Transcript FOI Update - Cornerstone Barristers

FOI Update
Damien Welfare
3rd December 2007
Section 11 - format

Bath and NE Somerset (FS50094281), 17th
May 07: local authority not required to resend
information in a different format to that it which
it had already been supplied to the applicant.
Section 12 – cost limit
Government’s proposals to amend regulations
dropped
 John Jenkins v DEFRA (IT) (EA/2006/0067),
2nd Nov 07: “extracting” information does not
include redacting exempt information, for the
purposes of Reg 4(3)(d).

Section 14 - vexatiousness
E Riding of Yorkshire (FS50154968), 27th Sept 07:
information relating to H&S policy and procedures.
Withheld on ground was vexatious
 IC: given history of correspondence on risk assessment,
request would impose significant burden in terms of
expense and distraction, was designed to cause
disruption and annoyance, had effect of harassing and
could be characterised as obsessive – correctly withheld
under s 14.

Section 35 – policy formulation
HM Treasury v IC (IT) (EA/2007/0001), 7th Nov 07:
content of Budget submissions to Chancellor re Income
Tax in 1999.
 IC found balance of public interest favoured disclosure.
HMT appeal re public interest.
 IT agreed with Commissioner, save for one element.
 HMT appeal allowed over advice and assistance

Section 36 – public affairs
FCO (FS50072316), 3rd May 07: draft of dossier on
WMD in Iraq. Refusal under s 36(2)(b)(ii) was
incorrect. IC rejected “chilling effect” on drafting
process. Two years since drafting. FCO arguments were
general, not relevant to case.
 Gloucs CC (FS50131785), 19th Nov 07: information on
options for savings. Where directly related to the
options, was correctly exempted under s 36

EIR Reg 12(4)(e)–
internal communications
DCLG (FER0086093), 25th June 07: disclosure ordered
of whole of Ministerial submission in planning matter
after decision taken. Internal emails withheld.
 Followed L Baker of Dorking case (last seminar).
Profound implications for collective responsibility
 Treating request for planning permission as falling
under EIR, not FOIA, was consistent with earlier
decisions. [Should now be seen as norm].

Section 38 – health and safety
NHS Direct (FS500108885), 30th July 2007:
geographic telephone numbers behind 0845 numbers
used for NHS Direct.
 Disclosure at that time could result in delays to calls
(new system imminent, after which disclosure
possible).
 Public interest arguments which justified endangering
health & safety difficult to envisage

Section 40 – third party
personal data
King’s College (FS50095109), 20th Nov 07: Apparent
change of direction [from Corby (Aug 05)] over
disclosure of salary etc of senior staff:
 See also Calderdale Council (FS50074995), City of
York (FS50123921), W Cheshire PCT (FS50102203),
and George Eliot Hospital (FS50104995).

Section 40 (cont)

Corporate Officer of Hse of Commons v IC
(IT) (EA/2006/0074-0076), 9th Aug 07
 Information relating to travel expenses of an MP,
going beyond the “Baker” case
 IT upheld IC decisions and dismissed appeal
Section 40 (cont)
Preston CC (FS50147437), 30th Aug 07: request
relating to registered occupancy of a property for
council tax purposes was exempt s personal data
 Barrow BC (FS50136509), 30th Aug 07: information
relating to rent arrears on individual garages. Exempt as
personal data under s 40.
 Cambs CC (FS50107704), 10th Sept 07: ditto
attendance in work of individual on specific day

Section 40 (cont)
LB Camden (FS50115331), 8th Nov 07.
Questions in relation to evictions exempt under s
40.
 E Sussex CC (FS50142680), 27th Sept 07:
Letter from Dir of Children’s Services to a
Judge.Withheld under s 36 and s 40. Held
exempt under s 40.

Section 42- legal professional
privilege
Cheltenham BC (FS50117045), 21st May 07:
submissions to Counsel in seeking advice on an ASBO
application covered by s 42 exempt. Public interest
favoured non-disclosure, following Bellamy and
Kitchener in IT.
 Hearing Aid Council (FS50131421), 23rd July 2007: s
42 does not cover refusal to confirm or deny whether
legal advice held, when none received.

Section 43 – commercial interests
Trafford MBC (FS50153399), 9th July 2007:
disclosure of bids for property sold by informal tender
would not prejudice council’s commercial interests. S
43 not engaged.
 LB Camden (FS50109533), 29th Oct 07: list oif
shops/premises visited by bailiffs for rent debts/council
tax. Exempt under s 43, and public interest favoured
non-disclosure.

S 44 and LG Access to Information
regime
Vale of Glamorgan (FS50090383), 30th July
2007: exempt information under Sch 12A, LGA
1972, does not fall under the statutory bar to
disclosure in s 44, FOIA
 That regime operates only to exempt
information for the purposes of the formal
decision-making processes of the authority.

Section 51(5): appeal against
Information Notice
Min of Justice v IC (IT) (EA/2007/0016), 6th Aug 07:
Attorney General’s legal advice on Public Interest test.
Dept refused to confirm or deny.
 Information Notice from IC
 Advice would relate specifically to Act, so disclosure
would give IC an unfair advantage.
 MoJ not obliged to comply with Information Notice.

Section 36 (cont)
Dept for Educ and Skills (FS50096973), 17th
Sept 07: request for list of schools considered
suitable to become academies.
 Refusal, citing s 36, applied correctly

EIR – Reg 12(5)(f)
Redcar and Cleveland (FER0066999), 17th
Sept 07: pre-application planning discussions.
Exempt under Reg 12(5)(f): information
provided by volunteer
 Tunbridge Wells BC (FER0086785), 10th Oct
07: Reg 12(5)(f) and Reg 13 did not apply to
personal data contained in reports on planning
control matter

EIR – advice and assistance

Keston Ramblers v IC and LB Bromley (IT)
(EA/2005/0024 ), 26th Oct 07; where fees may
be charged, duty to advise and assist means
authority should first offer opportunity to inspect
documents before copying them.
Failure to cite correct exemption

IC now finding Act breached where finds for the
authority, but on different ground from that
originally claimed (or where authority amends
its grounds during course of matter).
 eg FSA (FS50113714), 17th Sept 07; Royal
Mail (FS50122723), 19th Nov 07; DCMS
(FS50122983), 19th Nov 07.
Definition of personal data
“Data Protection Technical Guidance:
determining what is personal data” (IC, Aug 07)
 Clear and helpful guidance, replacing guidance
following the Durant case
 Further IC guidance expected soon on definition
of “relevant filing system”
