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”