctly applied the personal data exemption under section 40(2) of the FOIA 2000 when he decided that the Home Office did not have to disclose details of two of its immigration decisions following an information request from Goldsmith International Business School. The school was trying to discover the reasons for refusal of visas to prospective overseas students, and it made its request not only as a member of the public, but also as a Tier 4 sponsor of migrants. The college was also pursuing judicial review proceedings in relation to a Home Office decision to set its sponsor quota to zero.

The college had argued that the disclosure was necessary for compliance with its legal obligations and the administration of justice, but the tribunal rejected this, saying that there had already been documentary disclosure in the course of the judicial review proceedings, so that disclosure of the requested information was not legally required for those purposes. For the same reason, the disclosure was not necessary to enable the college to pursue legitimate interests connected with the judicial review.

The tribunal also noted that anonymisation of the data would not be sufficient to protect the privacy of the individuals concerned, as there were only two of them and they were therefore identifiable to the college, and commented that the college could have obtained the prospective students' consent to disclosure when they applied to study there.

First-tier Tribunal holds Home Office not obliged to disclose details of visa refusals (www.practicallaw.com/8-555-9786)

FTTIR

Foster v Information Commissioner, Case EA/2013/0176

The FTTIR allowed an appeal against a decision of the Information Commissioner refusing under section 40(5)(b)(i) of the FOIA to confirm or deny whether it held the names of witnesses interviewed at a hearing of a committee of the Nursing and Midwifery Council investigating a complaint about the conduct of a nurse on a care team responsible for the treatment of a patient who died following a clinical trial.

The Information Commissioner had decided that, on balance, the giving of a confirmation or denial would breach the individual's rights in his or her personal data. However, the tribunal ruled that the disclosure under FOIA of the existence of a complaint of professional misconduct against an individual where there was no finding of wrongdoing was not always unfair and therefore a breach of the data protection principles.

First-tier Tribunal rules disclosure of complaint under FOIA not always unfair where no wrongdoing (www.practicallaw.com/8-554-3856)

FTTIR

Christopher Colenso-Dunne v Information Commissioner, EA/2012/0039

The FTTIR ordered the Information Commissioner's Office to disclose the names of the journalists (referred to in its "What price privacy" report) who had instructed private investigators involved in the illegal trade of personal information, finding that it was not exempt from disclosure under the FOIA.

The tribunal agreed that the identity of any individual journalist constituted his or her personal data, but held that it was not "sensitive personal data" within the meaning of the DPA, as it was not information about the commission or alleged commission of any offence by the journalist. It also concluded that the information was not exempt from disclosure under section 40(2) of the FOIA as there was a legitimate public interest in disclosure.

Information Tribunal orders ICO to disclose names of journalists in its "What price privacy" report (www.practicallaw.com/3-550-6465)

FTTIR

Chapman v Information Commissioner, Case EA/2013/0073

The FTTIR ruled that HS2 Ltd was not required to disclose a full organisation chart showing staff names in response to a FOIA request, since disclosure of the names would breach the first data protection principle, so that the personal data exemption under section 40(2) of the FOIA applied.

Information Tribunal rules on FOIA request for HS2 Ltd organisation chart (www.practicallaw.com/6-550-2545)

FTTIR

Benjamin Gaule v IC (Freedom of Information Act 2000) [2013] UKFTT EA_2013_0158 (GRC)

The FTTIR ruled that the Crown Prosecution Service need neither confirm nor deny whether it held any information about police officers' own past criminal convictions under section 40(5) of the FOIA, since disclosure would breach the Data Protection Principles.

The FTTIR ruled that the applicant had no legitimate interest in disclosure of the personal data, under the DPA. It decided that the request was fanciful and could have no bearing on the applicant's offences or sentence.

CPS need neither confirm nor deny police officers' own criminal records requested under FOIA by prisoner (First-tier Tribunal) (www.practicallaw.com/6-549-3739)

High Court

R (Kelway) v The Upper Tribunal and Northumbria Police (Administrative Appeals Chamber) and Independent Police Complaints Commission [2013] EWHC 2575 (Admin)

The High Court has refused permission to apply for judicial review of two Upper Tribunal decisions on the basis that there was no reasonable prospect of success. Northumbria Police had refused Dr Kelway's requests for copies of witness statements (some of which contained third party sensitive personal data) under section 40(1) of the FOIA 2000 and the DPA. The court commented that Durant v Financial Services Authority [2003] EWCA Civ 1746 is the leading authority on the meaning of personal data, but that it is limited to a particular factual scenario and is one of a number of tests that may be applied in determining whether information is personal data.

The court also confirmed that it is for the organisation in receipt of the request for information to decide which regime is appropriate and not the requester.

High Court gives guidance on personal data (www.practicallaw.com/3-545-1585)

FTTIR

Wears v Information Commissioner (EA/2013/0057)

The FTTIR has dismissed an appeal against a refusal by the Department for Work and Pensions (DWP) to disclose details of whether certain named people were on benefits at a particular time. The FTTIR agreed that DWP's refusal was an accurate reflection of the law and to disclose the requested information in this instance would amount to unfair processing.

Appeal dismissed against refusal by DWP to disclose if lodgers were on benefits (FTT(IR)) (www.practicallaw.com/9-546-4467)

FTTIR

Henderson v Information Commissioner (EA/2013/0055)

The FTTIR upheld an appeal against a decision notice published by the IC and required a local authority to disclose full details of a Building Regulations application to the applicant's neighbour.

Full details of Building Regulations application must be disclosed (FTT(IR)) (www.practicallaw.com/8-541-7990)

FTTIR

London Borough of Barnet v Information Commissioner and another (EA/2012/0261)

The FTTIR held that disclosing details of a job title held by more than one local authority official could constitute processing personal data.

Job title held by more than one official can still be personal data (FTT(IR)) (www.practicallaw.com/2-542-0146)

FTTIR

Innes v Information Commissioner (EA/2013/0044) (2013)

The FTTIR ruled that the reasons for a headteacher's long-term sickness absence from his school did not have to be disclosed under the FOIA as they constituted personal data, but whether the headteacher was being paid a salary during his absence must be disclosed.

Payment during, but not reasons for, sick leave must be disclosed (First-tier Tribunal (Information Rights)) (www.practicallaw.com/8-537-3745).

FTTIR

Yiannis Yoyias v Information Commissioner (EA/2013/0003) (13 August 2013)

The FTTIR held that the London Borough of Camden and the IC had been correct in relying on the exemption in section 40(2) of the FOIA in the council's refusal to disclose hours worked and overtime paid to its employees, because disclosure, taken with other information which had already been released, would have meant disclosing personal information in contravention of the DPA 1998.

Council not obliged to disclose hours worked and overtime payments (First-tier Tribunal (Information Rights)) (www.practicallaw.com/9-537-7125).

FTTIR

A v Information Commissioner and others (EA/2013/0014) (2013)

The FTTIR upheld the IC's decision that information concerning the General Medical Council (GMC)'s handling of a complaint against a doctor was exempt from disclosure under section 40(2) of the FOIA and that the GMC was entitled to issue a "neither nor deny" response to the information requested.

Information Tribunal confirms General Medical Council could withhold information about complaint against doctor (www.practicallaw.com/0-536-6386).

FTTIR

White v IC (Freedom of Information Act 2000) (EA/2012/0238) (2013) UKFTT 2012_0238 (GRC)

The FTTIR held that Carmarthenshire County Council must disclose, under the FOIA, a list of the dog breeders that it regulates. The tribunal ruled that section 40(2) of FOIA (which states that personal data may be exempt from disclosure) did not outweigh the public interest in disclosure, as licensing is a public regulatory process.

List of publicly-regulated dog breeders held to be disclosable under FOIA (First-tier Tribunal (Information Rights)) (www.practicallaw.com/7-526-7665)

FTTIR

Dicker v Information Commissioner, Case EA/2012/0250 (2013)

The FTTIR has held that Surrey Primary Care Trust must comply with a freedom of information request to disclose the precise salary and benefits paid to its Chief Executive Officer over a three-year period. The public authority had sought to rely on the exemption for personal data under section 40(2) of the FOIA.

Information Tribunal orders disclosure of exact salary of public servant (www.practicallaw.com/1-527-2330)

FTTIR

Patricia Cialfi v Information Commissioner, EA/2012/0183 (2013)

The FTTIR has held that details of staff who attended leadership training courses constituted personal data and that Sheffield Hallam University was entitled under section 40(2) of the FOIA to redact such details when complying with a request for information

Information Tribunal holds university could withhold details of leadership training course attendees under personal data exemption (www.practicallaw.com/0-524-1099)

ICO

Stoke-on-Trent City Council

The ICO has imposed a fine of £120,000 for a serious breach of the Data Protection Act 1998 that led to sensitive information about a child protection legal case being e-mailed to the incorrect recipient. The breach occurred when 11 e-mails were sent by a solicitor at Stoke-on-Trent City Council to the wrong address. The e-mails included highly sensitive information relating to the care of a child and further information about the health of two adults and two other children. The ICO ruled that a monetary penalty was appropriate, given that the solicitor was in breach of the council's own guidance that sensitive data should be sent over a secure network or encrypted.

ICO fines council for sending unencrypted e-mail to incorrect recipient (www.practicallaw.com/4-522-1805)

FTTIR

Roberts v Information Commissioner, EA/2012/0032

The FTTIR has ruled that Dyfed Powys Police Authority was wrong to refuse a request for certain information held by the authority concerning the selection process for the appointment of a chief constable under section 40(2) of the FOIA. There were two candidates for the position; the appellant was the one who was not appointed. The FTTIR considered that there was substantial public interest in the integrity of the selection procedure for any public office, particularly one as responsible and politically sensitive as chief constable; this was of considerable weight in deciding whether the disclosure was fair.

Information Tribunal rules information about appointment of chief constable not exempt from disclosure under FOIA (www.practicallaw.com/5-521-8789)

UT

Rob Evans v Information Commissioner [2012] UKUT 313 (AAC)

The UT, overturning the Information Commissioner's decision, has held that advocacy correspondence between Prince Charles and government ministers in 2004 and 2005 was disclosable under the FOIA. In broad terms its ruling was that, although there were cogent arguments for non-disclosure, the public interest benefits of disclosure of advocacy correspondence falling within the claimant journalist's requests generally outweighed the public interest benefits of non-disclosure. Consequently, there was no exemption from disclosure under sections 37(1), 40(2) and 41 of the FOIA.

Note: The UT later held in February 2013 that lists and schedules of advocacy correspondence between Prince Charles and government ministers from 2004 and 2005 were disclosable under the FOIA.

Upper Tribunal rules advocacy correspondence between Prince Charles and ministers disclosable under FOIA (www.practicallaw.com/7-521-5290)

February 2013 decision: Upper Tribunal rules correspondence lists between Prince Charles and ministers disclosable under FOIA (www.practicallaw.com/6-524-3378).

FTTIR

Trago Mills (South Devon) Ltd v Information Commissioner EA/2012/0028

The FTTIR has upheld a decision of the Information Commissioner that a local authority was right not to disclose the details of a former employee's compromise agreement in response to a freedom of information request. The FTTIR found that the requested information fell within the exemption in the FOIA dealing with personal data. There was no public interest in the terms of the employee's compromise agreement despite the fact that he was a senior decision-maker in a public-facing role. The employee's reasonable expectation of privacy in the terms of his departure outweighed the local authority's duty to be accountable for the expenditure of public money.

Compromise agreement exempt from Freedom of Information request (FTT) (www.practicallaw.com/9-521-2002)

UT

Information Commissioner v Magherafelt District Council [2012] UKUT 263 (AAC)

The UT has held that a council's summarised schedule of disciplinary action taken against 15 of its employees was exempt from disclosure under section 40(2) of the FOIA. Although it found that the First-tier Tribunal had been wrong on its interpretation of the law, which had lead it to conclude that the schedule amounted to personal data, it found that there was a second basis upon which the definition of personal data in section 1(1)(b) of the Data Protection Act 1998 could be satisfied. The decision is interesting as it considers the difficult issue of anonymised data and whether it falls within the definition of personal data which remained unresolved following the House of Lords' decision in Common Services Agency v Scottish Information IC [2008] UKHL 47.

Upper Tribunal confirms summarised schedule of disciplinary action exempt from disclosure under FOIA (www.practicallaw.com/5-521-3329)

FTTIR

Bousfield v Information Commissioner and others, EA/2011/0212, EA/2011/0213, EA/2011/0247, EA/2011/0250, EA/2011/0251, EA/2011/0252, 28 May 2012.

The FTTIR has upheld the Information Commissioner's decision in six appeals that six hospital trusts were not required to disclose the details of doctors' compromise agreements, which contained personal data and were exempt from disclosure under section 40(2) FOIA. In some cases the trust had refused to confirm or deny whether it had any agreements, in others they had been disclosed but in redacted form. The tribunal confirmed that the disclosure of the information would contravene the first data protection principle as it would not be fair, taking into account the doctors' reasonable expectations and whether it would cause damage or distress, as well as the public interest in transparency and accountability. It commented that it was not uncommon for there to be a confidentiality clause in compromise agreements which could be relevant when considering their reasonable expectation of privacy. It held that it had no jurisdiction to decide whether such clauses were void.

Information Tribunal confirms NHS Trusts not required to disclose details of doctors' compromise agreements (www.practicallaw.com/8-520-4045)

FTTIR

John Morley v Information Commissioner, EA/2011/0173, 31 May 2012

The FTTIR overturned in part the decision of the Information Commissioner that the names of youth councillors (including minors) were personal data which was exempt from disclosure under section 40(2) of the FOIA. After the Council refused a request for names relating to a planning application, it was realised some of the names were on Facebook. The tribunal held that disclosure of the names of the councillors who were on Facebook would not be unfair and breach the first data protection principle; such councillors had chosen to make the information available in a widely used and easily accessible social-networking website, without placing any restrictions on use. There was a legitimate public interest in disclosure.

Information Tribunal rules that youth councillors names disclosable as on Facebook (www.practicallaw.com/5-519-8753)

FTTIR

Edem v Information Commissioner and FSA, EA/2011/0132 (2012)

The Tribunal ruled on a FOIA request to the Financial Services Authority (FSA) and partially allowed an appeal against the Information Commissioner's decision. The tribunal ruled that the disputed information simply disclosed the fact that three individuals had been employed by the FSA and had been engaged in the regulation of a certain financial institution. It did not adversely affect their privacy and was not, therefore, personal data under section 40(2) of the FOIA.

Information Tribunal rules on personal data exemption in FOIA request to FSA (www.practicallaw.com/3-518-9778)

FTTIR

Peter Bolton v Information Commissioner and another, EA/2011/0216 (2012)

The Tribunal partly allowed an appeal from a decision of the Information Commissioner that a local authority had been entitled to withhold the personal data of applicants for a senior role within the authority on the basis that disclosure would have breached the first data protection principle. The Tribunal held that the authority should have disclosed personal data relating to the role of senior (not junior) council employees and councillors in the recruitment process.

First-tier Tribunal rules on disclosure of council CEO's job application (www.practicallaw.com/5-518-7212)

High Court

R (Department of Health) v the Information Commissioner (2011) EWHC 1430 (Admin)

The High Court upheld a previous IC decision, which held that "ground E" abortion statistics could not be considered personal information under the DPA and, therefore, were not exempt from disclosure under section 40 of the FOIA.

The High Court held that, even though the DoH held additional information, which if disclosed, would enable the identification of individuals who had ground E abortions, the statistics alone could not amount to personal data.

"Ground E" abortion statistics are not personal data under DPA and not exempt under FOIA (High Court) (www.practicallaw.com/7-506-5667)

High Court

Corporate Office of the House of Commons v the Information Commissioner (2008) EWHC 1084 (Admin)

Upholding a decision of the IT, the High Court dismissed an appeal on behalf of certain MPs who resisted disclosing personal data (and in particular their private addresses) in response to information requests under FOIA. The High Court found that the IT had given proper weight to MPs' expectations of keeping such information private. The High Court added that anyone who wanted to find out the information from existing sources would probably have little difficulty in doing so, and that in light of the flaws in the current system of accounting for such expenses, there was a pressing public interest in their disclosure.

High Court dismisses appeal against disclosure of MPs' accommodation details (www.practicallaw.com/7-381-9773)

UT

All Party Parliamentary Group on Extraordinary Rendition v the Information Commissioner and another (2011) UKUT 153 (AAC)

The UT ordered the Ministry of Defence to disclose information relating to the extraordinary rendition of prisoners following a request made under the FOIA. The UT has questioned the previous UT decision in DEFRA v Information Commissioner and another [2011] UKUT 39 (AAC), which found that public authorities were entitled as of right to raise exemptions under the FOIA for the first time when a matter reached tribunal stage.

The decision in APG also found that the exemption in section 12 of FOIA should be claimed when a request is first responded to and that the disclosure of anonymised data that would not allow people (other than the disclosing authority) to identify individuals does not constitute the processing of personal data and does not attract the exemption in section 40 of FOIA.

Further confusion on late claiming of exemptions as MOD ordered to disclose information on extraordinary rendition (Upper Tribunal) (www.practicallaw.com/6-505-9394)

FTTIR

Montague v the Information Commissioner (EA/2011/0177) (2012)

The FTTIR has dismissed an appeal in which the appellant called for the disclosure of information relating to donations to the Global Warming Policy Foundation (GWPF) (a climate change think tank).

The FTTIR dismissed the appeal holding that section 40(2) did apply and after considering the conditions in section 40(3) of FOIA (relating to the contravention of any data protection principles) it was clear that there was no evidence that consent had been given by the donor to the disclosure of their identity.

Appeal for disclosure of information about donations to Global Warming Policy Foundation dismissed (FTT(IR)) (www.practicallaw.com/1-518-3367)

FTTIR

Cobain v the Information Commissioner and another (EA/2011/0112 and 0113) (2012)

The FTTIR has ruled that certain information requested by a Guardian journalist from the Crown Prosecution Service concerning the 1998 prosecution of Nick Griffin, the British National Party leader, under the Public Order Act 1986 was not exempt from disclosure under the personal data exemption contained in section 40(2) of the FOIA.

Information Tribunal rules on FOIA request for disclosure of Nick Griffin's personal data (www.practicallaw.com/0-517-9667)

FTTIR

Greenwood v the Information Commissioner and another (EA/2011/0131 and 0137) (2011)

The FTTIR has held that a register of interests of senior council officers held by Bolton Metropolitan Borough Council must be disclosed, following a request made under the FOIA.

Register of officers' interests must be disclosed (First-tier Tribunal) (www.practicallaw.com/8-518-1237)

FTTIR

Smith v the Information Commissioner and another UKFTT (EA/2011/0006) (GRC) (2011)

The FTTIR has upheld a previous IC decision, holding that Devon and Cornwall Constabulary was not required to disclose certain pieces of personal information under the personal data exemption (section 40(2)) of the FOIA. The information requested related to which teaching staff at schools in the area had been investigated, cautioned or charged under the Sexual Offences Act 2003.

Information on teaching staff investigated for sexual offences falls under section 40(2) FOIA exemption (FTT(IR)) (www.practicallaw.com/3-508-2975)

FTTIR

T W Gibson v the Information Commissioner, (EA/2010/0095) (2011)

The FTTIR held that Craven District Council had to disclose the financial details of its former Chief Executive Officer's compromise agreement as these concerned the use of public funds. The tribunal agreed that most of the information in the agreement was exempt from disclosure under section 40(2), as there was a strong expectation of privacy in relation to a compromise agreement and as a result disclosure would be unfair. However, it did not consider it reasonable for the ex-CEO or the council to expect that the information in the agreement relating to the use of public funds could be hidden from the public on the basis of a confidentiality clause agreed between them.

Information Tribunal rules that compromise agreement between council and ex-CEO partially disclosable (www.practicallaw.com/8-504-9653)

FTTIR

John Pycroft v the Information Commissioner, (EA/2010/0165) (2011)

The FTTIR upheld the ICO's decision that Stroud District Council did not have to disclose its former housing director's early retirement package as it was exempt from disclosure under section 40(2).

Information Tribunal rules that council director's early retirement package not disclosable (www.practicallaw.com/2-504-8190)

FTTIR

Dun v the Information Commissioner and another (EA/2010/0060) (2011)

The FTTIR ruled that the National Audit Office (NAO) had to disclose records of employee grievances made against the Foreign and Commonwealth Office (FCO), which the NAO reviewed as part of its investigation. The ICO had held that the records were exempt from disclosure under section 40(2) of FOIA, but the FTTIR held that, as they were redacted, only those who made a complaint, were the subject of a complaint or processed a complaint would be able to identify any of the parties involved. Further, these categories of people would not learn anything new from the disclosure of the redacted information.

Tribunal rules that information about personal grievances at the FCO should have been disclosed under FOIA (www.practicallaw.com/5-504-5963)

FTTIR

Davis v the Information Commissioner (EA/2010/0024) (2011)

The FTTIR partially upheld the ICO's decision as to whether information about the performance-related payment scheme applying to senior board members of the Olympic Delivery Authority fell within the personal data exemption under section 40 of FOIA, but ordered disclosure of some of the requested information.

Information Tribunal orders partial disclosure of ODA board's performance-related payment scheme (www.practicallaw.com/6-504-3992)

FTTIR

Andrew Bousfield v the Information Commissioner and another (EA/2009/0113) (2010)

The FTTIR upheld the ICO's decision that a hospital trust was not required to disclose a doctor's details in a settlement agreement, which had already been disclosed in redacted form, as the information was exempt from disclosure under section 40(2) of FOIA.

Information Tribunal confirms NHS Trust not required to disclose doctor's details in settlement agreement (www.practicallaw.com/8-503-9102)

FTTIR

David Cox v the Information Commissioner (EA/2010/0092) (2010)

The FTTIR upheld the ICO's decision that the Insolvency Service was not required to disclose its assessment of a director's actions within an insolvent company, known as a "D return", as the assessment was exempt from disclosure under section 40(2) of FOIA.

Information Tribunal confirms Insolvency Service not required to disclose its assessment of a director (www.practicallaw.com/2-503-9082)

FTTIR

Guardian Newspapers Ltd v the Information Commissioner (EA/2010/0070) (2010)

The FTTIR upheld the ICO's decision that information requested from Ofsted concerning disqualified persons was exempt from disclosure under section 40(2) of FOIA. The information requested included details about Ofsted's decisions to waive disqualifications from working in childcare. The FTTIR confirmed that the disclosure of the information would contravene the first data protection principle as its disclosure would not be fair and lawful, and because none of the conditions in Schedule 2 to the Data Protection Act 1998 were satisfied.

Information Tribunal confirms Ofsted not required to disclose information concerning disqualified persons (www.practicallaw.com/6-503-8561)

FTTIR

Thomas Wilson v the Information Commissioner (EA/2009/0082) (2010)

The FTTIR upheld the ICO's decision that despite a public authority's duty under section 19 of FOIA to adopt and maintain a publication scheme, it was possible for there to be exempt information within a class of information listed in an authority's publication scheme. The Council was entitled to rely on the exemption from disclosure contained in section 40(2) in relation to a request for specified bank statements, disclosure of which would breach a compromise agreement entered into between the Council and a former employee, following the termination of her employment.

Information Tribunal rules that Council not bound to reveal financial information contained in its publication scheme (www.practicallaw.com/3-502-5701)

FTTIR

Joanna Bryce v the Information Commissioner and Cambridgeshire Constabulary (as an additional party) (CC) (EA/2009/0083) (2010)

The FTTIR allowed, in part, an appeal from the ICO's decision that information in a police report of an inquiry, following the conviction of an offender for killing his wife, was exempt from disclosure under FOIA. The FTTIR rejected CC's argument that the all of the information was exempt under section 40(2) and found that in most cases condition 6 of Schedule 2 or condition 5 of Schedule 3 of the Data Protection Act 1988 was met and the processing of the information was fair, so the exemption was not engaged.

First-tier Information Tribunal orders partial disclosure of police report under FOIA (www.practicallaw.com/9-502-5152)

FTTIR

Roberts v the Information Commissioner (EA/2009/0035) (2010)

The FTTIR rejected an appeal against a decision notice published by the ICO finding that the Department for Business, Innovation and Skills (BIS) had not been obliged to provide certain information about the creators of documents held within a BIS database due to the information being exempt under section 40 of FOIA.

Information Tribunal: when will disclosure of personal information under FOIA be lawful? (www.practicallaw.com/5-502-4319)

IT

William Thackeray v the Information Commissioner and General Medical Council (as an additional party) (GMC) (EA/2009/0063) (2009)

In a case concerning information about a former panellist on the GMC, the IT, overturning the ICO's decision, held that condition 6 of Schedule 2 of the Data Protection Act 1988 was met and therefore the exemption for third party data in section 40(2) of FOIA was not engaged.

First-tier Information Tribunal orders General Medical Council to disclose information about panellist under FOIA (www.practicallaw.com/1-501-5944)

IT

Guardian News and Media Limited (GNM) v the Information Commissioner (EA/2008/0084) (2009)

The IT dismissed an appeal by GNM against a decision of the ICO following the newspaper's unsuccessful request for information on disciplinary action taken by the Lord Chancellor against the judiciary. The newspaper had contested the ICO's finding that the information requested was exempt under section 40 of FOIA. The IT upheld the ICO's reliance on section 40.

Information Tribunal rejects Guardian's appeal relating to information on judiciary (www.practicallaw.com/5-386-5365)

IT

Tony Harcup and Yorkshire Forward (YF) v the Information Commissioner (EA/2007/0058) (2008)

The IT partially allowed an appeal against the ICO's decision that YF was entitled to withhold the names of delegates who had attended events or corporate hospitality organised by it. The IT rejected the ICO's finding that such information amounted to "personal data" under section 40 of FOIA and was exempt from disclosure. The IT held that, taking into account the two factors of biographical significance and focus identified in Durant v Financial Services Authority [2003] EWCA Civ 1746, the disclosure of the names of those attending YF events did not involve the release of personal data.

Information Tribunal rules on disclosure of delegates at corporate events (www.practicallaw.com/6-380-7657)

IT

Department of Business, Enterprise and Regulatory Reform (BERR) v the Information Commissioner and Friends of the Earth (EA/2007/0072) (2008)

The IT ruled that BERR had to disclose records of meetings held in 2005 between the Department of Trade and Industry (as it then was) and the Confederation of British Industry (CBI), subject to redaction of certain material.

Information Tribunal orders disclosure of meetings between BERR and CBI (www.practicallaw.com/1-381-4636)

IT

London Borough of Camden (LBC) v the Information Commissioner (EA 2007/0021) (2007)

The IT allowed an appeal by the LBC against a decision notice of the ICO requiring it to disclose the names and other identifying information of individuals who had been subject to anti-social behaviour orders. The IT held that such disclosure would amount to unfair processing of personal data and that it was not warranted, because the benefit it would provide to serious journalistic research was outweighed by the damage that would be done by belated publicity.

Information Tribunal allows local authority's appeal against disclosure of ASBO information (www.practicallaw.com/3-379-9381)

IT

Rob Evans and the Ministry of Defence (MoD) v the Information Commissioner (EA/2006/0027) (2007)

The IT dismissed an appeal by the MoD against the ICO's decision ordering the disclosure of the staff directory of the Defence Export Services Organisation, part of the MoD, to a journalist. It rejected the MoD's arguments that the directory was exempt from disclosure under section 40 of FOIA. Although the IT accepted that the information constituted personal data under the Data Protection Act 1998, it concerned the staff members' public lives and activities, not their private lives. However, the IT held that the names of junior members of staff should be redacted, as should the telephone numbers and e-mail addresses of all staff, unless they had been disclosed elsewhere.

Information Tribunal dismisses MoD's appeal over disclosure of staff directory (www.practicallaw.com/8-375-8910)

IT

Mr C P England and London Borough of Bexley v the Information Commissioner (EA/2006/0060 and EA/2006/0066) (2007)

The IT ruled that the addresses of vacant residential properties owned by individuals, which had been requested from a council under FOIA, were exempt from disclosure under section 40. The IT concluded that once the addresses of the empty properties had been identified, it was likely that the identity of the owners could be traced. The disclosure of the addresses would not be permitted under the Data Protection Act 1998 because, among other things, the prejudice to the rights and legitimate interests of the owners, due to the risk of crime against empty properties and loss of property value, outweighed the applicant's legitimate interest in disclosure.

Information Tribunal rules addresses are exempt under section 40 of the FOIA (www.practicallaw.com/6-360-4952)

IT

Lancashire County Council (Council) v the Information Commissioner (EA/2006/0047) (2007)

The IT ruled that redacted information relating to traders successfully prosecuted for selling alcohol to under-age children, which had been requested from the Council under FOIA, was exempt from disclosure under section 40. The IT held that the information to be produced should not include the names, addresses, business or trading names, contact details and dates of birth of any individuals who were the subject of the prosecutions.

Information Tribunal rules redacted information identifying data subjects is exempt under FOIA (www.practicallaw.com/3-362-7021)

IT

The Corporate Officer of the House of Commons (HoC) v the Information Commissioner, and Norman Baker MP (as an additional party) (EA/2006/0015 and EA/2006/0016) (2007)

The IT ordered the HoC to disclose a detailed breakdown of the already published aggregate figure for travel claims by MPs. The HoC had refused the original requests for information as it believed that it was exempt from disclosure under section 40. The IT upheld the ICO's decision notices, finding that the HoC should disclose the disputed information.

Information Tribunal orders disclosure of MPs' travel expenses (www.practicallaw.com/9-212-7026)

IT

Edwin Alcock v the Information Commissioner and Chief Constable of Staffordshire Police (as an additional party) (EA/2006/0022) (2007)

The IT upheld a decision of the ICO and concluded that information provided by a police informant on an expressly confidential basis was covered by the exemption in section 40 of FOIA.

Information Tribunal considers exemptions for information supplied by police informant (www.practicallaw.com/7-211-3167)

IT

A v the Information Commissioner (EA/2006/0012) (2006)

The IT found that a public authority was entitled to redact sections of a document from which third-party individuals could be identified.

Information Tribunal considers FOIA "personal information" exemption (www.practicallaw.com/9-203-5357)

ICO

The Complainant v the London Borough of Hackney Council (Council) (FS50315994) (2011)

The complainant requested information about the East Marsh wind turbine survey. The Council handled the request under FOIA and disclosed some of the requested information, but withheld the remainder as personal data citing section 40(2) FOIA. The ICO held that the Council should have dealt with the request under the EIR. The ICO held, under regulation 13 of EIR, that the withheld information was not personal data. The ICO also found that regulation 12(5)(d) (confidentiality of proceedings) did not apply. The ICO therefore ordered the Council to disclose the information.

ICO confirms the correct test to be applied to the disclosure of IP addresses (www.practicallaw.com/7-506-7949)

ICO

The Complainant v the Neath Port Talbot County Borough Council (Council) (FS50292926) (2011)

The ICO found that the Council was wrong to apply the exemption relating to personal information set out in section 40 to a request for the addresses of all Council-owned houses and flats. The ICO accepted that the addresses constituted personal information, but ordered their disclosure as disclosing them would constitute lawful processing under the terms of the Data Protection Act 1998.

ICO decision notices in brief for week ending 26 January 2011 (www.practicallaw.com/0-504-5994)

ICO

The Complainant v the Middlesbrough Council (Council) (FS50305568) (2011)

Following the complainant's request for information about statistics relating to an electronic constituency casework and information service operated by the Council for its elected members, the ICO ordered the Council to disclose the statistics broken down by individual councillors.

Information Commissioner requires Middlesbrough Council to provide statistical information broken down by individual councillor name (www.practicallaw.com/7-504-4359)

ICO

The Complainant v the Buckinghamshire County Council (Council) (FS50233989) (2010)

The complainant requested the names of councillors who were members of the Local Government Pension Scheme (LGPS). The ICO decided that the Council was not entitled to rely on section 40(2) to withhold their names.

ICO holds Buckinghamshire County Council not entitled to rely on personal information exemption in relation to LGPS members (www.practicallaw.com/6-503-7972)

ICO

The Complainant v the City of London Police (CLP) (FS50262907) (2010)

The complainant made a request for information to CLP for details of the total remuneration package of the Chief Constable. The CLP provided some of the information requested, but withheld the remaining information applying section 40(2). The ICO agreed that some of the withheld information was exempt from disclosure. However, the ICO determined that further information should be released.

Information Commissioner requires public authority to disclose details of Chief Officer's bonus and honorarium payments (www.practicallaw.com/2-503-3891)

ICO

The Complainant v the London Borough of Waltham Forest (Council) (FS50210000) (2010)

The complainant requested a copy of a report prepared by the Council's anti-fraud team. The Council refused disclosure of the report under sections 22, 31(1)(g), 40(2) and 43(2) of FOIA. The ICO held the exemption at section 40(2) to be engaged and identified items of personal data that required redaction prior to disclosure of the report.

ICO decision notices in brief for week ending 17 July 2010 (www.practicallaw.com/6-502-7845)

ICO

The Complainant v the Bexley Council (Council) (FS50280917) (2010)

The ICO held that the Council had been correct to refuse to release details about the individuals responsible for monitoring the use of a former Council leader's purchasing card. The ICO found that the release of the information would breach the first data protection principle.

ICO decision notices in brief for week ending 17 July 2010 (www.practicallaw.com/6-502-7845)

ICO

The Complainant v the Wakefield Metropolitan District Council (Council) (FS50178553) (2009)

The complainant requested information held by the Council in relation to the settlement of employment tribunal proceedings brought by six former council employees under the Public Interest Disclosure Act 1998 who were dismissed for whistle blowing. The ICO decided that neither sections 40(2) or 41 were engaged.

ICO decision notices in brief for week ending 28 October 2009 (www.practicallaw.com/1-500-5803)

ICO

The Complainant v the Governing Body of Bedgrove Junior School (School) (FS50194697) (2009)

The complainants requested recorded information from the school about the SATs results of its Year 5 pupils. The ICO determined that some information had been correctly withheld by virtue of section 40(2). This information consisted of the names of children and letters relating to their teaching requirements. The ICO did however find that an anonymised version of the information should have been provided.

ICO decision notices in brief for week ending 26 August 2009 (www.practicallaw.com/9-422-3097)

ICO

The Complainant v the Governing Body of Holy Trinity Church of England Primary School (School) (FS50236990) (2009)

The complainant requested the residential postcodes of all the School's staff and pupils. The request was refused citing section 40 of FOIA. The ICO investigated and found that the information withheld was personal data and that disclosure would breach the first data protection principle and was therefore exempt under section 40(2).

ICO decision notices in brief for week ending 26 August 2009 (www.practicallaw.com/9-422-3097)

ICO

The Complainant v the Ealing Council and Coventry Council (Councils) (FS50222631 and FS50222633) (2009)

The ICO found that the Councils had incorrectly applied the exemption contained in section 40 of FOIA to requests for information. In both cases the complainant had requested statistics, on the number of children taken into care, adopted, placed on a special guardianship order and placed on a residence order. The Councils refused the requests on the basis that the information constituted personal data and section 40 of FOIA applied. The ICO held that the requested information was not personal data and the withheld information should be released.

ICO decision notices in brief for week ending 26 August 2009 (www.practicallaw.com/9-422-3097)

ICO

The Complainant v the London Borough of Bromley (Council) (FS50174518) (2009)

The complainant requested details from the Council of the annual pension and lump sum payment for an ex employee and whether the lump sum was tax free. The ICO found that the Council was right not to disclose the information as section 40(2) applied.

ICO decision notices in brief for week ending 26 August 2009 (www.practicallaw.com/9-422-3097)

ICO

The Complainant v the Salford City Council (Council) (FS50222632) (2009)

The complainant requested statistics from the Council on the number of children taken into care, adopted, placed on a special guardianship order and placed on a residence order broken down by age and month. The ICO found that the requested information was not personal data, and therefore section 40(2) was not engaged.

ICO decision notices in brief for week ending 22 July 2009 (www.practicallaw.com/5-386-8062)

ICO

The Complainant v the Buckinghamshire County Council (Council) (FS50160381) (2009)

The complainant had requested data and other information about the operation of the 11+ system in Buckinghamshire schools from the Council. The Council provided some information but refused to provide some raw data. The ICO found that the Council was not entitled to rely on section 40(2) of FOIA to withhold the requested data where there were more than five children taking the 11+ test at the school.

ICO decision notices in brief for week ending 10 June 2009 (www.practicallaw.com/1-386-2934)

ICO

The Complainant v the Financial Services Authority (FSA) (FS50193437) (2009)

The ICO found that the FSA had been wrong to refuse to confirm or deny whether it held certain information. The complainant had requested information about any concerns the FSA had regarding the management of the Leeds City Credit Union. The FSA cited sections 31(3), 40(5) and 43(3) of FOIA and stated that the public interest test favoured maintaining the exclusion of the duty to confirm or deny whether it held any such information. The ICO disagreed and if the information was held, the FSA was required to disclose it to the complainant or to issue a refusal notice in accordance with section 17(1) of FOIA.

ICO decision notices in brief for week ending 10 June 2009 (www.practicallaw.com/1-386-2934)

ICO

The Complainant v the Magherafelt District Council (Council) (FS50203810) (2009)

The complainant had requested information about disciplinary action taken by the Council in the previous three years but had made it clear that it did not seek the disclosure of any personal information. The Council provided some information, but withheld under section 40(2) of FOIA, the information relating to the discipline itself and reasons for dismissal. The Council held an anonymised schedule of action taken but claimed that, given the small number of staff involved, it may still be possible to identify individuals from the schedule. The ICO found that it would not be possible to identify individuals and that the schedule did not constitute personal information.

ICO decision notices in brief for week ending 10 June 2009 (www.practicallaw.com/1-386-2934)

ICO

The Complainant v the London Borough of Camden (Council) (FS50176463) (2009)

The complainant asked the Council for information regarding any disciplinary action that it had asked to have taken against two named council officials. The Council refused to confirm or deny that it held the information sought, citing section 40(2) of FOIA. The ICO found that the Council was excluded from its duty to respond to the request under section 1(1)(a) by virtue of the provisions of section 40(5)(b)(i), because in responding to the request it would have had to disclose information which, if held, would constitute the personal data of named officials.

ICO decision notices in brief for week ending 25 March 2009 (www.practicallaw.com/8-385-4902)

ICO

The Complainant v the Wiltshire County Council (Council) (FS50152758) (2009)

The complainant requested an investigatory report relating to the disciplinary hearing of a head teacher. The Council withheld the information applying sections 40 and 41 of FOIA. The ICO found that section 40(2) was engaged.

ICO decision notices in brief for week ending 25 March 2009 (www.practicallaw.com/8-385-4902)

ICO

The Complainant v the Chief Constable of Sussex Police (CCSP) (FS50205686) (2009)

The ICO found that the CCSP had incorrectly applied the exemption in section 40(5) of FOIA. The CCSP had cited section 40(5) of FOIA as the basis for refusing to confirm or deny it had information relating to reports of anti-social behaviour in a specified postcode area.

ICO decision notices in brief for week ending 4 March 2009 (www.practicallaw.com/2-385-1949)

ICO

The Complainant v the Shropshire County Council (Council) (FS50181762) (2009)

The complainant requested information concerning an investigation into, and subsequent resignation of, a former Head of Communications at the Council. Although the Council released some information, it refused parts of the request under section 40(2) of FOIA. The ICO held that the Council was correct to withhold this information under section 40(2).

ICO decision notices in brief for week ending 4 March 2009 (www.practicallaw.com/2-385-1949)

ICO

The Complainant v the Office for Standards in Education (Ofsted) (FS50088727) (2009)

The complainant submitted a request to Ofsted for information concerning a registered provider of nursery and day care for young children. Ofsted refused citing section 40(2) of FOIA in relation to first part of the request. The ICO found that some of the information in the request contained the nursery provider's personal data, disclosure of which would not breach the data protection principles and therefore the information did not engage section 40(2). Where the information concerned the nursery provider's sensitive personal data, the ICO found that section 40(2) was engaged and was appropriately applied by Ofsted.

ICO decision notices in brief for week ending 4 March 2009 (www.practicallaw.com/2-385-1949)

ICO

The Complainant v the Leicester City Council (Council) (FS50184888) (2009)

The ICO was asked by an unsuccessful job applicant to determine whether the Council should be required to disclose the job application forms of candidates who had applied for two council jobs. The Council had refused to disclose the forms, claiming section 40 of FOIA. The ICO accepted that the release of the application forms in their entirety would be likely to constitute unfair processing, and considered that the exemption at section 40(2) could be applied in respect of some of the information. The ICO decided that the exemption at section 40(2) did not justify withholding the information in its entirety. Some information about applicants' experience and qualifications could be provided in an anonymised form.

ICO decision notice: section 40(2) of the FOI Act does not justify refusal to disclose recruitment data (www.practicallaw.com/0-384-9090)

ICO

The Complainant v the Department for Culture Media and Sport (DCMS) (FS50182413) (2009)

The complainant requested the amount of money paid to consultants involved in London's bid to host the 2012 Olympic Games. DCMS refused to provide the information requested under section 40(2) of FOIA. The ICO investigated and found that section 40(2) was not engaged.

ICO decision notices in brief for week ending 22 April 2009 (www.practicallaw.com/5-385-8237)

ICO

The Complainant v the Caerphilly County Borough Council (Council) (FS50145203) (2009)

The complainant requested information such as a breakdown of costs charged by the Council for repairs to his home. The ICO held that the personal data of the complainant was exempt under section 40(1) of FOIA (but that the Council should have treated it as a subject access request under the Data Protection Act 1998).

ICO decision notices in brief for week ending 22 April 2009 (www.practicallaw.com/5-385-8237)

ICO

The Complainant v the Office for Standards in Education (Ofsted) (FS50145203) (2008)

The ICO ordered Ofsted to release the names of 29,970 child care managers in England, and their relevant place of employment, following a request under FOIA. The ICO rejected Ofsted's argument that the information was exempt from disclosure under section 40(2) of FOIA. The ICO found that disclosure of the information would not contravene the Data Protection Act 1998 because, among other things, many of the managers' names were already in the public domain, and there was a legitimate public interest in knowing the identity of those responsible at a day-to-day level for the care of children.

ICO orders Ofsted to release information on child care managers (www.practicallaw.com/3-384-5019)

ICO

The Complainant v the Nursing and Midwifery Council (NMC) (FS50169734) (2008)

The ICO found that section 40(5)(b)(i) of FOIA exempted the NMC from the obligation to confirm or deny whether it had certain information requested by the complainant as it held the applicable information would have revealed whether any complaints had been made against named individuals.

Freedom of Information Act 2000: ICO decision on application of personal data exemption (www.practicallaw.com/8-384-4003)

ICO

The Complainant v Her Majesty's Chief Inspector of Schools in Wales (HMCI) (FS50086498) (2007)

The complainant requested information relating to complaints made against two named individual officers of the HMCI. The HMCI refused to confirm or deny that any information of the description requested was in fact held by the authority, citing the exemption at section 40. The ICO decided in this case that the HMCI applied section 40 correctly.

ICO upholds refusal to confirm or deny existence of information on basis of section 40 of FOIA (www.practicallaw.com/0-364-6040)

ICO

The Complainant v the Braintree District Council (Council) (FS50066606) (2007)

The complainant made a request for a list of addresses of council properties owned by the Council. The ICO held that the request was wrongly refused as there would be no breach of the data protection principles and therefore section 40 did not apply.

Information Commissioner orders publication of list of council properties (www.practicallaw.com/8-212-7003)

Section 41: breach of confidence

Type of decision

Parties and reference

Summary

Link to update

FTTIR

Telford & Wrekin Council v Information Commissioner and Honarmond (EA/2013/0035)

The FTTIR allowed an appeal by a council against a decision by the Information Commissioner (IC) that information the Council had withheld under the section 43 exemption (prejudice to commercial interests) under the FOIA should be disclosed for reasons in the public interest.

In the appeal, the Council sought to change the exemption relied on from section 43 to section 41 (confidential information). The tribunal allowed the appeal, finding that information about unit costs, price schedules and discount terms forming part of a tender amounted to confidential information and should be withheld under section 41.

Although section 41 is an absolute exemption, the duty of confidence can be outweighed if there is an overriding public interest that favours the disclosure of the information it relates to. However, the tribunal found no such reasons for disclosure and therefore allowed the appeal.

Council correct to refuse to disclose confidential tender documents (FTT(IR)) (www.practicallaw.com/1-551-5102)

FTTIR

Case v IC and others (EA/2013/0045)

The FTTIR has held that Colehill Parish Council (CPC), which was a member of a joint committee (JC) made up of three local burial authorities, did hold information in the possession of the JC for the purposes of the (FOIA.

The FTTIR held that the JC was a public body acting on behalf of three local authorities in relation to their public functions as burial authorities and any action taken by the JC was taken on behalf of those three authorities. CPC therefore did "hold" the requested information. Although the JC could also hold information for its own purposes this did not affect the fact that it also held information on behalf of its three members.

First-tier Tribunal (Information Rights) considers whether information is "held" by joint committee members for FOIA purposes (www.practicallaw.com/9-550-0106)

FTTIR

Michael Hayden v Information Commissioner (EA/2013/0096)

FTTIR has dismissed an appeal against a decision notice holding that the Home Office was not required to disclose advice provided to the Association of Chief Police Officers (ACPO) about the legality of the National Driver Offender Retraining Scheme (NDORS) under section 41 and section 42 of the FOIA.

Advice about legality of the National Driver Offender Retraining Scheme exempt from disclosure (FTT(IR)) (www.practicallaw.com/0-548-6690)

FTTIR

Trott and another v ICO (Case EA/2012/0195)

The FTTIR dismissed an appeal brought against a council who refused, under section 41 of the FOIA, to release case notes it had received from the care home who looked a woman until shortly before her death to her sisters.

Information Tribunal confirms council not required to disclose case notes of deceased woman to family (www.practicallaw.com/3-525-7017)

FTTIR

London Borough of Newham v Information Commissioner, EA/2011/0288

The FTTIR heard an appeal relating to an application by an unsuccessful bidder for a casino licence, in which it sought disclosure from Newham Council under section 1 of the FOIA of information relating to the winning bid. The council responded by disclosing some of the information, in redacted form, and citing the exemptions under section 41 (actionable breach of confidence) and section 43 (trade secrets) to justify withholding the remainder of the requested information. The tribunal found that the information was confidential (having been disclosed against an express promise of confidentiality) and that its disclosure would have caused commercial disadvantage to the successful bidder. The tribunal also dismissed a ground of appeal based on section 44 of the FOIA (applicable where disclosure is prohibited by statute).

Information Tribunal orders partial disclosure of information relating to competitive tender (www.practicallaw.com/2-522-2127)

FTTIR

Orr v Information Commissioner and another, EA/2012/0077

The FTTIR has upheld a decision of the Information Commissioner that the Avon and Somerset police authority was exempt under the FOIA from disclosing confidential minutes of board meetings of the directors of a public-private joint venture company in which it was a shareholder. The exemption arose under section 41 (covering disclosure that would constitute an actionable breach of confidence) and section 43(2) (which protects commercial interests).

Information Tribunal holds police authority exempt from disclosing confidential board minutes of joint venture company (www.practicallaw.com/7-521-7680)

UT

Rob Evans v Information Commissioner [2012] UKUT 313 (AAC)

The UT, overturning the Information Commissioner's decision, has held that advocacy correspondence between Prince Charles and government ministers in 2004 and 2005 was disclosable under the FOIA. In broad terms its ruling was that, although there were cogent arguments for non-disclosure, the public interest benefits of disclosure of advocacy correspondence falling within the claimant journalist's requests generally outweighed the public interest benefits of non-disclosure. Consequently, there was no exemption from disclosure under sections 37(1), 40(2) and 41 of the FOIA.

Note: The UT later held in February 2013 that lists and schedules of advocacy correspondence between Prince Charles and government ministers from 2004 and 2005 were disclosable under the FOIA.

Upper Tribunal rules advocacy correspondence between Prince Charles and ministers disclosable under FOIA (www.practicallaw.com/7-521-5290)

February 2013 decision: Upper Tribunal rules correspondence lists between Prince Charles and ministers disclosable under FOIA (www.practicallaw.com/6-524-3378).

ICO

ICO Decision notice FS50438560, 21 May 2012

The ICO published a decision notice upholding the FSA's refusal to disclose a copy of a report on the Lehman Group that had been commissioned by the trustees of the Pearl Group. The Commissioner concludes in this decision that section 348 of the Financial Services and Markets Act 2000 (FSMA) provides a statutory bar from disclosure. Therefore, the FSA had correctly applied the FOIA when it refused to provide a copy of the report on the ground that the report was confidential information received by it for the purposes of carrying out its regulatory functions under FSMA. When considering whether section 348 applied to the circumstances of this case, the Commissioner took into account previous decisions relating to the application of section 348 as a statutory prohibition on disclosure.

ICO upholds FSA refusal to disclose confidential information (www.practicallaw.com/3-519-7943)

FTTIR

William Thackeray v Information Commissioner, EA/2011/0043

The FTTIR, upholding the IC's decision, has ruled that an e-mail by an employee of the Common Council of the City of London to another employee reporting the substance of a telephone conversation with a third party was exempt from disclosure under FOIA. The request concerned the council's dealings with Church of Scientology organisations. The tribunal agreed that the exemption in section 41 of the FOIA covering third party confidentiality applied.

Information Tribunal rules record of telephone call with third party not disclosable (www.practicallaw.com/4-519-5444)

Court of Appeal

Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council (NCC) (2010) EWCA Civ 1214

The Court of Appeal ruled that documents relating to a company's financial model and profit margin should not be disclosed under section 15 of the Audit Commission Act 1998 (ACA 1998) and that commercial confidential information could be considered as a possession under Article 1 of the first Protocol to the European Convention on Human Rights.

Court of Appeal rules that a company's financial model and profit margin should not be disclosed (www.practicallaw.com/0-503-7946)

UT

IICUS v the Information Commissioner and others (2011) UKUT 205 (AAC)

The UT has allowed an appeal against a decision of the FTTIR on the basis that the FTTIR failed to hold an oral hearing following a request from one of the parties for an oral hearing to take place. The FTTIR had ordered the Department for Business, Innovation and Skills (BIS) to disclose to the complainant information provided by a company to Companies House.

FTTIR must hold hearing if a party requests one (Upper Tribunal) (www.practicallaw.com/6-506-3211)

FTTIR

Department for Business, Innovation and Skills v the Information Commissioner (EA/2011/0044) (2011)

The FTTIR has ruled that information requested by a Bloomberg journalist from the Export Control Organisation (part of the Department for Business, Innovation and Skills (BIS)) concerning licences issued for the export of "controlled goods" to Iran was exempt from disclosure under the FOIA. The FTTIR, overturning the IC's decision, found that there was an actionable breach of confidence and consequently the exemption under section 41(1) was engaged.

Information Tribunal ruling on FOIA exemptions concerning Iranian export licences (www.practicallaw.com/8-508-4745)

FTTIR

Zacharides v Information Commissioner (EA/2010/0162) (2010)

The FTTIR has held that information supplied by UK Athletics Limited to the UK Sports Council on the progress of elite athletics towards the 2012 Olympics was confidential information which was exempt from disclosure under section 41 of the FOIA.

Information Tribunal upholds Commissioner's decision that information on progress of UK athletics was exempt from disclosure (www.practicallaw.com/0-505-5761)

IT

Higher Education Funding Council for England (HEFCE) v the Information Commissioner and Guardian News and Media Limited (as a third party) (EA/2009/0036) (2010)

The HEFCE lost its appeal from the ICO's decision that information relating to the state of buildings at Higher Education Institutions (HEIs) was exempt from disclosure under section 41 of FOIA. The IT considered the meaning of "actionable" in section 41 by reference to Hansard, and concluded that the HEFCE had to show that a claim of breach of confidence on a balance of probabilities would succeed; it was not sufficient to show that such a claim was arguable.

Information Tribunal ruling on FOIA confidential-information exemption (www.practicallaw.com/3-501-2483)

IT

Department of Health (DoH) v the Information Commissioner (EA/2008/0018) (2008)

The IT held that section 41 did not apply to a contract entered into by the DoH, as the contract was not information provided to it by a third party. The IT did accept that some of the information in the schedules to the contract was exempt from disclosure under section 43 (commercial interests).

Information Tribunal rules contract between public authority and service provider not exempt under FOIA (www.practicallaw.com/7-384-1236)

IT

Pauline Buck v the Information Commissioner and Epsom and St Helier University Hospitals NHS Trust (as an additional party) (Trust) (EA/2006/0090) (2007)

The IT upheld the ICO's decision that the Trust was right to refuse to disclose a deceased individual's medical records. It agreed that the medical records were exempt from disclosure under section 41 of FOIA. The IT held, taking account of Articles 10 and 12 of the European Convention on Human Rights, that the public interest in disclosure did not outweigh that in maintaining disclosure. It also upheld the ICO's decision that, despite the absence of authority, the duty of confidence could survive the death of a person to whom the information related.

Information Tribunal rules against disclosure of deceased person's medical records (www.practicallaw.com/5-376-3908)

IT

Derry City Council (Council) v the Information Commissioner (EA/2006/0014) (2006)

The IT upheld a decision of the ICO and concluded that information relating to the financial arrangements governing Ryanair's use of Derry City Airport should be disclosed to the public. The IT held that the Council could not rely on the exemption contained in section 41, as the exemption was not designed to cover information which the public authority had generated itself and that it did therefore not apply to contracts or documents created in the course of contractual negotiations unless the document recorded more than just the mutual obligations of the contracting parties (for example, technical information).

Information Tribunal considers scope of breach of confidence exemption under FOIA (www.practicallaw.com/9-208-6974)

ICO

The Complainant v Liverpool City Council (Council) (FS50273227) (2010)

The ICO ordered the disclosure of information contained in a contract between the Council and Liverpool Direct Ltd, a joint venture company set up between the Council and BT to manage all IT, tax and payroll services within the Council. The Council received a request for the disclosure under FOIA and disclosed a redacted copy of the contract with information on limitations of liability and termination payments removed. The Council claimed that this information was exempt from disclosure under section 41 and 43 of FOIA. The ICO held that neither exemption applied.

ICO orders disclosure of confidential information (www.practicallaw.com/8-504-3284)

ICO

The Complainant v the University of Cambridge (FS50124622) (2009)

The complainant requested minutes and papers relating to meetings dealing with graduate student rents. The University cited section 41 of FOIA as the basis for refusing to disclose the information. Section 41 of FOIA could not be engaged as the Bursars' Committee did not have a separate legal personality from the University. Therefore, there was no third party to whom the University owed an obligation of confidence to and the ICO ordered disclosure of the information.

ICO decision notices in brief for week ending 24 June 2009 (www.practicallaw.com/0-386-3137)

ICO

The Complainant v the Wakefield Metropolitan District Council (Council) (FS50178553) (2009)

The complainant requested information held by the Council in relation to the settlement of employment tribunal proceedings brought by six former council employees under the Public Interest Disclosure Act 1998 who were dismissed for whistle blowing. The Council refused to provide this information as it believed it was exempt under section 40(2) of FOIA. Also the Council cited section 41 on the basis that the information was provided in confidence. The ICO decided that neither sections 40(2) or 41 were engaged.

ICO decision notices in brief for week ending 28 October 2009 (www.practicallaw.com/1-500-5803)

ICO

The Complainant v the Department of Health (DoH) (FS50088736) (2009)

The ICO held that the bulk of a contract between the DoH and one of its service providers had to be disclosed following a request under FOIA. The ICO found that the exemption in section 40 did not apply and required a redacted version of the contract to be disclosed by the DoH.

Department of Health under renewed fire from the Information Commissioner's Office (www.practicallaw.com/9-384-9161)

ICO

The Complainant v the Vehicle and Operator Services Agency (VOSA) (FS50088736) (2008)

The complainant requested the full details of 22 non-safety recalls which were recorded on the VOSA's database in 2006. The VOSA withheld the information by virtue of the exemptions contained in sections 41 and 43(2) of FOIA. The ICO found that neither of the exemptions were engaged and ordered the VOSA to disclose the requested information.

ICO orders disclosure of details of non-safety-related vehicle recalls (www.practicallaw.com/7-384-0425)

ICO

The Complainant v the Tameside Metropolitan Borough Council (Council) (FS50123488) (2008)

The ICO ruled that the Council had to disclose documents showing the commission payments made by investment managers to brokers on behalf of its employees' pension fund. The payments were directly deducted from the pension fund. The Council refused to disclose the information, relying on the exemptions contained in section 41 and section 43 of FOIA. The ICO ruled that the section 41 exemption was not applicable to most of the information, because the public interest defence inherent in the common law of confidence meant that a disclosure of this information would not be actionable in law. The ICO made similar rulings against a total of 32 local authorities.

ICO orders local authorities to disclose pension fund commission payments to brokers (www.practicallaw.com/1-380-9395)

ICO

The Complainant v the Epsom and St Helier University Hospitals NHS Trust (Trust) (FS50071069) (2006)

The ICO held that the Trust was right to refuse disclosure of a deceased individual's medical records in response to a request made under FOIA. The ICO decided that it would be unconscionable to disclose a deceased individual's records, especially as disclosure under FOIA was potentially to the world at large. Such disclosure would also be actionable as a breach of confidence, as the deceased's personal representatives would have standing to bring proceedings.

ICO rules against disclosure of deceased person's medical records (www.practicallaw.com/4-205-6007)

Section 42: legally privileged

Type of decision

Parties and reference

Summary

Link to update

FTTIR

Corke v Information Commissioner (EA/2014/0012) (3 June 2014)

The FTTIR has ruled that the Crown Prosecution Service (CPS) must publish information relating to its decisions not to prosecute Sir Cyril Smith (an MP who died in 2010) for offences against children dating back to the 1970s. The CPS refused to disclose the material in reliance on sections 30(1)(c), 40(2) and 42(1).

The ICO had upheld the CPS's refusal to disclose under sections 30(1)(c) and 40(2), due to the importance of maintaining a safe space for the CPS and police to consider prosecution decisions.

The FTTIR ruled that the public interest under section 30 lay in favour of disclosure, but with appropriate redactions made to the disclosed information to protect the personal data of living individuals, so that no objections on the grounds of personal data could arise.

FTT(IR) orders CPS to disclose information relating to decision not to prosecute historic child offences.

FTTIR

Wirral Borough Council v Information Commissioner (EA/2013/0235) (28 May 2014)

The FTTIR ruled that Wirral Borough Council was not obliged to disclose under the FOIA most of its correspondence with the law firm DLA Piper UK LLP (DLA). DLA had been instructed by an investigator (AKA) who the council had engaged to conduct an inquiry into whistleblowing claims made against the council.

The FTTIR held that the council had failed to provide sufficient evidence as to why the exemption in section 31(1)(g) (internal investigations) was engaged in the circumstances. Although the need for a safe space in which to carry out investigations was understandable, the evidence did not show why or how there was a particular threat of challenge if the particular information that had been requested was published. However, the FTTIR held that the section 42(1) exemption for documents to which legal professional privilege attached did apply. The disputed information attracted common interest privilege, since on the issue of the confidentiality of DLA's legal advice both the council and AKA had common, aligned interests, and the public interest was in favour of maintaining the exemption.

FOIA: common interest privilege permits council to refuse disclosure of law firm correspondence.

FTTIR

Michael Hayden v Information Commissioner (EA/2013/0096)

FTTIR has dismissed an appeal against a decision notice holding that the Home Office was not required to disclose advice provided to the Association of Chief Police Officers (ACPO) about the legality of the National Driver Offender Retraining Scheme (NDORS) under section 41 and section 42 of the FOIA.

The FTTIR dismissed the appeal holding that section 42 had been engaged and that the public interest in disclosure had been reduced by the public availability of a comprehensive summary of the scheme and its legal basis, and in any event, the public interest in maintaining legal professional privilege outweighed the public interest in disclosure. In addition, the comprehensive summary provided to the appellant did cover the jurisprudential basis for NDORS (the common law).

Advice about legality of the National Driver Offender Retraining Scheme exempt from disclosure (FTT(IR)) (www.practicallaw.com/0-548-6690)

FTTIR

Wynn v Information Commissioner EA/2011/0084

The FTTIR has upheld a decision of the IC concerning the amount of information that the Serious Fraud Office must disclose under the FOIA relating to its investigation into the collapse of the Equitable Life Assurance Society. The IC found that the SFO was exempt from having to disclose any further information as it was subject to the exemptions in sections 30 and 42 of FOIA and the public interest favoured maintaining these exemptions. The FTTIR has now upheld this decision, holding that the strong public interest in maintaining a safe space to encourage the collection of information to facilitate investigations and successful prosecutions in the criminal arena outweighed the public interest in providing further transparency over the collapse.

FOIA: full details of SFO investigation into Equitable Life do not have to be disclosed (FTT(IR)) (www.practicallaw.com/4-521-3532)

FTTIR

Uttlesford District Council v Information Commissioner (EA/2011/0269 & 0285)

The FTTIR upheld the council's appeal against the Information Commissioner's decisions that the council should disclose draft committee reports and e-mails between officers and members of the council on whether particular members were eligible to vote on a planning application. The Tribunal was satisfied that the draft reports passing between the council and its legal adviser fell within the scope of legal professional privilege. The Tribunal rejected the Commissioner's finding that there was a substantial public interest in how the final report to members had evolved.

First-tier Tribunal holds that draft committee reports and e-mails between officers and members on probity issue exempt from disclosure (www.practicallaw.com/3-519-8476)

HC

Department for Business Enterprise and Regulatory Reform (BERR) v Dermod O'Brien and another (2009) EWHC 164 (QB)

The High Court partially upheld an appeal against an IT decision ordering BERR to disclose various documents under FOIA relating to the inclusion of regulation 17 in the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, including various documents that had passed between BERR and the Lord Chancellor's department relating to the form of, and the reasons for, regulation 17. BERR refused disclosure on the basis of the exemptions contained in section 35 and section 42 of FOIA. The High Court dismissed BERR's appeal under the section 35 exemption, but upheld it in relation to the section 42 exemption. It ruled that the IT had failed to give sufficient weight to the in-built public interest in non-disclosure once it was established that legal professional privilege attached to the document in question.

High Court allows BERR appeal against FOIA disclosure under legal professional privilege exemption (www.practicallaw.com/9-384-9651)

FTTIR

Grace Szucs v the Information Commissioner (EA/2011/0072) (2011)

The FTTIR has upheld the IC's decision that the Intellectual Property Office (IPO) did not have to disclose legal advice provided to it as it was exempt from disclosure under section 42(1) of the FOIA, which applies to information covered by legal professional privilege.

Information Tribunal rules legal advice to IPO is not disclosable (www.practicallaw.com/3-508-2485)

IT

Mersey Tunnel Users Association (MTUA) v the Information Commissioner (EA/2007/0052) (2008)

The IT allowed an appeal against the ICO's decision and ordered disclosure of legal advice on public-interest grounds. The IT found that advice given in 1994 by legal counsel to MTUA on the authority's powers under a debt administration order was subject to legal professional privilege. However, the public interest in maintaining the exemption under section 42 of FOIA was outweighed by the public interest in disclosure.

Information Tribunal orders disclosure of legal advice on public interest grounds (www.practicallaw.com/5-380-8780)

IT

Trevor Kitchener v the Information Commissioner and Derby City Council (Council) (EA/2006/0044) (2006)

The IT applying section 42 of FOIA, found that the Council was entitled to withhold legal advice it had received from a barrister in relation to care proceedings regarding the appellant's granddaughter.

Information Tribunal considers FOIA exemption for legal professional privilege (www.practicallaw.com/1-210-1978)

ICO

The Complainant v the Department of Health (DoH) (FS50402010) (2011)

The Complainant made a request under section 1(1) of the FOIA to the DoH for disclosure of any legal advice on competition law given to the Secretary of State or other ministers in relation to a specific aspect of the Health and Social Care Bill. The DoH refused to disclose the information on the grounds that the legal professional privilege exemption (section 42) applied.

The IC confirmed that the withheld information met the criteria for the legal professional privilege exemption under section 42 of the FOIA. The IC applied the public interest test and found in favour of the complainant and the DoH was required to disclose the information.

The IC concluded that although it was a finely balanced case, the public interest in maintaining the exemption did not outweigh the public interest in disclosure. He did not consider that disclosure would lead to the DoH or its legal advisers failing to record legal advice thoroughly in the future.

Information Commissioner orders Department of Health to disclose competition advice relating to the Health and Social Care Bill (www.practicallaw.com/5-508-8349)

Section 43: commercial interests

Type of decision

Parties and reference

Summary

Link to update

FTTIR

Department for Education v Information Commissioner and another (EA/2014/0017) (24 June 2014)

The FTTIR ordered the Department for Education (DfE) to disclose internal investigations carried out by its free schools team into Steiner schools.

The FTTIR ruled that the section 35 exemption was engaged, but it was persuaded that the balance of the public interest lay in favour of disclosure. It agreed with the IC that free schools were a radical new policy and that there should be transparency over how the DfE engaged with schools with a special philosophical or religious element in relation to this new policy, in order to allow a fully informed debate. The FTTIR further ruled that the section 43 exemption was not engaged, since there was no evidence of actual or potential commercial damage and an applicant could issue a robust response to mitigate any damage.

DfE ordered to disclose free school investigations under FOIA (FTT(IR)).

FTTIR

Telford & Wrekin Council v Information Commissioner and Honarmond (EA/2013/0035)

The FTTIR allowed an appeal by a council against a decision by the Information Commissioner (IC) that information the Council had withheld under the section 43 exemption (prejudice to commercial interests) under the FOIA should be disclosed for reasons in the public interest.

In the appeal, the Council sought to change the exemption relied on from section 43 to section 41 (confidential information). The tribunal allowed the appeal, finding that information about unit costs, price schedules and discount terms forming part of a tender amounted to confidential information and should be withheld under section 41.

Although section 41 is an absolute exemption, the duty of confidence can be outweighed if there is an overriding public interest that favours the disclosure of the information it relates to. However, the tribunal found no such reasons for disclosure and therefore allowed the appeal.

Council correct to refuse to disclose confidential tender documents (FTT(IR)) (www.practicallaw.com/1-551-5102)

FTTIR

London Borough of Newham v Information Commissioner, EA/2011/0288

The FTTIR has heard an appeal relating to an application by an unsuccessful bidder for a casino licence, in which it sought disclosure from Newham Council under section 1 of the FOIA of information relating to the winning bid. The council responded by disclosing some of the information, in redacted form, and citing the exemptions under section 41 (actionable breach of confidence) and section 43 (trade secrets) to justify withholding the remainder of the requested information. The tribunal found that the information was confidential (having been disclosed against an express promise of confidentiality) and that its disclosure would have caused commercial disadvantage to the successful bidder. The tribunal also dismissed a ground of appeal based on section 44 of the FOIA (applicable where disclosure is prohibited by statute).

Information Tribunal orders partial disclosure of information relating to competitive tender (www.practicallaw.com/2-522-2127)

FTTIR

Orr v Information Commissioner and another, EA/2012/0077

The FTTIR has upheld a decision of the Information Commissioner that the Avon and Somerset police authority was exempt under the FOIA from disclosing confidential minutes of board meetings of the directors of a public-private joint venture company in which it was a shareholder. The exemption arose under section 41 (covering disclosure that would constitute an actionable breach of confidence) and section 43(2) (which protects commercial interests).

Information Tribunal holds police authority exempt from disclosing confidential board minutes of joint venture company (www.practicallaw.com/7-521-7680)

UT

UK Coal v Information Commissioner [2012] UKUT 212 (AAC)

The UT dismissed UK Coal's appeal of the decision of the FTTIR that information relating to UK Coal's commercial management of land that it owned should be disclosed in a redacted form. The UT rejected UK Coal's submissions that the FTTIR's interpretation and application of section 43 of the FOIA failed adequately to protect the company's commercial interests and that it erred in law by taking too narrow a view of what was "core financial information".

Upper Tribunal upholds First-tier Tribunal's decision that UK Coal must disclose commercial information in redacted form (www.practicallaw.com/2-521-0191)

ICO

The Complainant v FSA (FS50417870) (2012)

The ICO has published a decision notice overruling the FSA's decision to withhold disclosure under section 43(2) of the FOIA of the names of certain life companies referred to in the Parliamentary Ombudsman's report on Equitable Life published in 2008.

The ICO concluded that section 43(2) of FOIA was not engaged, that the FSA should disclose the requested information to the complainant, and that the FSA had also breached sections 1(1)(b) and 10(1) of FOIA, as it had failed to provide the complainant with the requested information within 20 working days of receiving the request.

ICO orders FSA to disclose names of life companies referred to in Equitable Life report (www.practicallaw.com/4-519-9526)

FTTIR

Visser v Information Commissioner and another (EA 2011/0188)

The FTTIR held that a piece of information can still be commercially sensitive even if it is two years old at the time of the request.

Age of commercially sensitive information not sole issue (First-tier Tribunal (Information Rights)) (www.practicallaw.com/8-518-4622)

ICO

The Complainant v Department for Business Innovation and Skills (BIS) (FS50406981) (2011)

The ICO has published a decision on a request under the FOIA for disclosure of the financial details contained in a European Commission state aid decision relating to state aid granted to Post Office Limited. The IC concluded that most of the relevant information did fall within the commercial interests exemption in section 43(2) of the FOIA.

ICO decision on FOIA request about financial details of state aid to the Post Office (www.practicallaw.com/2-511-3072)

Court of Appeal

Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council (NCC) (2010) EWCA Civ 1214

The Court of Appeal ruled that documents relating to a company's financial model and profit margin should not be disclosed under section 15 of the Audit Commission Act 1998 (ACA) and that commercial confidential information could be considered as a possession under Article 1 of the first Protocol to the European Convention on Human Rights.

Court of Appeal rules that a company's financial model and profit margin should not be disclosed (www.practicallaw.com/0-503-7946)

UT

IICUS v the Information Commissioner and others (2011) UKUT 205 (AAC)

The UT has allowed an appeal against a decision of the FTTIR on the basis that the FTTIR failed to hold an oral hearing following a request from one of the parties for an oral hearing to take place. The FTTIR had ordered the Department for Business, Innovation and Skills (BIS) to disclose to the complainant information provided by a company to Companies House.

FTTIR must hold hearing if a party requests one (Upper Tribunal) (www.practicallaw.com/6-506-3211)

FTTIR

BBC v the Information Commissioner, EA/2010/0150 (2011)

The FTTIR, allowing an appeal by the BBC, has ruled that information concerning the actual sum paid by the BBC to One Transport Ltd, a taxi company, and what proportion of the BBC's taxi bill that represented, was exempt under the commercial-interest exemption in section 43(2) of the FOIA. The IC had held that the information should be disclosed, rejecting the BBC's argument that this would undermine its negotiating position in future tenders.

Information Tribunal allows BBC to rely on commercial-interests exemption over amount paid to taxi company (www.practicallaw.com/3-506-0285)

FTTIR

Channel Four Television Corporation v the Information Commissioner, EA/2010/0134 (2011)

The FTTIR held that Channel 4 had to disclose the redacted version of a distribution agreement with Sky when parts of it were exempt under the commercial interest exemption in section 43(2). Channel 4 unsuccessfully argued that where the substantive part of a long contract was not disclosable by reason of section 43(2), there was no need for a public authority to go through a detailed analysis of the contract redacting the exempt parts; this was disproportionate.

Information Tribunal considers FOIA commercial interest exemption and document redaction (www.practicallaw.com/4-505-3722)

FTTIR

Nottinghamshire County Council v the Information Commissioner (Case No EA/2010/0142) (2011)

The FTTIR held that Nottingham County Council was required to disclose parts of a waste private finance initiative contract it entered into with Veolia Environmental Services. It was not, however, required to disclose certain commercial information relating to an option to lease land from UK Coal Mining Ltd to host a proposed waste management facility to be managed by Veolia. Further, information about UK Coal's commercial use of the land was not environmental and should be considered under FOIA not the EIR.

FTT (Information Rights) rules on waste PFI contract appeal (www.practicallaw.com/1-505-1319)

FTTIR

Department for Works and Pensions (DWP) v the Information Commissioner (EA/2010/0073) (2010)

The FTTIR held that the disputed information either fell within the exemption for trade secrets or was such that its disclosure would be prejudicial to the commercial interests of the government department. However, it found that the public interest in disclosing the information outweighed the public interest in maintaining the relevant exemption, except in respect of the supplier's financial model (which contains highly commercially sensitive information) and was exempt from disclosure.

Decision of First-tier Information Tribunal on disclosure of information relating to public procurement (www.practicallaw.com/2-503-3773)

IT

Fred Keene v the Central Office of Information (COI) (EA/2008/0097) (2009)

The IT overturned the ICO's decision and ordered the COI to disclose information relating to tenders from businesses interested in providing it with reprographic services in 2005. The COI declined to disclose to the complainant their evaluation forms of the other businesses tendering for the work, on the basis of the exemption in section 43(2) of FOIA. The IT found that the evaluation forms did not contain commercially sensitive information, and that businesses were unlikely to be deterred from tendering for COI business if there was a risk that certain information might be disclosed.

Information Tribunal rejects commercial interest exemption in relation to information on tenders (www.practicallaw.com/5-500-3393)

IT

University of Central Lancashire (UCLAN) v the Information Commissioner and David Colquhoun (as an additional party) (EA/2009/0034) (2009)

The IT upheld a decision by the ICO that copies of course materials for a UCLAN degree were not exempt from disclosure under FOIA. The IT dismissed UCLAN's arguments that the course materials were exempt under section 43(2). The IT accepted that UCLAN's interests in teaching materials produced for its degree courses were "commercial", but did not agree that its commercial interests were likely to be prejudiced. This was because, among other things, competitors were unlikely to exploit the material, copyright infringements were unlikely within the academic community and publishing the course materials might in fact be a commercial advantage.

Information Tribunal requires university to disclose course materials (www.practicallaw.com/5-500-9719)

IT

Department of Health (DoH) v the Information Commissioner (EA/2008/0018) (2008)

The IT held that the bulk of a contract between the DoH and one of its service providers had to be disclosed following a request under FOIA. However, the IT found that the disclosure of certain parts of the schedules to the contract that were commercially sensitive would be likely to prejudice the DoH or the service provider and that, in respect of some of that information, the public interest was best served by maintaining that exemption.

Information Tribunal rules contract between public authority and service provider not exempt under FOIA (www.practicallaw.com/7-384-1236)

IT

John Connor Press Associates Limited (JCP) v the Information Commissioner (EA/2005/0005) (2006)

The IT considered whether disclosure of the information withheld from JCP would have been "likely" to cause such prejudice to the National Maritime Museum (NMM), at the time when disclosure was refused, by undermining its negotiating position with another artist. The IT concluded that the NMM had failed to demonstrate a sufficient risk of prejudice to its commercial interests to justify the exemption under section 43(2) of FOIA.

Freedom of Information Act: exemption (www.practicallaw.com/6-202-0442)

ICO

The Complainant v the Department of Health (DoH) (FS50303047) (2011)

The complainant requested information from the DoH regarding the costs associated with the development, distribution, promotion and purchasing of the flu vaccine supplied by GlaxoSmithKline and Baxter Healthcare Ltd since 2007. The DoH refused to provide information relating to the costs of purchasing the vaccine, relying on section 43(2) of FOIA). The ICO ordered the DoH to disclose high-level information relating to the costs of purchasing the vaccine but did not require the DoH to provide a pricing breakdown.

ICO orders DoH to disclose flu vaccination costs information (www.practicallaw.com/4-504-5807)

ICO

The Complainant v Liverpool City Council (Council) (FS50273227) (2010)

The ICO ordered the disclosure of information contained in a contract between the Council and Liverpool Direct Ltd, a joint venture company set up between the Council and BT to manage all IT, tax and payroll services within the Council. The Council received a request for the disclosure under FOIA and disclosed a redacted copy of the contract with information on limitations of liability and termination payments removed. The Council claimed that this information was exempt from disclosure under section 41 and 43 of FOIA. The ICO held that neither exemption applied.

ICO orders disclosure of confidential information (www.practicallaw.com/8-504-3284)

ICO

The Complainant v the British Broadcasting Corporation (BBC) (FS50228493) (2010)

The ICO ordered the disclosure of details of any incentives offered by the BBC as part of its contract for TV licensing services with Capita. The BBC rejected the request believing that the release of the information would prejudice its commercial interests and those of Capita and therefore was exempt from disclosure under section 43 of FOIA. The ICO held that it was in the public's interest for the information to be released because the BBC must be open to public scrutiny in order to show that they provide value for money.

ICO orders disclosure of confidential information (www.practicallaw.com/8-504-3284)

ICO

The Complainant v the Bury Council (Council) (FS50286978) (2010)

The complainant requested information from the Council relating to a review of its civic suites sites. The review document included recommendations about the future of the sites and their income and expenditure records. The Council disclosed some of the information requested but withheld the remainder citing the section 43(2) exemption. The complainant complained to the ICO. The ICO held that although the commercial interest exemption under section 43(2) of FOIA does apply to information relating to civic suites owned by the Council, the public interest in disclosure outweighed the public interest in maintaining the exemption.

ICO requires Bury Council to disclose information relating to its civic suites (www.practicallaw.com/5-503-7963)

ICO

The Complainant v the Caerphilly County Borough Council (Council) (FS50145203) (2009)

The complainant requested information such as a breakdown of costs charged by the Council for repairs to his home. The Council provided some information but withheld the remainder under section 43 of FOIA. The complainant also requested information regarding a letter to the Council complaining about him. The ICO held that some of the information in the request had been properly withheld under section 43(2), but that the breakdown of costs had not, and should be released to the complainant.

ICO decision notices in brief for week ending 22 April 2009 (www.practicallaw.com/5-385-8237)

ICO

The Complainant v the Home Office (FS50131117) (2009)

The ICO found that the Home Office had incorrectly applied sections 31 and 43 of FOIA to a request for information concerning the evaluation and recommendations for improvement following a poor performance assessment of the Nottingham and West Yorkshire police forces conducted by the Policing Standards Unit. The ICO also found that section 36 of FOIA was engaged, but that the public interest in maintaining the exemption did not outweigh the public interest in disclosure.

ICO decision notices in brief for week ending 28 October 2009 (www.practicallaw.com/1-500-5803)

ICO

The Complainant v the Financial Services Authority (FSA) (FS50193437) (2009)

The ICO found that the FSA had been wrong to refuse to confirm or deny whether it held certain information. The complainant had requested information about any concerns the FSA had regarding the management of the Leeds City Credit Union. The FSA cited sections 31(3), 40(5) and 43(3) of FOIA and stated that the public interest test favoured maintaining the exclusion of the duty to confirm or deny whether it held any such information. The ICO disagreed and if the information was held, the FSA was required to disclose it to the complainant or to issue a refusal notice in accordance with section 17(1) of FOIA.

ICO decision notices in brief for week ending 10 June 2009 (www.practicallaw.com/1-386-2934)

ICO

The Complainant v the Department of Health (DoH) (FS50088736) (2009)

The ICO held that the bulk of a contract between the DoH and one of its service providers had to be disclosed following a request under FOIA. The ICO found that none of the exemptions applied and required a redacted version of the contract to be disclosed by the DoH.

Department of Health under renewed fire from the Information Commissioner's Office (www.practicallaw.com/9-384-9161)

ICO

The Complainant v the Mid Suffolk District Council (Council) (FS50131138) (2008)

The ICO ordered the Council to disclose a copy of a 2004 tendering document for works done by a contractor. The Council had previously offered to provide a redacted copy, but had refused to provide a complete copy on the ground that it contained financial information which was exempt from disclosure under section 43(2) of FOIA. The ICO held that the Council had failed to show that prejudice would be likely to occur to its or the contractor's commercial interests, and rejected arguments that disclosure would affect the tendering process or undermine the Council's ability to achieve best value for money. This ruling provides some useful guidance for councils when they are submitting arguments on behalf of a contractor.

ICO orders council to disclose financial details of tender (www.practicallaw.com/4-382-4196)

ICO

The Complainant v the Vehicle and Operator Services Agency (VOSA) (FS50146033) (2008)

The complainant requested the full details of 22 non-safety recalls which were recorded on the VOSA's database in 2006. The VOSA withheld the information by virtue of the exemptions contained in sections 41 and 43(2) of FOIA. The ICO found that neither of the exemptions were engaged and ordered the VOSA to disclose the requested information.

ICO orders disclosure of details of non-safety-related vehicle recalls (www.practicallaw.com/7-384-0425)

ICO

The Complainant v the Financial Services Authority (FSA) (FS50123488) (2008)

The complainant made two requests for information to the FSA for information relating to a managing agency, his syndicate and Lloyd's. The FSA refused to disclose some of the information requested claiming that section 43 applied. The ICO investigated and found that the exemption in section 43 was not engaged.

Freedom of information: FSA issued with decision notice (www.practicallaw.com/7-382-0088)

ICO

The Complainant v the Tameside Metropolitan Borough Council (Council) (FS50155391) (2008)

The ICO ruled that the Council had to disclose documents showing the commission payments made by investment managers to brokers on behalf of its employees' pension fund. The payments were directly deducted from the pension fund. The Council refused to disclose the information, relying on the exemptions contained in section 41 and section 43 of FOIA. The ICO ruled that the exemption in section 43 applied, but that the public interest in disclosing the information overrode the public interest in maintaining the exemption. The names of the brokers concerned and the market areas named in some of the documents were exempt from disclosure because their release could prejudice commercial interests. The ICO made similar rulings against a total of 32 local authorities.

ICO orders local authorities to disclose pension fund commission payments to brokers (www.practicallaw.com/1-380-9395)

ICO

The Complainant v the National Gallery (Gallery) (FS50107458) (2007)

The complainant requested correspondence between the owner of the painting and the Gallery relating to a specific painting. The Gallery disclosed some information relating to correspondence between the Gallery and Heritage Lottery fund but withheld the remainder of the information under section 43 of FOIA. The ICO investigated the application of section 43 and found that the exemption was engaged and thatthe public interest in maintaining the exemption outweighed the public interest in disclosure.

ICO allows National Gallery to withhold details of negotiations under FOIA exemption (www.practicallaw.com/8-367-5000)

ICO

The Complainant v the Department for Work and Pensions (DWP) (FS50083103) (2006)

The ICO dismissed the DWP's arguments that the commercial interests of the Home Office would be, or would be likely to be, prejudiced by the release of feasibility study on the impact, costs and benefits of the introduction of identity cards. Release of the information was likely to result in the Home Office obtaining better, rather than worse, value for public money and would not prevent the Home Office considering the various tenders it received and awarding contracts to those which offered best value for money.

Information Commissioner orders disclosure of identity cards report (www.practicallaw.com/2-203-0933)

ICO

The Complainant v the Exeter City Council (Council) (FS50080412) (2006)

The ICO required the Council to disclose information regarding the terms of an agreement which it was negotiating with another public authority in relation to the disposal of a piece of local council land.

ICO orders disclosure of terms of negotiations between public authorities under FOIA (www.practicallaw.com/5-204-0191)

Other FOIA decisions

Type of decision

Parties and reference

Summary

Link to update

SC (information held for purposes of journalism)

Sugar v British Broadcasting Commission and another [2012] UKSC 12

The Supreme Court has upheld a Court of Appeal decision that a report created for the BBC about its Middle East news coverage was outside the scope of the FOIA because it was held for the purposes of journalism. The majority of the Supreme Court justices held that only information held exclusively for non-journalistic purposes would be within the FOIA.

Supreme Court upholds BBC's journalism derogation in FOIA proceedings (www.practicallaw.com/8-518-0600)

CA (information held for purposes of journalism)

Steven Sugar v (1) British Broadcasting Commission (2) the Information Commissioner (2010) EWCA Civ 715

The Court of Appeal upheld a High Court decision that a report created for the BBC about its Middle East news coverage was outside the scope of FOIA because it was held for the purposes of journalism and therefore fell within the scope of the derogation in Schedule 1. The Court of Appeal said that the IT had erred in applying a "dominant purpose" test to assessing whether the report was held for the purposes of journalism, ruling that once it was established that the information sought was held by the BBC for the purposes of journalism, it was effectively exempt from production under FOIA, even if it was also held by the BBC for other purposes.

Note: This decision has been upheld by the SC (see above).

Court of Appeal rules on BBC's journalism derogation in ongoing FOIA proceedings (www.practicallaw.com/9-502-6095)

ICO (Section 1- General right of access to information held by public authorities)

The Complainant v The Financial Conduct Authority (FS50496791) (2014)

The complainant made an initial request to the FCA for information relating to its investigation into Keydata Investment Services Ltd. The FCA claimed that it was not obliged to comply with the information requests by virtue of section 12(1) (appropriate limit) of the FOIA.

The complainant challenged the findings, the FCA carried out an internal review which upheld its decision. The complainant subsequently complained to the ICO.

While investigating the FCA's response to the information request, the Commissioner became aware of the possibility that the complainant and the FCA shared different interpretations of the scope of the request. In the light of this, and taking other factors into account, the Commissioner decided that the FCA failed to act on the complainant's intended alternative reading of the request and was in breach of section 1(1) (rights of access) of the FOIA.

It therefore required the FCA to process the alternative reading and issue an appropriate response.

ICO finds FCA breached FOIA (www.practicallaw.com/7-554-6445)

FTTIR (Section 1 - whether information is held)

Hackett v Information Commissioner and another (EA/2012/0265)

The FTTIR upheld the IC's decision that the senior management team of an education charity were employed by a third party private company under the terms of a service agreement. Therefore, the information requested by the appellant under the FOIA was not held by the education charity.

Information on employment packages of senior staff not held by education charity but third party private company (First-tier Tribunal (Information Rights)) (www.practicallaw.com/7-501-4772).

IT (Section 1 - whether information is held)

M L Johnson v the Information Commissioner and Ministry of Justice (MoJ) (EA/2006/0085) (2007)

The IT clarified the circumstances in which a public authority can reject a request for information because it does not hold the relevant data in the form in which it is requested. The IT said that if the request required raw data to be manipulated, it could be refused on the basis that the data was not "held" within the terms of section 1(1) of FOIA, but only if the necessary manipulation would require an exercise of skill and judgment. In the present case, an unskilled person could inspect the court records in order to extract and collate the relevant information, so the MoJ could not legitimately deny the request on the ground that it did not hold the information.

Information Tribunal clarifies when information is not "held" in requested form (www.practicallaw.com/5-375-1118)

FTTIR (Sections 1 and 16 - presentation of redacted material)

Gradwick (G) v the Information Commissioner and the Cabinet Office (CO) (EA/2010/0030) (2009)

G had requested information from the CO's Manual of Security. The CO decided to disclose some, but not all, of the material requested and collated all of the disclosable material into a single document, rather than blanking out the necessary sections. The case concerned whether sections 23 and 24 of FOIA applied; however, the FTTIR commented on the way that the CO had chosen to present the information to G. The FTTIR stated that a failure to present the requested information in a clear and helpful way could result in the public body breaching its duties under sections 1 and 16 of FOIA.

Poor presentation of redacted material could breach sections 1 and 16 of FOIA (www.practicallaw.com/9-503-0281)

IT (Section 1 - whether information is held)

Paul Harper v the Information Commissioner (EA/2005/0001) (2005)

The IT agreed with the ICO's decision, finding that the Royal Mail did not hold the information at the time when it received Mr Harper's request, and did not therefore have to provide it. The IT recommended, however, that the Royal Mail put in place a data retention policy that would ensure parity of treatment for all information. In other words, the availability of data should not depend on the point in the data deletion cycle at which a request happened to be made. All information should be kept for the same period of time, so that FOIA information requests would be treated consistently.

Information Tribunal gives guidance on disclosure of deleted electronic information under FOIA (www.practicallaw.com/8-201-6825)

IT (Section 1 - whether information is held)

Edward Anthony Barber v the Information Commissioner (EA/2005/0004) (2005)

The IT allowed an appeal and found that the ICO had erred in its findings when deciding that because a request was "framed in general and subjective terms" the Inland Revenue did not hold any relevant information.

Information Tribunal publishes its first decision (www.practicallaw.com/1-201-6131)

ICO (Section 1 - identifying relevant information)

The Complainant v the Department of Education (FS50422276) (2012)

The IC issued his decision that information sent by the Secretary of State for Education from a private e-mail account amounted to departmental business and was not party political information. Therefore, the requested information was held for the purposes of the FOIA and the Department for Education (DfE) was in breach of section 1(1)(b) by failing to disclose it.

Information Commissioner holds DfE in breach of FOIA by not disclosing e-mail sent from a private e-mail account (www.practicallaw.com/2-518-3300)

ICO (Section 1 - identifying relevant information)

The Complainant v the Financial Services Authority (FSA) (FS50129430) (2009)

The ICO concluded that the FSA failed to identify all relevant information falling within the complainant's request and therefore failed to provide adequate written notice about whether this information was held, in breach of sections 10(1) and 1(1) of FOIA.

ICO finds FSA has breached the FOIA (www.practicallaw.com/0-501-0305)

FTTIR (Section 3 - whether information held)

King's College, Cambridge v Information Commissioner and another (EA/2012/0049)

The FTTIR held that information held by individual governors of King's College School (who were not Fellows of King's College, Cambridge) was held on behalf of King's College, Cambridge, under section 3 of the FOIA. In a separate ruling, the school was ruled to be part of the college for the purposes of FOIA.

The tribunal ruled that the same rule would apply to non-Fellow school governors as to governors who were college Fellows. The fact that the non-Fellow governors were volunteers did not rule out the possibility of their holding information on behalf of the college: the tribunal should consider all the circumstances. All of the governors acted on behalf of the school (and the college) and therefore the information held by all of them when acting in that regard was disclosable by the college under FOIA.

Information held by volunteer governors was held "on behalf of" college (FTT(IR)) (www.practicallaw.com/7-545-5925)

FTTIR (Section 3 - whether information held)

Case v IC and others (EA/2013/0045)

The FTTIR has held that Colehill Parish Council (CPC), which was a member of a joint committee (JC) made up of three local burial authorities, did hold information in the possession of the JC for the purposes of the (FOIA.

The FTTIR held that the JC was a public body acting on behalf of three local authorities in relation to their public functions as burial authorities and any action taken by the JC was taken on behalf of those three authorities. CPC therefore did "hold" the requested information. Although the JC could also hold information for its own purposes this did not affect the fact that it also held information on behalf of its three members.

First-tier Tribunal (Information Rights) considers whether information is "held" by joint committee members for FOIA purposes (www.practicallaw.com/9-550-0106)

FTT (Section 3 - information held by another party)

Dransfield v the Information Commissioner and Devon County Council (Council) UKFTT (EA/2010/0152) (GRC) (2011)

The FTT dismissed the appellant's request to the Council for information on the operations maintenance manual relating to a private finance initiative. The FTT held that the information was not held by the authority for the purposes of section 3 of the FOIA.

First-tier Tribunal holds that information on an American computer system not held by the public authority (www.practicallaw.com/8-505-6926)

ICO (Section 3 - information held by another party)

The Complainant v the Leeds City Council (Council) (FS50118044) (2007)

The ICO issued a decision notice requiring the Council to release residents' responses to a public consultation questionnaire which were held on the Council's behalf by a market research company. The ICO rejected the Council's argument that it did not hold copies of the completed questionnaires as it had only commissioned the company to produce a final report based on the survey's results. For the purposes of FOIA (section 3(2)(b)), information is held by a public authority if it is held by another person or organisation on behalf of the authority.

Information Commissioner orders Council to disclose residents' completed questionnaires (www.practicallaw.com/5-353-8953)

FTTIR (Section 5- Further power to designate public authorities)

Universities and Colleges Admissions Service v Information Commissioner and another (EA/2013/0124)

The FTTIR has ruled on a case involving a body that was designated as a public authority by an order under section 5 of the FOIA in relation to certain of its functions (the Universities and Colleges Admissions Service (UCAS)). The FTTIR stated that the test for whether particular information held by such a designated body is subject to FOIA is as follows:

  • Did the designated body hold the information to any significant degree and not de minimis, in relation to the exercise of its designated function (even if it also held the information in relation to other (possibly more important) functions)? Any doubt over the degree should be resolved by asking whether there is a sufficiently direct link between the designated function and the holding of the information.
  • If yes, is the information held in relation to a listed academic institution under the Freedom of Information (Designation as Public Authorities) Order 2011 (SI 2011/2598)?
  • If yes, then the information is subject to FOIA and potentially disclosable, so do any of the exemptions from FOIA apply?

The decision will be of interest to other bodies that are designated as public authorities under section 5 of FOIA, or bodies that fall under FOIA only in relation to some of their functions, as it aims to clarify the test for whether information held by those bodies falls within the scope of FOIA.

Whether FOIA designated body (UCAS) holds information for FOIA purposes (FTT(IR)) (www.practicallaw.com/3-554-9262)

UTTIR (Section 11- Means by which communication to be made)

The Independent Parliamentary Standard Authority v The Information Commissioner and Ben Leapman [2014] UKUT 0033 (AAC)

The UTTIR dismissed an appeal against a decision by the FTTIR, which decision had upheld the Information Commissioner's decision that the Independent Parliamentary Standards Authority (IPSA) must disclose copies of the original receipts and invoices of specific MPs under the FOIA 2000. The IPSA had attempted to discharge its disclosure obligations by providing transcripts of the information contained in the receipts.

While a public authority has some discretion as to the format in which to provide the requested information (section 11, FOIA 2000), in this case, the transcripts were held to miss certain non-verbal information that would be visible from the receipts and invoices themselves, such as symbols, logos, letterheads and manuscript comments. The UTTIR illustrated its decision by citing a request for plans or photographs which also constitute recorded information but cannot be transcribed into words.

The IPSA had therefore failed to discharge its duty under section 1 of the FOIA 2000 to provide the applicant with the requested information. The Tribunal therefore ordered the IPSA to disclose the requested information.

FOIA: IPSA must disclose MPs' expenses receipts (UTT (IR)) (www.practicallaw.com/2-555-8426)

FTTIR (Section 11(4) - public bodies right to extract information or to provide it in a format different to that in which it was requested)

Independent Parliamentary Standards Authority v Information Commissioner and another (EA/2012/0242) UKFTT [2013] 2012_0242 (GRC).

The FTTIR ruled that the Independent Parliamentary Standards Authority (IPSA) must disclose copies of the actual receipts submitted by MPs claiming expenses. IPSA was not permitted to simply disclose information extracted from the receipts in reliance on section 11(4) of the FOIA.

FOIA: form of original documents can be disclosable "information" that must not be withheld by providing in different format (First-tier Tribunal (Information Rights)) (www.practicallaw.com/5-527-2465)

IT (Section 16 - advice and assistance)

Dr C Lamb v the Information Commissioner (EA 2006/0046) (2006)

The IT overturned a decision of the ICO and concluded that, where a request for information was unclear, the Cabinet Office was under a duty to ask the complainant to clarify his request in order to identify the information. This decision confirms that a public authority is under a positive duty to assist a person seeking information and cannot avoid disclosure on account of a lack of clarity in a request.

Information Tribunal imposes duty to seek clarification of request (www.practicallaw.com/1-206-2156)

ICO (Section 21 - information reasonably accessible)

The Complainant v the Staffordshire County Council (Council) (FS50175530) (2009)

The complainant requested a hard copy of a photograph he had inspected at Cannock Library from the Council. The ICO accepted the Council's assertion that it was not obliged to provide a copy of the photograph under section 1(1)(b) of FOIA as it was reasonably accessible to the complainant by inspection at Cannock Library under its publication scheme and therefore exempt under section 21 of FOIA.

ICO decision notices in brief for week ending 25 March 2009 (www.practicallaw.com/8-385-4902)

ICO (Section 22 - information intended for future publication)

The Complainant v the Neath Port Talbot County Borough Council (Council) (FS50275058) (2010)

The complainant requested a report prepared by the Council in relation to the "reorganisation/structure of the West Glamorgan Joint Child Care Legal Service". The Council stated that the report was in draft and intended for later publication and therefore exempt under section 22 of FOIA. The ICO found that the Council did not provide sufficient evidence to support its view that section 22 was engaged and accordingly ordered disclosure.

ICO finds Neath Port Talbot County Borough Council guilty of procedural breaches in handling of information request (www.practicallaw.com/8-503-0700)

UT (late reliance on an exemption)

DEFRA v Information Commissioner and another [2011] UKUT 39 (AAC)

The UT held that public authorities which initially relied on particular exemptions or exceptions under FOIA or the EIR may later rely on additional or different exemptions or exceptions, without the permission of the IC or the FTTIR.

Authorities entitled to claim FOIA and EIR exemptions late (Upper Tribunal) (www.practicallaw.com/4-504-7552)

FTTIR (late reliance on an exemption)

The Commissioner of Police of the Metropolis v the Information Commissioner (EA/2010/0006) (2010)

In agreeing to consider the exemption in section 24 of FOIA but refusing to consider the exemption in section 23, the FTTIR held there must be a reasonable justification to allow late reliance on an exemption. The IT considered that giving a blanket right to authorities to rely on exemptions first raised at the IT stage could risk making the appeal stage unfair and uncertain for the requester and could also lead to public authorities taking a more cavalier approach to their obligations under FOIA.

NOTE: the Upper Tribunal has now held that public authorities are entitled to rely on new exemptions for the first time before the tribunal (see above).

Information Tribunal: further confusion over late reliance on FOIA exemptions (www.practicallaw.com/0-502-8471)

FTTIR (Section 30(1)(c) - information held for the purpose of criminal proceedings)

Corke v Information Commissioner (EA/2014/0012) (3 June 2014)

The FTTIR has ruled that the Crown Prosecution Service (CPS) must publish information relating to its decisions not to prosecute Sir Cyril Smith (an MP who died in 2010) for offences against children dating back to the 1970s. The CPS refused to disclose the material in reliance on sections 30(1)(c), 40(2) and 42(1).

The ICO had upheld the CPS's refusal to disclose under sections 30(1)(c) and 40(2), due to the importance of maintaining a safe space for the CPS and police to consider prosecution decisions.

The FTTIR ruled that the public interest under section 30 lay in favour of disclosure, but with appropriate redactions made to the disclosed information to protect the personal data of living individuals, so that no objections on the grounds of personal data could arise.

FTT(IR) orders CPS to disclose information relating to decision not to prosecute historic child offences.

IT (Section 30 - information held for investigation purposes)

Edwin Alcock v the Information Commissioner and Chief Constable of Staffordshire Police (as an additional party) (EA/2006/0022) (2007)

The IT upheld a decision of the ICO and concluded that information provided by a police informant on an expressly confidential basis was covered by the exemptions in FOIA relating to personal information and information held by a public authority for investigative purposes.

Information Tribunal considers exemptions for information supplied by police informant (www.practicallaw.com/7-211-3167)

ICO (Section 30 - information held for investigation purposes)

The Complainant v the Commissioner of the Metropolitan Police Service (CMPS) (FS50153447) (2009)

The ICO found that the CMPS had been correct to apply section 30(1)(a)(i) of FOIA to the whole of a report, but were wrong to hold that the public interest favoured maintaining the exemption in respect of the whole report. This decision notice makes it clear that even if a part of a document is exempt from disclosure under FOIA, it does not mean that the document as a whole will be exempt.

ICO decision notices in brief for week ending 10 June 2009 (www.practicallaw.com/1-386-2934)

ICO (Section 30 - information held for investigation purposes and Section 31 - prevention and detection of crime)

The Complainant v the Royal Mail (FS50118873) (2007)

The ICO ruled that under FOIA, the Royal Mail must disclose statistics on the number of thefts from private vehicles being used to deliver mail. The ICO rejected arguments that the information was exempt from disclosure because it related to investigations and proceedings by the Royal Mail (section 30(1)(b)), or because disclosure would or would be likely to prejudice the prevention or detection of crime (section 31(1)(a)).

ICO orders Royal Mail to release mail-theft statistics (www.practicallaw.com/4-376-0585)

FTTIR (section 31(1)(g) - internal investigations)

Wirral Borough Council v Information Commissioner (EA/2013/0235) (28 May 2014)

The FTTIR ruled that Wirral Borough Council was not obliged to disclose under the FOIA most of its correspondence with the law firm DLA Piper UK LLP (DLA). DLA had been instructed by an investigator (AKA) who the council had engaged to conduct an inquiry into whistleblowing claims made against the council.

The FTTIR held that the council had failed to provide sufficient evidence as to why the exemption in section 31(1)(g) (internal investigations) was engaged in the circumstances. Although the need for a safe space in which to carry out investigations was understandable, the evidence did not show why or how there was a particular threat of challenge if the particular information that had been requested was published. However, the FTTIR held that the section 42(1) exemption for documents to which legal professional privilege attached did apply. The disputed information attracted common interest privilege, since on the issue of the confidentiality of DLA's legal advice both the council and AKA had common, aligned interests, and the public interest was in favour of maintaining the exemption.

FOIA: common interest privilege permits council to refuse disclosure of law firm correspondence.

FTTIR (Section 31 - prevention and detection of crime)

Voyias v the Information Commissioner and another (EA/2011/0007) (2011)

The FTTIR agreed with the IC finding that the list was exempt from disclosure under section 31(1)(a) of the FOIA. However, it overruled the IC's decision that the public interest in maintaining the exemption outweighed the public interest in disclosing the list. The FTTIR considered that the positive effect of disclosure (which included an increase in transparency and the potential to bring empty homes back into use) outweighed the increased risk of squatting and the associated crime that may accompany it.

Note: This decision was successfully appealed on 22 January 2013.

List of empty residential properties must be disclosed (FTTIR) (www.practicallaw.com/3-508-0976)

Appeal decision: Reconstituted Tribunal holds that "voids" information should not be disclosed under section 31(1)(a) of FOIA (First-tier Tribunal (Information Rights)) (www.practicallaw.com/4-523-8189)

IT (Section 31 - prevention and detection of crime)

Balwinder Bangar v the Information Commissioner and Transport for London (TfL) (EA/2009/0061) (2009)

The IT overturned a decision by the ICO ruling that TfL internal guidance on how it considers appeals against congestion charge penalty notices must be disclosed. The IT held that the necessary prejudice or risk of prejudice required under section 31 of FOIA did not exist. In fact, disclosure of the guidance could assist TfL by making it clear that certain representations to evade payment would clearly fail. Section 31 did not apply to the guidance.

Information Tribunal overturns decision on whether congestion charge appeal guidance has to be disclosed (www.practicallaw.com/2-500-8995)

ICO (Section 31 - prevention and detection of crime)

The Complainant v the Home Office (FS50131117) (2009)

The ICO found that the Home Office had incorrectly applied section 31 of FOIA to a request for information for information concerning the evaluation and recommendations for improvement following a poor performance assessment of the Nottingham and West Yorkshire police forces conducted by the Policing Standards Unit.

ICO decision notices in brief for week ending 28 October 2009 (www.practicallaw.com/1-500-5803)

ICO (Section 31 - prevention and detection of crime)

The Complainant v the BBC (FS50154106) (2008)

The complainant requested information from the BBC regarding the number of TV detection devices, how often they are deployed and their technical specification. The BBC refused to disclose the information under sections 31(1)(a), (b), (d) and (g) of FOIA. The ICO investigated and found that the information was exempt under sections 31(1)(a), (b), (d) and (g) and that the public interest in maintaining the exemption outweighed the public interest in disclosure of the information.

ICO rules details of television detection devices should not be disclosed (www.practicallaw.com/2-383-9071)

IT (Section 33 - audit of public authorities' accounts)

The Office of Government Commerce (OGC) v the Information Commissioner (EA/2006/0068 and EA/2006/0080) (2009)

The IT upheld the ICO's decision ordering the disclosure under FOIA of two Gateway reports by the OGC on the progress of the government's identity-card scheme, with the redaction of the names of certain participants. The IT held that the exemptions in both section 33 and section 35 were engaged. However, it ruled that the public interest in maintaining the exemptions did not outweigh the public interest in disclosure.

Information Tribunal orders disclosure of ID card status reports after High Court remits appeal (www.practicallaw.com/0-385-0941)

FTTIR (Section 38- Health and safety)

Hepple v Information Commissioner and another (EA/2013/0168)

The FTTIR upheld the Information Commissioner's decision that a report of an investigation into complaints about staff at a Pupil Referral Unit (PRU) should not be published under the FOIA.

The FTTIR took into account the fact that the appellant had sent text messages to an individual involved in the council's handling of the report and the appeal, which resulted in the appellant being issued with a formal harassment notice. The FTTIR acknowledged that it should normally be blind to the motive of the requester, but it said that "assessing an information request on this 'motive blind' basis ought not to prevent us from considering the potential risk to safety posed by the requester him/herself."

The FTTIR therefore ruled that the exemption in section 38, FOIA 2000 (publication would endanger the health or safety of an individual) was engaged and should be upheld. There was a real risk that disclosure could have exacerbated an individual's pre-existing condition, to the extent that specific psychological harm was likely to follow.

FOIA: "motive blindness" not required when mental health at risk (FTT(IR)) (www.practicallaw.com/4-560-3625)

FTTIR (Section 44 - disclosure prohibited by other legislation)

Wendy Stephen v Information Commissioner (EA/2013/0109)

The FTTIR ruled that the General Medical Council (GMC) was not obliged to publish information that it had received from the Legal Services Commission under the FOIA, because the exemption in section 44 of FOIA applied: publication was prohibited under another statute. The exemption continued to apply despite the fact that the owner of the exempt information had shared it with a third party (the GMC).

FOIA: "publication prohibited under another statute" exemption applied despite disclosure of documents to another party (FTT(IR)) (www.practicallaw.com/2-545-5150)

CA (Section 44 - disclosure prohibited by other legislation)

British Union for the Abolition of Vivisection v (1) Home Office (2) the Information Commissioner (2008) EWCA Civ 870

The Court of Appeal upheld the High Court's decision that the Home Office was entitled to rely on section 44 of FOIA, in relation to a request for information on licences under the Animals (Scientific Procedures) Act 1986, because section 24 of the 1986 Act applied.

Court of Appeal upholds High Court FOIA decision in animal-testing licences case (www.practicallaw.com/4-382-9052)

FTTIR (Section 44 - disclosure prohibited by other legislation)

Thomas v Information Commissioner and another (EA/2010/0145) (2011)

The FTTIR found that "fieldwork records" held by the Auditor General for Wales on an investigation it carried out into corporate governance at Isle of Anglesey County Council should not be disclosed, as this was prohibited under section 54 of the Public Audit (Wales) Act 2004.

Local government audit "fieldwork records" must not be disclosed (FTT (Information Rights)) (www.practicallaw.com/5-505-4698)

IT (Section 44 - disclosure prohibited by other legislation)

Norman Slann v the Information Commissioner and the Financial Services Authority (FSA) (EA/2005/0019) (2006)

In a case concerning the FSA, the IT upheld a decision of the ICO and concluded that confidential information provided to the FSA was exempt from disclosure under FOIA by virtue of the prohibition on its disclosure contained in the Financial Services and Markets Act 2000.

Information Tribunal considers exemption from disclosure under section 44 of the FOIA (www.practicallaw.com/8-203-5353)

ICO (Section 44 - disclosure prohibited by other legislation)

The Complainant v the Financial Services Authority (FSA) (FS50286155) (2010)

A complaint was made from an individual that the FSA had withheld certain information about the management of Leeds City Credit Union. The ICO found that the section 44 exemption (which the FSA argued applied to all of the requested information) applied to only some of the information withheld.

ICO finds FSA in breach of Freedom of Information Act 2000 (www.practicallaw.com/0-503-2897)

ICO (Section 44 - disclosure prohibited by other legislation)

The Complainant v the Department of Trade and Industry (DTI) (FS50071795) (2006)

The ICO held the DTI was not obliged to disclose those parts of the requested information which were protected by legal professional privilege. The DTI was, however, required to disclose the remainder of the requested information except to the extent that it was information which was obtained directly in pursuance of a requirement imposed under section 447 of the Companies Act 2006 (CA), or where its disclosure would necessarily reveal information which was obtained directly in pursuance of a requirement imposed under section 447 of the CA.

Information Commissioner considers FOIA exemption for legally privileged information (www.practicallaw.com/1-203-9241)

UT (limitation period for bringing an appeal)

X v the Information Commissioner and another UKUT 423 (AAC) (2010)

The UT dismissed Mr X's applications for permission to appeal the FTTIR's decision of 23 July 2010, refusing to extend time to admit his late appeal and to apply for judicial review of the same decision.

Upper Tribunal (Administrative Appeals Chamber) dismisses application appealing the decision of the First-tier Tribunal (www.practicallaw.com/2-504-3932)

UT

Information Commissioner v PS [2011] UKUT 94 (AAC) (2011)

The UT rejected an appeal from the ICO against a FTTIR ruling allowing a complainant to submit an appeal 46 days late against a decision notice issued by the ICO.

Decision to allow late appeal did not contain an error in law (Upper Tribunal) (www.practicallaw.com/4-505-4731)

UT (section 50- Application for decision by Commissioner)

The Information Commissioner v Gordon Bell [2014] UKUT 0106 (AAC)

The UT considered an appeal by the IC as to whether the FTTIR has jurisdiction to remit a case to the IC for reconsideration in the light of further submissions from the public authority.

The powers of the FTTIR on appeal are governed by section 58 of FOIA and provide that, on an appeal, the FTTIR shall allow the appeal or substitute such other notice as the IC could have served. In any other case, the appeal will be dismissed.

The UT accepted the IC's arguments that he did not have power to serve a further notice under section 50 FOIA since:

  • His powers to act under that section had been exhausted once he had served the decision notice on Mr Bell and there is no power in the legislative structure for the IC to revisit a notice.
  • It is not possible to have two notices on the same complaint but in different terms.
  • It was inconsistent with the nature of an appeal to the FTTIR for that tribunal to remit the case back to the IC for reconsideration. Once an appeal is made, the tribunal had legal responsibility for making the decision and it could not abdicate or share that duty.

Therefore, the Upper Tribunal set aside the FTTIR's decision and directed that the matter be reheard.

First-tier tribunal does not have power to remit a case to the Information Commissioner (Upper Tribunal (Administrative Appeals Chamber) (www.practicallaw.com/5-562-4646)

UT (Section 50 - application for decision by Commissioner)

Information Commissioner v Gaskell (GIA/3016/2010) (2011)

The UT allowed the IC's appeal of the FTTIR's decision of 23 March 2010 and held that the requirement in section 50(4) of the FOIA that a decision notice should specify the steps a public authority must take does not amount to a mandatory obligation on the IC to require steps to be taken. The UT also held that the mandatory element of section 50(4) of FOIA is that, if the IC considers that a public authority ought to take steps to comply with the statutory requirements of sections 1(1), 11 or 17, then these steps, and the period of time within which they must be undertaken, must be specified in the decision notice. The FTTIR was wrong to decide that the IC had no discretion.

Information Commissioner has a discretion in deciding whether or not to enforce compliance with FOIA (Upper Tribunal) (www.practicallaw.com/1-507-0191)

CA (section 53- Exception from duty to comply with decision notice or enforcement notice)

Evans v Information Commissioner and others [2014] EWCA Civ 253

R (Evans) v HM Attorney General and another [2014] EWCA Civ 254

The Court of Appeal ruled in two cases that correspondence between the Prince of Wales and several government departments dating from 2004 and 2005 should be published, following a request under the FOIA and the EIR 2004 by the Guardian journalist Rob Evans. The court judicially reviewed the Attorney General's decision to issue a certificate vetoing the publication and decided that the use of the veto in this situation was unlawful and the certificate should be quashed. It also decided that a previous Upper Tribunal ruling (that lists of this same correspondence should be published) was not valid. The judgment also stated that section 53(2) of FOIA (which allows for the veto) is incompatible with EU law insofar as it relates to environmental information.

The judgment stated that the court does not consider that a minister should be able to override a reasonable decision by a court or tribunal simply because he disagrees with it. This is a firm stance on the proper use of the veto and it is likely to prove controversial. Indeed, the Attorney General has indicated that he will appeal the decision and he has been given permission to appeal to the Supreme Court.

Court of Appeal overrules ministerial veto and allows publication of Prince Charles' correspondence (www.practicallaw.com/1-561-1325)

HC (Section 53 - Exception from duty to comply with decision notice or enforcement notice)

R (Evans) v HM Attorney General and another [2013] EWHC 1960 (Admin)

The High Court rejected a judicial review challenge to the issuing of a certificate under section 53 of the FOIA by the Attorney General, Dominic Grieve, which vetoed the disclosure of advocacy correspondence between The Prince of Wales and government ministers dating from 2004 and 2005.

The High Court ruled that the Attorney General's Statement of Reasons for the veto demonstrated reasonable grounds to justify the exercise of the executive section 53 override, since they were cogent and not irrational. The public interest lay in allowing Prince Charles to prepare for kingship, and him taking part in private "advocacy correspondence" formed part of these preparations.

Judicial review challenge to ministerial veto over Prince Charles letters fails (High Court) (www.practicallaw.com/5-534-0389).

AG certificate (Section 53 - Exception from duty to comply with decision notice or enforcement notice)

Attorney General's certificate and statement of reasons, 16 October 2012

The Attorney General has issued a certificate under section 53 of the FOIA preventing the disclosure of advocacy correspondence between Prince Charles and government ministers dating from 2004 and 2005. This follows a ruling by the UT that (contrary to the Information Commissioner's decision) the correspondence did not fall within the exemptions under sections 37, 40 and 41 of the FOIA. This is the first time that the ministerial veto has been exercised in relation to a decision of the UT.

Attorney General vetoes disclosure of advocacy correspondence between Prince Charles and government ministers (www.practicallaw.com/9-521-8990)

FTTIR (Sections 54 (failure to comply with notice) and 57 (appeal against notices served under Part IV))

Paul Charman v Information Commissioner [2012] UKFTT 2011_0210

The FTTIR has held that there is no right of appeal to the tribunal for a complainant in respect of action taken by the IC under section 54 of FOIA against a public authority for failing to comply with a decision notice. The right to appeal in section 57 FOIA only relates to a "decision notice" served by the IC.

The FTTIR held that this refers only to a decision notice served by the IC under section 50 on the substantive issue of whether the public authority had complied with the requirements of parts one and two of FOIA (or the EIR) when dealing with a request for information. Where a complainant is unhappy with any enforcement action taken by the IC under section 54, the FTTIR concluded that the appropriate remedy is an application for judicial review, or possibly a complaint to the Parliamentary and Health Service Ombudsman.

No right of appeal to Tribunal about action taken by Information Commissioner under section 54 of FOIA (First-tier Tribunal) (www.practicallaw.com/1-519-4771)

FTTIR (Section 58 - appeals to tribunal)

Clucas v Information Commissioner (EA/2014/0006) (2 June 2014)

The FTTIR has ruled that legal precedent meant that only those decision notices that were not validly made could be remitted back to the IC. Where the original decision notice was valid, the FTTIR must re-make the decision itself, since the IC had "exhausted his powers" to do so.

UT precedent prevents FTT(IR) from remitting FOIA decision notice back to IC.

UT (appealing a decision notice in your favour)

Shephard v the Information Commissioner and West Sussex County Council (Council) (GIA/1681/2010) (2010)

The UT granted permission to appeal against a decision of the IT refusing to hear an appeal against a decision notice issued by the ICO upholding the appellant's complaint against the Council. The UT did so on the basis that the well-established principle that a successful party should not be permitted to bring an appeal related to judicial decisions by courts and tribunals, did not necessarily apply to decisions by administrative first-instance decision-makers or independent office holders.

Upper Tribunal holds that parties may appeal against decision notices in their favour (www.practicallaw.com/0-504-1415)

FTTIR

Edward C Behague v Revenue & Customs [2013] UKFTT 596 (TC)

The FTTIR has held that an engagement letter from a law firm to its client (the appellant) attracted limited legal professional privilege (LPP).

The tribunal also considered a memorandum sent by the firm to some of its clients, containing suggested changes to their existing structures. This information, appended to a letter specifically to the client, also attracted LPP as the firm gave this advice to the appellant individually (albeit that this was previously given to several clients as generic advice).

This is a useful illustration of the extent of legal advice privilege and confirms that, while engagement letters do not inherently attract LPP, some sections might do so and that LPP may extend to material potentially revealing the subject matter of advice sought or given.

Legal professional privilege partially attached to engagement letter (First-tier Tribunal) (www.practicallaw.com/5-547-8089)

FTTIR

Wynn v Information Commissioner EA/2011/0084

The FTTIR has upheld a decision of the IC concerning the amount of information that the Serious Fraud Office must disclose under the FOIA relating to its investigation into the collapse of the Equitable Life Assurance Society. The IC found that the SFO was exempt from having to disclose any further information as it was subject to the exemptions in sections 30 and 42 of FOIA and the public interest favoured maintaining these exemptions. The FTTIR has now upheld this decision, holding that the strong public interest in maintaining a safe space to encourage the collection of information to facilitate investigations and successful prosecutions in the criminal arena outweighed the public interest in providing further transparency over the collapse.

FOIA: full details of SFO investigation into Equitable Life do not have to be disclosed (FTT(IR)) (www.practicallaw.com/4-521-3532)

UT

Rob Evans v Information Commissioner [2012] UKUT 313 (AAC)

The UT, overturning the Information Commissioner's decision, has held that advocacy correspondence between Prince Charles and government ministers in 2004 and 2005 was disclosable under the FOIA. In broad terms its ruling was that, although there were cogent arguments for non-disclosure, the public interest benefits of disclosure of advocacy correspondence falling within the claimant journalist's requests generally outweighed the public interest benefits of non-disclosure. Consequently, there was no exemption from disclosure under sections 37(1), 40(2) and 41 of the FOIA.

Upper Tribunal rules advocacy correspondence between Prince Charles and ministers disclosable under FOIA (www.practicallaw.com/7-521-5290)

FTTIR

Montford v Information Commissioner (Case No EA/2009/0114)

The FTTIR has held that the BBC was not required to disclose information about environmental seminars that its staff attended as it fell within the "journalism, art or literature" derogation in Schedule 1 to the FOIA. The FTTIR also held that the information was not "environmental information" under the EIR.

Information on BBC environmental training seminars not within scope of EIR (FTT(IR)) (www.practicallaw.com/5-521-0123)

FTTIR

Efifiom Edem v Information Commissioner and FSA (EA/2011/0168) (2012)

The case was an appeal brought by Mr Edem against a decision notice issued by the IC on 29 June 2011. The appeal arose from a request for information made on 2 April 2010 by Mr Edem to the FSA under the FOIA.

The IC found that the FSA had dealt with some elements of the request in accordance with the requirements of the FOIA, but that it had breached the FOIA by failing to inform the complainant that it held some of the requested information within the 20 working day time limit.

The FTTIR concluded that the IC's findings had been correct and that this was an "unnecessary appeal", for which both Mr Edem and the FSA must take responsibility. It therefore dismissed the appeal.

Note: The UT has set aside this decision.

First-tier Tribunal (Information Rights) dismisses appeal of Information Commissioner's decision on FOIA request made to FSA (www.practicallaw.com/5-518-1187)

Appeal decision: Upper Tribunal (Administrative Appeals Chamber) sets aside First-tier Tribunal (Information Rights) decision (www.practicallaw.com/1-523-9699)

ICO

The Complainant v Outwood Grange Academies Trust (FS50378254) (2011)

On 29 November 2011, the IC published a decision notice setting out its view on when an Academy proprietor will hold information that is subject to FOIA. The IC states that the application of FOIA to a request will be a matter of fact, taking account of the nature of the request and the information as well as the purpose for which the information is held.

ICO decision notice provides guidance on extent to which Academies covered by FOIA (www.practicallaw.com/9-516-3431)

IT (quality of information provided)

Edward Simmons v the Information Commissioner (EA/2005/0003) (2005)

The IT dismissed an appeal by an individual alleging that the Inland Revenue failed to comply with a request for information under FOIA. The IT found that the individual's actual complaint concerned the quality of the information supplied to him. However, this was not a matter which the IT had jurisdiction to consider. The IT explained that its role was to consider how public authorities provide access to information, but not to consider how public authorities exercise their specific powers.

Information Tribunal has no jurisdiction to judge quality of information provided in FOIA request (www.practicallaw.com/1-201-8309)

 

Environmental Information Regulations (EIR)

Regulation 5(1): available on request

Type of decision

Parties and reference

Summary

Link to update

UT

Kirklees Council v Information Commissioner and another [2011] UKUT 104 AAC (2011)

The UT held that the EIR require local authorities to provide access to the information necessary to answer the queries on the CON 29R form free of charge.

EIR require local authorities to allow inspection of CON 29R information free of charge (Upper Tribunal) (www.practicallaw.com/6-505-4508)

ICO

  • The Complainant v the Denbighshire County Council (Council) (FER0275229) (2010)

  • The Complainant v the Isle of Anglesey County Council (Council) (FER0278265) (2010)

  • The Complainant v the Gwynedd Council (Council) (FER0278264) (2010)

The ICO reinforced its view that property search information is environmental and therefore must be made available for inspection free of charge under the EIR regulation 5(1). Therefore, by attempting to charge for the inspection of the information, the Council had breached regulation 8(2)(b) of the EIR.

ICO

The Complainant v the Stoke City Council (Council) (FER0240911) (2009)

The complainant requested to inspect the building control and traffic schemes information within 200 metres of a named address. The Council refused because the information was available through the completion of a standard search form (CON29) and on payment of a fee based on the property search regulations, regulation 6(1)(b) removed the need to comply with regulation 5(1). The ICO investigated and found that the request was to inspect environmental information but that the Council could not use regulation 6(1)(b) to refuse.

ICO reinforces guidance that property search information is likely to be environmental (www.practicallaw.com/6-422-1919)

ICO

The Complainant v the East Riding of Yorkshire Council (Council) (FER0236058) (2009)

The complainant made a request to inspect the building control and traffic schemes information within 200 metres of a named address. The Council agreed to provide the information requested but only on the provision of a fee based on the property search regulations, using regulation 8(1). The ICO investigated and found that the request is a request to inspect environmental information but that the Council cannot charge for the information by virtue of regulation 8(2)(b).

ICO reinforces guidance that property search information is likely to be environmental (www.practicallaw.com/6-422-1919)

Regulation 12(4)(b): manifestly unreasonable

Type of decision

Parties and reference

Summary

Link to update

FTTIR

Yeoman v Information Commissioner and another (EA 2013/0008) and Silverman v Information Commissioner and another (EA 2013/0027)

In its rulings in two cases, the FTTIR applied the UT's recent guidance on "manifest unreasonableness" given in three linked cases, including Information Commissioner v Dransfield [2012] UKUT 440 (AAC).

Applying Dransfield, the FTTIR ordered the disclosure of environmental information in both cases, overturning the IC's decisions to refuse publication because the requests were manifestly unreasonable under regulation 12(4)(b) of the EIR.

EIR cases apply UT Dransfield ruling in "manifestly unreasonable" publication decisions (www.practicallaw.com/1-535-2685).

UT

Information Commissioner v Dransfield [2012] UKUT 440 (AAC), Craven v Information Commissioner [2012] UKUT 442 (AAC) and Ainslie v Information Commissioner [2012] UKUT 441 (AAC)

The UT ruled on the correct test for whether information requests are vexatious (section 14, FOIA) or manifestly unreasonable (regulation 12(4)(b), EIR). The UT stated that:

  • Both tests are the same: namely, whether the disputed request involves the "manifestly unjustified, inappropriate or improper use of a formal procedure".

  • The background and context would be key in deciding each case on its facts.

The rulings were in three separate cases that were heard by the same judge within a short time of each other. They are significant because the FOIA does not give guidance on the meaning of these terms and there has previously been no binding authority from appellate courts or tribunals.

Binding guidance on vexatious and manifestly unreasonable requests (Upper Tribunal) (www.practicallaw.com/1-524-0848)

IT

Little v the Information Commissioner UKIT 2010/0072 (EA/2010/0072) (2010)

The IT considered an appeal against a decision notice of the ICO upholding a refusal by the Welsh Assembly Government (WAG) to provide the appellant with information under the EIR. The information requested related to the disposal of land owned by the Forestry Commission Wales for the purpose of wind farm development. In refusing the request for information, the WAG had relied on the exemption under regulation 12(4). The IT decided that the appellant's request for information was manifestly unreasonable.

EIR: what is a manifestly unreasonable request? (www.practicallaw.com/8-504-3873)

ICO

The Complainant v the Environment Agency (FER0253026) (2010)

The ICO found that the exemption from disclosure for requests that are manifestly unreasonable in regulation 12(4)(b) of the EIR did not apply to information held by the Environment Agency in respect of its monitoring of a river following a pollution incident.

ICO considers when a request will be manifestly unreasonable (www.practicallaw.com/9-503-7386)

ICO

The Complainant v the Walsall Council (Council) (FER0279668) (2010)

The ICO published a decision notice finding that the Council had appropriately withheld information requested in relation to inspection of its building control registers, but only on the basis of regulation 12(4)(b), which the Council had not claimed. The Council had had incorrectly applied several other exceptions and breached various aspects of the EIR, including the obligation to provide advice and assistance.

ICO decision notice: Walsall Council correctly applies "manifestly unreasonable" exception (www.practicallaw.com/3-502-9153)

ICO

The Complainant v the Queen's University Belfast (QUB) (FS5016382) (2010)

The complainant requested electronic data relating to tree ring research. The QUB confirmed it held the information but refused to provide it citing section 12 of FOIA. The QUB subsequently cited the exceptions at regulations 12(4)(d), 12(4)(b), 12(5)(c) and 12(5)(e) of the EIR to refuse the information. The ICO held that none of the exceptions were engaged and the withheld information should therefore be disclosed.

EIR: When is scientific information subject to disclosure? (www.practicallaw.com/7-502-0914)

ICO

The Complainant v the Forestry Commission Scotland (FCS) (number of decisions of similar nature) (FS50190235, FS50176016 and FS50187763) (2009)

The complainants in each case requested information from the FCS. The FCS refused to disclose the information, or to confirm if the information requested was held citing sections 14(1) and 12(1) of FOIA. The ICO investigated and found that sections 14(1) and 12(1) of FOIA were not engaged. However it was held that some of the information should have been considered under the EIR. The FCS applied regulation 12(4)(b) and the ICO concluded that 12(4)(b) was not engaged. The ICO required that the FCS confirm or deny to the complainant if the information requested was held and if held disclose the information to the complainant or issue the complainant with a valid refusal notice under section 17(1) of FOIA or regulation 14 of the EIR.

ICO decision notices in brief for week ending 22 April 2009 (www.practicallaw.com/5-385-8237)

Regulation 12(4)(d): incomplete information

Type of decision

Parties and reference

Summary

Link to update

FTTIR

Wirral Metropolitan Borough Council v Information Commissioner [2012] UKFTT 0117 (GRC)

The FTTIR ruled that draft reports and background papers prepared by political assistants and related council correspondence relating to a council's procurement exercise were not disclosable under the EIR.

The information requested was held to be subject to the incomplete information (regulation 12(4)(d)) and internal communications (regulation 12(4)(e)) exceptions and the public interest was in favour of withholding disclosure. This was to prevent council officers and political assistants being subjected to excessive public scrutiny before the final decision on the procurement exercise and whether to proceed with the proposed procurement was taken.

Draft reports, memoranda and e-mails on procurement exercise not disclosable under Environmental Information Regulations (First-tier Tribunal (Information Rights)) (www.practicallaw.com/9-523-4607)

ICO

The Complainant v the Chichester District Council (Council) (FER0256705) (2010)

The complainant requested information about a planning application made on behalf of the Council. The ICO held that regulation 12(4)(d) did not apply to the information.

ICO holds that estimated costs and valuations of a planning application do fall under regulation 12(4)(e) exception of the EIR (www.practicallaw.com/1-503-0732)

ICO

The Complainant v the Queen's University Belfast (QUB) (FS5016382) (2010)

The complainant requested electronic data relating to tree ring research. The QUB confirmed it held the information but refused to provide it citing section 12 of FOIA. The QUB subsequently cited the exceptions at regulations 12(4)(d), 12(4)(b), 12(5)(c) and 12(5)(e) of the EIR to refuse the information. The ICO held that none of the exceptions were engaged and the withheld information should therefore be disclosed.

EIR: When is scientific information subject to disclosure? (www.practicallaw.com/7-502-0914)

ICO

The Complainant v the Nuclear Decommissioning Authority (NDA) (FER0178729) (2008)

The complainant requested a copy of a draft report produced by the NDA which focused on storage methods for radioactive waste (the final version of the report had already been placed in the public domain). The NDA argued that the draft version was exempt by virtue of the exceptions contained at regulations 12(4)(d) and 12(4)(e) of the EIR and that for both exceptions the public interest favoured withholding the information. The ICO held that the draft report did not fall within the scope of 12(4)(d). However, it was decided that the draft report did fall within the scope of 12(4)(e) and it was satisfied that in all the circumstances of the case the public interest in maintaining the exception outweighed the public interest in disclosing the information.

ICO rules NDA was right to refuse disclosure of draft report on radioactive waste under Environmental Information Regulations (www.practicallaw.com/8-382-9465)

Regulation 12(4)(e): internal communications

Type of decision

Parties and reference

Summary

Link to update

FTTIR

Eastleigh Borough Council v IC (Environmental Information Regulations 2004) [2014] UKFTT (EA/2013/0069) (GRC)

A request was made for background reports, minutes and advice relating to Eastleigh Borough Council's (E) consideration of new housing developments in specific sites. E refused, relying on regulation 12(4)(e) (www.practicallaw.com/5-510-8408) (and on the "drafts" exception in regulation 12(4)(d) in relation to some of the requested documents).

The Information Commissioner originally ruled that E must disclose all the documents. Even where the relevant exceptions were engaged, the public interest in understanding the decision-making process behind a development decision that would affect the local area lay in favour of disclosure. E appealed this decision to the FTTIR.

FTTIR ruled that Eastleigh Borough Council (E) was entitled to rely on the "internal communications" exception in regulation 12(4)(e) of the EIR.

EIR: "internal communications" exception protects housing development council papers from disclosure (FTT(IR)) (www.practicallaw.com/4-554-4626)

FTTIR

Wirral Metropolitan Borough Council v Information Commissioner [2012] UKFTT 0117 (GRC)

The FTTIR ruled that draft reports and background papers prepared by political assistants and related council correspondence relating to a council's procurement exercise were not disclosable under the EIR.

The information requested was held to be subject to the incomplete information (regulation 12(4)(d)) and internal communications (regulation 12(4)(e)) exceptions and the public interest was in favour of withholding disclosure. This was to prevent council officers and political assistants being subjected to excessive public scrutiny before the final decision on the procurement exercise and whether to proceed with the proposed procurement was taken.

Draft reports, memoranda and e-mails on procurement exercise not disclosable under Environmental Information Regulations (First-tier Tribunal (Information Rights)) (www.practicallaw.com/9-523-4607)

HC

Export Credits Guarantee Department (ECGD) v Friends of the Earth (2008) EWHC 638 (Admin)

The High Court dismissed an appeal against the IT's decision that the ECGD should disclose the submissions it received from other government departments in 2003 concerning its funding of the Sakahalin project. The High Court confirmed the IT's decision and held that, although an exception for the government's internal communications applied under regulation 12(4)(e), the documents should be disclosed under the "public interest test".

Government's internal communications on environmental policy are disclosable to the public (www.practicallaw.com/3-381-9586)

FTTIR

Chichester District Council v Information Commissioner EA/2010/0153 (2011)

The FTTIR found Chichester District Council must disclose details of a valuation of land owned by the council and for which the council made a planning application. The FTTIR supported the ICO's findings that, while the valuation was an internal communication covered by the exception to disclosure in regulation 12(4)(e), the public interest required the valuation to be disclosed.

FTT (Information Rights) upholds notice requiring authority to disclose valuation used in planning process (www.practicallaw.com/8-505-3697)

IT

Cabinet Office (CO) v the Information Commissioner (EA/2010/0027) (2009)

The IT partly upheld an appeal against a decision notice issued by the ICO. The decision notice required the CO to disclose briefing notes for the Cabinet and the Prime Minister on the government's energy review. The ICO acknowledged that the information was covered by the exemption in regulation 12(4)(e) of the EIR, and also the importance of allowing a "safe space" for ministers to discuss policy options.

The IT held that due to the short period of time that had elapsed since the decision on nuclear power had been made, the principle of collective responsibility of the Cabinet and the need for those advising ministers to have the confidence to express their views without fear of them being disclosed, the public interest favoured maintaining the exemption in regulation 12(4)(e).

Information Tribunal highlights importance of collective responsibility (www.practicallaw.com/6-503-6091)

ICO

The Complainant v Natural England (FER0261274) (2010)

The ICO found that Natural England correctly applied the exception under regulation 12(4)(e) of the EIR to a request for information about a briefing paper on an area of land known as "The Saltings" in East Sussex. The ICO held the paper was an internal Natural England document aimed at officers and directors and, therefore, engaged the 12(4)(e) exception.

The ICO further held that although there was significant public interest in determining whether the site was an SSSI, the issues surrounding the current designation of the site were still being debated between the landowner and Natural England, and information concerning Natural England's "internal thought processes" should not be disclosed while these negotiations continued.

ICO: "Saltings Project Brief Paper" was withheld information under internal communications exception (www.practicallaw.com/0-503-9950)

ICO

The Complainant v the Chichester District Council (Council) (FER0256705) (2010)

The complainant requested information about a planning application made on behalf of the Council. The ICO held that regulation 12(4)(e) applied to the majority of the information.

ICO holds that estimated costs and valuations of a planning application do fall under regulation 12(4)(e) exception of the EIR (www.practicallaw.com/1-503-0732)

ICO

The Complainant v the Department for Environment, Food and Rural Affairs (Defra) (FER0272686) (2009)

The complainant requested information relating to a meeting that took place between Defra and the Mayor of London. After a delay in providing a response Defra refused to disclose the information citing regulation 12(4)(e). The ICO held that regulation 12(4)(e) was not engaged as the communications were not internal.

Recent decisions under the Environmental Information Regulations 2004 (www.practicallaw.com/8-500-7894)

ICO

The Complainant v the South Gloucestershire Council (Council) (FER0127659) (2009)

The complainant, a developer, asked to be provided with the Development Appraisal used by the Council. The Council applied the exceptions under regulations 12(4)(e) and 12(5)(e) to the majority of the information. The ICO investigated and was not satisfied that either exception was engaged.

ICO decision notices in brief for week ending 22 April 2009 (www.practicallaw.com/5-385-8237)

ICO

The Complainant v the Nuclear Decommissioning Authority (NDA) (FER0178729) (2008)

The complainant requested a copy of a draft report produced by the NDA which focused on storage methods for radioactive waste (the final version of the report had already been placed in the public domain). The NDA argued that the draft version was exempt by virtue of the exceptions contained at regulations 12(4)(d) and 12(4)(e) of the EIR and that for both exceptions the public interest favoured withholding this information. The ICO held that the draft report did not fall within the scope of 12(4)(d). However, it was decided that the draft report did fall within the scope of 12(4)(e) and it was satisfied that in all the circumstances of the case the public interest in maintaining the exception outweighed the public interest in disclosing the information.

ICO rules NDA was right to refuse disclosure of draft report on radioactive waste under Environmental Information Regulations (www.practicallaw.com/8-382-9465)

ICO

The Complainant v the Department for Transport (DfT) (FER0088851) (2008)

The complainant requested information held by the DfT in relation to the proposal for the development of a second runway at Stansted Airport. It sought to rely on regulations 12(4)(e) and 12(5)(b) of the EIR. The ICO decided that the DfT correctly applied regulation 12(5)(b) to the information it argued was covered by this exception. However, it was decided that it incorrectly applied regulation 12(4)(e) to the remaining information and ordered that it be disclosed to the complainant.

Government's internal communications on environmental policy are disclosable to the public (www.practicallaw.com/3-381-9586)

Regulation 12(5)(b): course of justice

Type of decision

Parties and reference

Summary

Link to update

UT

GW v Information Commissioner and others [2014] UKUT 130 (AAC) (2014)

The UT ruled that where legal advice subject to legal professional privilege is requested under the EIR, the "adverse course of justice" exception in regulation 12(5)(b) will not automatically prevent disclosure of that advice.

The applicant, GW, had requested from the Local Government Ombudsman (LGO) a copy of legal advice received by a local authority that the authority had passed to the LGO in confidence, to assist in the LGO's investigation of GW's complaint.

The UT ruled that the mere fact that legal professional privilege attached to the advice did not automatically mean that the disclosure of that advice would adversely affect the course of justice. It was for the public authority to identify and establish any adverse effect on the course of justice that it relied on, in the particular circumstances.

EIR: course of justice exception not automatically engaged by legal professional privilege

FTTIR

Adams v Information Commissioner and Camden Council (EA/2013/0060) (2013)

The FTTIR ruled that documents subject to legal professional privilege should not be disclosed under the "affecting the course of justice" exception in regulation 12(5)(b) of the EIR.

The applicant had requested that Camden Planning Department release the request for legal advice it had received in relation to an application for a Certificate of Lawfulness, plus the legal advice itself.

Document subject to legal professional privilege may be withheld under "course of justice" exception (First-tier Tribunal (Information Rights)) (www.practicallaw.com/5-538-6607).

FTTIR

Skinner v Information Commissioner and another (Case no EA/2010/0184) (2011)

The FTTIR rejected an appeal from a complainant seeking disclosure of legal advice obtained by North Somerset Council (council) concerning an alleged breach of planning control in a neighbouring property.

FTT (Information Rights) dismisses appeal concerning alleged breach of planning control (www.practicallaw.com/2-505-1696)

IT

Stephen West v the Information Commissioner (EA/2010/0120) (2010)

The IT upheld a decision of the ICO finding that the exemption in regulation 12(5)(b) of the EIR applied to a request for the London Borough of Bexley to disclose legal advice obtained about a disputed stock transfer. The IT agreed that the relevant advice was subject to litigation privilege and therefore exempt from disclosure.

IT questions whether EIR exempts legal advice privilege (www.practicallaw.com/1-503-7366)

IT

Surrey Heath Borough Council and another (Council) v the Information Commissioner (EA/2010/0034) (2010)

The IT held that a report prepared by the Council's monitoring officer was not legally privileged, and therefore not exempt from disclosure under regulation 12(5)(b) of the EIR.

Report from monitoring officer did not attract legal professional privilege (www.practicallaw.com/4-503-0716)

IT

Mersey Tunnels Users Association (MTUA) v the Information Commissioner UKIT (EA/2009/0001) (Stage 2) (2009)

This case concerned a decision by the ICO, in respect of a request by MTUA, to Halton Borough Council, for information relating to tolls at one actual, and one proposed, bridge over the River Mersey. The case provided a list of principles for applying the public interest test to public authorities and those seeking disclosure of environmental information of the presumption in favour of disclosure, and when that presumption can be overturned.

When to disclose: principles for applying public interest test under EIR (www.practicallaw.com/2-501-5533)

IT

Woodford v the Information Commissioner (EA/2009/0098) (2009)

The IT dismissed an appeal relating to a request for disclosure of correspondence between St Albans City and District Council and its in-house lawyers. The IT held that the information was protected by legal professional privilege and this did extend to advice given in-house.

Information Tribunal: refusal to disclose environmental information using the legal professional privilege exemption (www.practicallaw.com/0-502-1950)

ICO

The Complainant v the Department for Transport (DfT) (FER0088851) (2008)

The complainant requested information held by the DfT in relation to the proposal for the development of a second runway at Stansted Airport. It sought to rely on regulations 12(4)(e) and 12(5)(b) of the EIR. The ICO decided that the DfT correctly applied regulation 12(5)(b) to the information it argued was covered by this exception. However, it was decided that it incorrectly applied regulation 12(4)(e) to the remaining information and ordered that it be disclosed to the complainant.

Government's internal communications on environmental policy are disclosable to the public (www.practicallaw.com/3-381-9586)

ICO

The Complainant v the Halton Borough Council (Council) (FER0138940) (2008)

The complainant made a request for information to the Council regarding its dealings with the Department for Transport (DfT) about road tolling and a new bridge. The Council disclosed or agreed to disclose much of the information requested, however the Council remained of the view that five of the documents relevant to the request were exempt from disclosure under regulation 12(5)(b) of the EIR. The ICO's decision was that the information was not exempt as it was communications with the DfT, not the Council's legal advisers.

Borough councils on wrong side of ICO decisions (www.practicallaw.com/7-384-7016)

Regulation 12(5)(d): confidentiality

Type of decision

Parties and reference

Summary

Link to update

Court of Appeal

Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council (NCC) (2010) EWCA Civ 1214

The Court of Appeal ruled that documents relating to a company's financial model and profit margin should not be disclosed under section 15 of the Audit Commission Act 1998 (ACA) and that commercial confidential information could be considered as a possession under Article 1 of the first Protocol to the European Convention on Human Rights.

Court of Appeal rules that a company's financial model and profit margin should not be disclosed (www.practicallaw.com/0-503-7946)

Regulation 12(5)(e): commercial or industrial information

Type of decision

Parties and reference

Summary

Link to update

FTTIR

London Borough of Southwark v The Information Commissioner and Lend Lease (Elephant and Castle) Limited and Adrian Glasspool (EA/2013/0163) (2014)

In applying the exceptions to the general right to environmental information contained in regulation 12(5)(e) and (f) of the EIR, the FTTIR considered the extent to which disclosure would adversely affect the confidentiality of commercial information.

The FTTIR accepted that a financial model developed as an analytical tool should not be disclosed as it was a trade secret that required protection, but an agreement should be reached on disclosing the less commercially sensitive information.

Financial model exempt from disclosure but some less commercially sensitive information about development project to be disclosed (FTT(IR))

ICO

The Complainant v Advantage West Midlands Regional Development Agency

The ICO held that information relating the to the nature and scale of contamination of a site (which was formerly a copper refinery) had to be disclosed following a request under FOIA.

The ICO stated that the information requested was environmental information as defined in the Environmental Information Regulations 2004 (SI 2004/3391) (EIR) and asked AWM to reconsider the request under the EIR. AWM responded, withholding the reports relying principally on regulation 12(5)(e). The ICO accepted that the information contained in the reports was commercial and industrial in nature, however, he disagreed that disclosure of them would amount to breach of copyright held by third parties. The ICO also disagreed with AWM's assertion that disclosure of the information could have an adverse effect on those involved in the sale of the site, holding that a large amount of information about the site and its scale of contamination was already in the public domain.

ICO: information on contaminated land should be disclosed (www.practicallaw.com/2-510-5190)

Court of Appeal

Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council (NCC) (2010) EWCA Civ 1214

The Court of Appeal ruled that documents relating to a company's financial model and profit margin should not be disclosed under section 15 of the Audit Commission Act 1998 (ACA) and that commercial confidential information could be considered as a possession under Article 1 of the first Protocol to the European Convention on Human Rights.

Court of Appeal rules that a company's financial model and profit margin should not be disclosed (www.practicallaw.com/0-503-7946)

FTTIR

Elmbridge Borough Council (Council) v the Information Commissioner (Additional Party: Gladedale Group Ltd) (EA/2010/0106) (2011)

The FTTIR dismissed the Council's appeal against the ICO's decision that a viability report prepared as part of a planning application, and containing details on costs, revenues, values and finances of a development in the vicinity of Hampton Court, should be disclosed. Although the Council had pleaded commercial confidentiality and sought to rely on the exceptions in regulation 12(5)(e) and (f) of the EIR, the ICO found that these exceptions were not engaged.

Tribunal orders Council to disclose viability report (www.practicallaw.com/1-504-4343)

FTTIR

Staffordshire County Council v the Information Commissioner (EA/2010/0015) (2010)

The FTTIR considered an appeal by the Council against a decision by the ICO holding that information relating to the sales and reserve figures it had received from quarry operators should be disclosed under regulations 12(5)(e) and (f) of the EIR. The FTTIR overturned the ICO's decision holding that the principles in Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council and others [2010] EWCA Civ 1214 (see above) were relevant and the exception to the presumption in favour of disclosure did apply. Therefore the information requested from the Council about a particular quarry operator quarrying silica sand should not be disclosed.

Information Tribunal holds that confidential information exception applies to presumption in favour of disclosure under the EIR (www.practicallaw.com/9-504-3269)

FTTIR

Bristol City Council (Council) v the Information Commissioner and another (EA/2010/0012) (2010)

The FTTIR found that the ICO had not been correct to conclude that a viability report and associated cost estimate submitted to the Council by a developer did not fall within the exemption for confidential information set out in regulation 12(5)(e) of the EIR. However, the FTTIR held that as a result of regulation 12(2), the EIR still required that the documents be disclosed because it was in the public interest to do so.

Information Tribunal orders disclosure of confidential development appraisal (www.practicallaw.com/5-502-3796)

IT

Mersey Tunnels Users Association (MTUA) v the Information Commissioner UKIT (EA/2009/0001) (Stage 2) (2009)

This case concerned a decision by the ICO, in respect of a request by MTUA, to Halton Borough Council, for information relating to tolls at one actual, and one proposed, bridge over the River Mersey. The case provided a list of principles for applying the public interest test to public authorities and those seeking disclosure of environmental information of the presumption in favour of disclosure, and when that presumption can be overturned.

When to disclose: principles for applying public interest test under EIR (www.practicallaw.com/2-501-5533)

IT

South Gloucestershire Council (Council) v the Information Commissioner and Bovis Homes Limited (Bovis) (EA/2009/32) (2009)

The Council appealed the ICO's decision that information contained in a number of consultants' appraisals should be disclosed to Bovis. The IT held that the Council was not entitled to treat the appraisals prepared by the consultants as internal communications but allowed the Council's appeal on the basis that the information in the appraisals was confidential, commercial information within regulation 12(5)(e). The public interest balance weighed in favour of maintaining the exception and the Council had been lawfully entitled to withhold the requested information.

Disclosing consultants' reports under the Environmental Information Regulations 2004 (www.practicallaw.com/6-500-5947)

ICO

The Complainant v the Solihull Metropolitan Borough Council (FS50297633) (2010)

The ICO ordered the disclosure of information contained in a conditional development agreement between the Council and a developer that set out the basis on which a development scheme must be delivered. The Council disclosed a redacted version of the agreement with information on certain financial aspects removed on the basis that it was exempt from disclosure under regulation 12(5)(e). The ICO held that all of the remaining redacted information, including that relating to the financial implications of the proposed development not proceeding did not protect a legitimate economic interest and therefore had to be disclosed.

ICO orders disclosure of confidential information (www.practicallaw.com/8-504-3284)

ICO

The Complainant v the Gwynedd County Council (FER0260086) (2010)

The ICO ordered the disclosure of a developer's detailed financial appraisal for a redevelopment project and details of the developer's formal offer for the relevant site with a high level breakdown of land values and unique costs associated with the development. The Council refused a request for the information on the basis that it was exempt from disclosure under regulation 12(5)(e). The ICO concluded that at the time of the request, the agreement had been signed and the development constructed, maintaining the confidentiality no longer served to protect a legitimate economic interest and that the information should be disclosed.

ICO orders disclosure of confidential information (www.practicallaw.com/8-504-3284)

ICO

The Complainant v the Queen's University Belfast (QUB) (FS5016382) (2010)

The complainant requested electronic data relating to tree ring research. The QUB confirmed it held the information but refused to provide it citing section 12 of FOIA. The QUB subsequently cited the exceptions at regulations 12(4)(d), 12(4)(b), 12(5)(c) and 12(5)(e) of the EIR to refuse the information. The ICO held that none of the exceptions were engaged and the withheld information should therefore be disclosed.

EIR: When is scientific information subject to disclosure? (www.practicallaw.com/7-502-0914)

ICO

The Complainant v the London Borough of Hammersmith and Fulham (Council) (FS50255081) (2010)

The complainant requested the names and addresses of the Council's pre-paid waste sack clients under the EIR. The ICO held that the 12(5)(e) exception was engaged apart from the first three digits of the clients' postcodes, which had to be disclosed. The public interest test favoured the remaining information being withheld.

ICO orders disclosure of first three digits of pre-paid waste sack clients' postcodes (www.practicallaw.com/0-503-1124)

ICO

The Complainant v the Nottinghamshire County Council (Council) (FER0206320) (2010)

The ICO held that the public interest required the Council to disclose parts of a waste PFI contract. The ICO agreed that the exemption relating to confidential information contained in regulation 12(5)(e) of the EIR did apply to the request, but found that the public interest in maintaining this exemption was outweighed by the public interest in disclosing the information.

ICO decision notices in brief for week ending 17 July 2010 (www.practicallaw.com/6-502-7845)

ICO

The Complainant v the Chichester District Council (Council) (FER0256705) (2010)

The complainant requested information about a planning application made on behalf of the Council. The Council provided some information, stated that other information was not held, and withheld other information using section 43 of FOIA. The ICO stated that the information should have been considered under the EIR and the Council refused the request under regulation 12(5)(e). The ICO held that regulation 12(5)(e) did not apply but that regulation 12(4)(e) applied to the majority of the information.

ICO holds that estimated costs and valuations of a planning application do fall under regulation 12(4)(e) exception of the EIR (www.practicallaw.com/1-503-0732)

ICO

The Complainant v the South Gloucestershire Council (Council) (FER 0127659) (2009)

The complainant, a developer, asked to be provided with the Development Appraisal used by the Council. The Council dealt with the request under the FOIA and following its internal review, dismissed the appeal. This prompted the complainant to submit a further request specifically asking for the information under the EIR. This time the Council responded under the EIR and applied the exceptions under regulations 12(4)(e) and 12(5)(e) to the majority of the information. The ICO investigated and was not satisfied that either exception was engaged.

ICO decision notices in brief for week ending 22 April 2009 (www.practicallaw.com/5-385-8237)

ICO

The Complainant v the East Riding of Yorkshire Council (Council) (FER0066052) (2008)

The ICO ordered the Council to disclose information in a waste management contract that it had agreed with an independent contractor. The ICO accepted that regulation 12(5)(e) of the EIR applied but held that the public interest in disclosing certain information over-rode the public interest in maintaining the commercial confidentiality exception.

ICO orders disclosure of waste management contract (www.practicallaw.com/6-381-1701)

Regulation 13: personal data of which the applicant is not the data subject

Type of decision

Parties and reference

Summary

Link to update

FTTIR

GM Freeze v Information Commissioner and another (Case no EA/2010/0112) (2011).

The FTTIR dismissed an appeal dealing with a request for disclosure of the National Grid reference of a site that had sown a trial crop of oilseed rape that had turned out to be contaminated by genetically modified seed as the information was exempt under regulation 13.

FTT (Information Rights): sowing of GM-contaminated seeds cannot be described as an "emission" under the EIR (www.practicallaw.com/5-505-2034)

ICO

The Complainant v the London Borough of Hackney Council (Council) (FS50315994) (2011)

The complainant requested information about the East Marsh wind turbine survey. The Council handled the request under FOIA and disclosed some of the requested information, but withheld the remainder as personal data citing section 40(2) FOIA. The ICO held that the Council should have dealt with the request under the EIR. The ICO held, under regulation 13 of EIR, that the withheld information was not personal data. The ICO also found that regulation 12(5)(d) (confidentiality of proceedings) did not apply. The ICO therefore ordered the Council to disclose the information.

ICO confirms the correct test to be applied to the disclosure of IP addresses (www.practicallaw.com/7-506-7949)

ICO

The Complainant v the Cardiff County Council (Council) (FS50199873) (2009)

The ICO found that details of the signatories to a privately-prepared petition presented to the Council were exempt from disclosure under the EIR. The ICO also found that the Council had been wrong to consider the matter under FOIA, as although the content of the petition was not environmental information in itself, it related to an environmental issue.

ICO decision notice in brief for week ending 12 May 2009 (www.practicallaw.com/5-385-9166)

Other EIR decisions

Type of decision

Parties and reference

Summary

Link to update

FTTIR (Regulation 8)

East Sussex County Council v Information Commissioner and Property Search Company and the Local Government Association (EA/2013/0037)

The FTTIR requested a preliminary ruling from the ECJ in relation to what charges public authorities can lawfully make for supplying environmental information under Article 5(2) of Directive 2003/4/EC (implemented in England by the Environmental Information Regulations 2004 (SI 2004/3391) (EIR)). The questions referred are made in the context of a local authority charging to provide CON 29R property search information and are:

  • What does Article 5(2) of Directive 2003/4/EC mean? Can a charge for supplying environmental information include the costs of maintaining a database used to answer requests for information and/or any overhead costs attributable to staff time?.
  • Is it consistent with Directive 2003/4/EC for a member state to provide in its regulations that a public authority may charge an amount for supplying environmental information which does "not exceed an amount which the public authority is satisfied is a reasonable amount" if the decision of the public authority as what is a "reasonable amount" is subject to administrative and judicial review as provided for under English law?.

The ability to charge for providing property search information has been the subject of considerable case law which appeared to have been resolved in 2013, when the FTTIR ruled that local authorities could only charge for disbursements under the EIR (Leeds City Council v Information Commissioner and others (EA/2012/0020 and 0021)). However, that decision has proved to be contentious and while Leeds City Council chose not to appeal, it is not a surprise that the issue has arisen again.

Request made for a preliminary ruling in respect of property search form questions and charging under the EIR (FTT(IR)) (www.practicallaw.com/3-558-0605)

ECJ (Regulation 2(2)(c) and 2(2)(d) - bodies covered by the EIR)

Fish Legal and another v Information Commissioner and others [2013] EUECJ C-279/12

The ECJ Grand Chamber ruled that:

  • The test for whether companies perform "public administrative functions" and are therefore public authorities under Article 2(2)(b) of the Directive is whether they have special legal powers beyond private law powers.
  • Commercial entities are capable of being public authorities by virtue of Article 2(2)(c) of the Directive (bodies that are under the control of a public authority), if they do not genuinely autonomously determine how they provide their services and their controlling public authority "is in a position to exert decisive influence on their action in the environmental field".
  • A commercial service provider that is only a public authority because it is under the control of another public authority is not required to provide environmental information that does not relate to the provision of the relevant services.

ECJ ruling on determining whether water companies are public authorities under EIR (www.practicallaw.com/9-553-7765)

FTTIR

Department for Education v Information Commissioner (EA/2013/0107 & 0108)

The First-tier Tribunal (Information Rights) has held that a request for information regarding the decision to dispose of school playing fields should be dealt with under the EIR 2004, instead of the FOIA 2000.

The Department for Education (DfE) refused the request, relying on the section 36 FOIA exemption covering the free and frank exchange of views within public authorities. The Information Commissioner ruled that the information must be disclosed under the EIR.

Discussions whether to sell school playing field must be disclosed under EIR, not FOIA (FTT(IR)) (www.practicallaw.com/3-546-2145)

ECJ

Fish Legal v The Information Commissioner United Utilities, Yorkshire Water and Southern Water [2013] EUECJ C-279/12

The Advocate General gave his opinion on the question of who is a public authority under the EIR.

Advocate General Cruz Villalón's Opinion suggested that a natural or legal person is:

  • A public authority if they can impose on obligations on individuals without their consent.
  • Under the control of a public authority if they cannot act with real autonomy in private affairs so that they are instruments of the will of the state.

The Advocate General also suggested that bodies or persons which are public authorities in relation to certain functions, and therefore subject to the EIR, may not be subject to the EIR in respect of their other activities.

Advocate General defines test to determine who is a public authority under Environmental Information Regulations 2004 (www.practicallaw.com/7-540-7166)

FTTIR

Montford v Information Commissioner (Case No EA/2009/0114)

The FTTIR has held that the BBC was not required to disclose information about environmental seminars that its staff attended as it fell within the "journalism, art or literature" derogation in Schedule 1 to the FOIA. The FTTIR also held that the information was not "environmental information" under the EIR.

Information on BBC environmental training seminars not within scope of EIR (FTT(IR)) (www.practicallaw.com/5-521-0123)

ECJ

Flachglas Torgau GmbH v Federal Republic of Germany [2012] EUECJ C-204/09

In two judgments, the ECJ has provided guidance on the extent of the exemption for authorities acting in a legislative capacity from having to provide access to environmental information under the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention).

This decision has specific relevance to England and Wales because the exemption set out in the Aarhus Convention is mirrored by regulation 3(3) of the EIR.

Clarification of exemption from access to environmental information for bodies acting in legislative capacity (ECJ) (www.practicallaw.com/8-518-1299)

ECJ

Solvay and others v Région Wallone [2012] EUECJ C-182/10

In two judgments, the ECJ has provided guidance on the extent of the exemption for authorities acting in a legislative capacity from having to provide access to environmental information under the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention).

This decision has specific relevance to England and Wales because the exemption set out in the Aarhus Convention is mirrored by regulation 3(3) of the EIR.

Clarification of exemption from access to environmental information for bodies acting in legislative capacity (ECJ) (www.practicallaw.com/8-518-1299)

FTTIR (Regulation 2(2) - bodies covered by the EIR)

Bruton v Information Commissioner (EA/2010/0182) (2010)

The FTTIR has held that the Duchy of Cornwall is a public authority for the purposes of the EIR.

Duchy of Cornwall is a public authority under the EIR 2004 (FTT(IR)) (www.practicallaw.com/0-511-2790)

UT (Regulation 2(2)(c) and 2(2)(d) - bodies covered by the EIR)

Smartsource Drainage and Water Reports Limited v the Information Commissioner (GI/2458/2010) (2010)

The UT upheld a decision by the ICO finding that water and sewerage companies or water only companies are not public authorities for the purposes of regulation 2(2)(c) or (d) of the EIR, and therefore the ICO was correct to rule that they had no jurisdiction to consider the complaint.

Upper Tribunal holds that water and sewerage companies are not public authorities under the EIR 2004 (www.practicallaw.com/2-504-0641)

IT (Regulation 2(2) - bodies covered by the EIR)

Cross v the Information Commissioner (EA/2010/0101) (2011)

The IT held that the Duchy of Lancaster is not a public authority for the purposes of regulation 2(2) of the EIR because it is separate from the Crown and is not a government department.

First-tier Tribunal (Information Rights) holds that Duchy of Lancaster is not a public authority for purposes of EIR (www.practicallaw.com/9-504-3896)

IT (Regulations 2(2)(c) and 2(2)(d) bodies covered by the EIR)

Network Rail Limited v the Information Commissioner and others (EA/2006/0061 and EA/2006/0062) (2007)

The IT, upholding an appeal from a decision of the ICO, ruled that Network Rail does not constitute a public authority within the meaning of the EIR, and is therefore not required to respond to requests for environmental information made under the EIR. In reaching its decision, the IT adopted a narrow interpretation of the term "functions of public administration" used in the EIR. This decision, coupled with the ICO's earlier decision that Network Rail was not a public authority for the purposes of FOIA, means that Network Rail is not subject to any statutory obligation to respond to requests for information relating to its business.

Information Tribunal rules on status of Network Rail (www.practicallaw.com/8-376-2295)

FTTIR (Regulation 2(1) - definition of Environmental Information)

Omagh District Council v the Information Commissioner (EA/2010/0163) (2011)

The FTTIR upheld the ICO's decision that a request for the names, departments and job titles of those officers of the council who conducted an equality impact assessment on the council's policy of disposing of land for the purpose of erecting or retaining a memorial or monument was a request for environmental information under the EIR (within the meaning of regulation 2(1)(c)).

Request for details of council officers conducting an impact assessment falls within the EIR regime (First-tier Tribunal) (www.practicallaw.com/0-506-2484)

FTTIR

Uttlesford District Council v Information Commissioner (EA/2011/0269 & 0285),

The FTTIR upheld the council's appeal against the Information Commissioner's decisions that the council should disclose draft committee reports and e-mails between officers and members of the council on whether particular members were eligible to vote on a planning application. The Tribunal found the request for disclosure of the e-mails, which addressed questions of probity, did not fall within regulation 12(5)(b) of the EIR and should have been considered under the FOIA. The FTTIR was also satisfied that the draft reports passing between the council and its legal adviser fell within the scope of legal professional privilege.

First-tier Tribunal holds that draft committee reports and e-mails between officers and members on probity issue exempt from disclosure (www.practicallaw.com/3-519-8476)

ICO (Regulation 2(1) - definition of Environmental Information)

The Complainant v the Department for Energy and Climate Change (DECC) and Central Office of Information (COI) (FS50289581 and FS50245247) (2010)

The ICO found that the information that the complainant requested from the COI and the DECC, which focused on a Greenpeace complaint about a consultation the government had carried out on nuclear power in the UK, should not have been handled as a request under FOIA. It constituted environmental information as defined in regulation 2(1) of the EIR and should have been considered under that regime. Therefore, the public authorities were required to provide a response to the requests for information under the EIR.

Requests for information on a nuclear power consultation should have been dealt with under the Environmental Information Regulations 2004 (www.practicallaw.com/1-502-5274)

ICO (Regulation 2(1) - definition of environmental information)

The Complainant v the Bedford Borough Council (Council) (FS50281827) (2010)

The ICO held that the Council had incorrectly considered the requests under FOIA, when the information was environmental, so the EIR was the correct regime. The decision notice highlights the need for public authorities to remember that the ICO has consistently adopted a wide interpretation of when information will be environmental for the purposes of the EIR.

ICO decision notices in brief for week ending 17 July 2010 (www.practicallaw.com/6-502-7845)

UT (late reliance on an exemption)

DEFRA v Information Commissioner and another [2011] UKUT 39 (AAC)

The UT held that public authorities which initially relied on particular exemptions or exceptions under FOIA or the EIR may later rely on additional or different exemptions or exceptions, without the permission of the IC or the FTTIR.

Authorities entitled to claim FOIA and EIR exemptions late (Upper Tribunal) (www.practicallaw.com/4-504-7552)

FTTIR (Regulation 6(1)(a) - Information requested in a particular format, and Regulation 8(2) - Not charging for certain information)

Leeds City Council v Information Commissioner and others (EA/2012/0020 and 0021)

The FTTIR ruled on the types of costs that a public body may charge for providing environmental information in another format than on site inspection, when that information is requested by way of inspection, under the EIR.

It ruled that regulation 8(2) of the EIR prevented public bodies from charging to allow applicants to inspect information on site.

The only types of charge the EIR permit when providing information in an alternative format to inspection (where inspection was requested) are disbursements. Public bodies may not charge "for the cost of administrative tasks or administrative acts which may include, but are not necessarily limited to, time spent by staff in locating, retrieving or redacting the information requested".

Local authorities may only charge disbursement costs of providing CON 29R information under EIR (First-tier Tribunal (Information Rights)) (www.practicallaw.com/8-525-4479)

FTTIR (Regulation 12(4)(a) - Information not held when receiving a request)

Keiller v Information Commissioner (EA/2011/0152) (2011)

The FTTIR has found that a copy of an e-mail held on a back up server was held for the purposes of regulation 12(4)(a) of the EIR, even though the original copy of the e-mail had been deleted by its sender from his computer.

E-mail deleted but still held on back up system held for FOI purposes (FTT(IR)) (www.practicallaw.com/0-517-4504)

FTTIR (Regulations 12(5)(a) - disclosure and 12(4)(e) - international relations)

Sinclair v Information Commissioner (EA/2011/0052) (2011)

The FTTIR has held that the Department for Energy and Climate Change (DECC) was not required to disclose information relating to the costs of the UK meeting its pledge to reduced carbon dioxide emissions by 42% by 2020 (from 1990 levels).

DECC not required to disclose information on meeting carbon dioxide emissions reduction pledge (FTT(IR)) (www.practicallaw.com/0-511-6910)

ECJ (Regulations 12(5)(a) (public safety) and 12(5)(c) (IPR))

Office of Communications (Ofcom) v the Information Commissioner (Case C-71/10) (28 July 2011)

The ECJ has ruled, on a reference from the UK Supreme Court under the directive on public access to environmental information (Directive 2003/4/EC), that a public authority may, when weighing the public interests served by disclosure against the interests served by refusal to disclose, take into account cumulatively a number of the grounds for refusal set out in the Directive.

ECJ rules on environmental information disclosure exceptions (www.practicallaw.com/4-507-1090)

Supreme Court (Regulations 12(5)(a) (public safety) and 12(5)(c) (IPR))

Office of Communications (Ofcom) v the Information Commissioner (2010) UKSC 3

The UK Supreme Court referred to the European Court of Justice (ECJ) a question about the interpretation of Directive 2003/4/EC on public access to environmental information, which has been implemented in the UK by the EIR. The question arose from a request for information from Ofcom about mobile-phone base stations held within the Sitefinder database. The Court of Appeal reversed the decisions of the High Court and the IT that the interests served by the exemptions, provided by regulations 12(5)(a) and 12(5)(c) of the EIR, must be considered separately. The Supreme Court was divided in its view but considered that the answer lies in the interpretation of the Directive.

See ECJ decision above.

Supreme Court refers EIR exceptions question to ECJ (www.practicallaw.com/4-501-3458)

ICO (Regulation 12(5)(c) (IPR))

The Complainant v the Queen's University Belfast (QUB) (FS5016382) (2010)

The complainant requested electronic data relating to tree ring research. The QUB confirmed it held the information but refused to provide it citing section 12 of FOIA. The QUB subsequently cited the exceptions at regulations 12(4)(d), 12(4)(b), 12(5)(c) and 12(5)(e) of the EIR to refuse the information. The ICO held that none of the exceptions were engaged and the withheld information should therefore be disclosed.

EIR: When is scientific information subject to disclosure? (www.practicallaw.com/7-502-0914)

 
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