Friday, January 13, 2006

Latest decisions - encouraging signs for 2006

First decisions of 2006: the first case (DTI) is interesting as the ICO note:"It is open to question whether the request made on the 12th January 2005 was a valid request under section 1 of the Act as it was not expressed as a request for specific information.However the DTI did not challenge its status.". It also an important cases as it is a sign of the ICO starting to tackle the more complex cases involving public interest issue tests (in this case the S30 exemption -investiagtions and proceedings), in this case the decision states that the public interest was weighted in disclosure. Well worth reading the detailed discussion provided.
The second case is also important as it starts to deal with the issue of redacting civil servants names using S40: "The Commissioner’s decision is that this personal information can be disclosed without contravening any of the principles of the Data Protection Act 1998 and that therefore the exemption provided by section 40 is not engaged." The DFES refusal notice is also critcised for failing to:"explain what weight was given to these interests or what public interest arguments it had considered in favour of maintaining the exemption." This decision is the first time the Commissioner has ruled in favour of disclosure related to exemption 35(1)(a). Formulation of Govt Policy: "The Commissioner’s decision is that, in all the circumstances of this particular case, the public interest in maintaining the exemption does not outweigh the public interest in disclosing the information.....The Commissioner recognises that frank and honest debate is necessary for high quality policy formulation and that there is a public interest, in appropriate situations, in maintaining private space for discussion away from public scrutiny to formulate policy. But this is not to imply that all the records of all discussions relating to the formulation of policy must be kept confidential."

The implications are that for policy formulation, a blanket use of the exemption with generic reasoning is enough to justify disclosure and an assessment must always be made of what information in the actual context of the documents may be released and that detailed balancing the PI test must take place.

Again, well worth reading the full decision in full.

Case Ref: FS50068235
Date: 05/01/06
Public Authority: Department of Trade and Industry (DTI)
Summary: The complainant requested the reason for the investigation of a property management company. The DTI did not challenge whether this was a request for specific information and therefore treated this as a valid request under the FOI Act. The DTI refused to release the information citing the exemption provided by section 30 (1)(b) and 30(2)(i) and (b). Section 30 covers investigations and proceedings conducted by public authorities. The DTI argued that disclosure could identify those complaining to it and prejudice its ability to carry out its functions effectively. The Commissioner has agreed that section 30 was applied correctly to the information sought by the complainant, but he has decided that in this particular case, the
public interest test in disclosing the information in outline terms, as
detailed in the Decision Notice, outweighed the public interest in withholding
the information.
Section of Act/EIR & Finding: FOI s.30 - Complaint Upheld
Full Transcript of Decision Notice FS50068235

Case Ref: FS50074589
Date: 04/01/06
Public Authority: Department for Education and Skills (DfES)
Summary: The request was for minutes of senior management meetings at the DfES relating to the setting of school budgets in England between June 2002 and June 2003. Although some information was provided the majority of the information requested was withheld under section 35(1)(a), on the basis that the information related to the formulation and development of government policy. During the investigation the DfES also claimed that one particular minute related to Ministerial communications and so was exempt under section 35(1)(b) and that the identities of civil servants involved in the meetings were exempt under section 40(2) - personal information. Although the Commissioner accepted that the section 35 did apply to the majority of the information, the exemption could not be maintained in the public interest. Similarly the exemption provided by section 35(1)(b) could not be maintained in the public interest. The Commissioner decided section 40 was not engaged.
Section of Act/EIR & Finding: FOI s.35 - Complaint Upheld; s.40 - Complaint
Full Transcript of Decision Notice FS50074589

No comments: