Sunday, May 14, 2006

Recent decision notices issued by the Information Commissioner's Office

Catching up with the decisions issued while I've been away: again some interesting cases involving the S40 exemption on personal data. The NHS Purchasing and Supplies Agency case is interesting to those practitioners working in the public sector with private sector data and those outside trying to get this type of information released or protect it: the decision upheld the complaint and would seem to set a clear predecent about this type of general of information (phone numbers) cannot be protected by S40 in most circsustances. It's also interesting that an information notice was issued in this case (see my previous posting about the low level of use of these powers by the ICO under S51 of the FOIA). The decision also highlights the importance of having a robust case for proving that information is not held. (Well done to one of my Undergraduate students on my BSc E-business Course who made this request and took the case to the ICO)

The Cabinet Office decision in relation to the S17 complaint links to one of the issues I raised in the evidence I gave to the recent Select Committee inquiry into FOI about not enough detail being given by some public authorities when issuing refusal notices and not stating that searches have been undertaken. This decision also documents a more robust approach by the ICO in that a member of the ICO staff went to London to visit the Cabinet Office and view the archive in question. The notice also contains some useful best practice guidance: "the Commissioner believes that, where a public authority is citing, or should cite, the cost limit, they should provide to the requester a breakdown of how their cost estimate was formed. The Cabinet Office provided no such breakdown to the complainant in this instance when initially responding to the request."

I also agree with the pragmatic appraoch the ICO takes to the Council House data in the Mid Devon Case, the context is also interesting as the the complainant was a member of the Council, who stated that he requested the names and addresses of tenants so that he could send them information concerning the proposed transfer to council housing stock to a Registered Social Landlord. This is also the first documented case where the application for a decision has been expedited (concept is common in other jursidictions - expedited applications can be made under the US FOIA). The main problem is that expediting requests at first application or the decision stages is not part of the text of FOIA and is therefore is a fairly subjective judgement by the ICO (a stated ICO policy on this would be a good way forward).


Case Ref: FS50075171
Date: 05/05/06
Public Authority: Transport for London
Summary: The complainant requested access to files on the prosecutions brought for fare dodging on London buses. The information was withheld under the exemptions provided by section 40(2) - personal information about third parties, and section 21 - information accessible to the applicant by other means. The Commissioner found that the information constituted sensitive personal data about third parties and that to disclose the information would contravene the first data protection principle. Therefore, all the information that had been withheld was exempt information. However, in relation to the application of section 21, Transport for London initially argued that, as some of the information had been discussed in open court, it would be accessible via the relevant court record. However, the Commissioner found that the applicant would not easily be able to identify the court records that interested him and, even if he could, he would not necessarily be granted access to those records.
Section of Act/EIR & Finding: FOI s.40(2) - Complaint not upheld, FOI s.21 - Complaint upheld
Full transcript of Decision Notice FS50075171

Case Ref: FS50063717
Date: 04/05/06
Public Authority: Department of Health (NHS Purchasing and Supplies Agency)
Summary: The complainant requested a list of NHS suppliers together with fax and telephone numbers. Although the list of NHS suppliers was provided, the fax and telephone numbers were refused on the grounds that the information comprised personal data and that disclosure would breach the Data Protection Act. The Commissioner contacted the public authority which advised him that the true ground for refusal was that this information was not held by them, but rather by a private sector contractor. The Commissioner was not persuaded that the information was not held by the public authority. Moreover he was not persuaded that disclosure of the requested information would breach the Data Protection Act. He therefore upheld the complaint.
Section of Act/EIR & Finding: FOI s.1 - Complaint upheld, s.40(2) - Complaint upheld
Full Transcript of Decision Notice FS50063717

Case Ref: FS50082890
Date: 04/05/06
Public Authority: Mid Devon District Council
Summary: The complainant's request for a list of council houses was refused on the basis that, combined with other information which the complainant might possess or have access to (such as the Electoral Roll), the requested information was personal data of which the complainant was not the subject. It was argued by the council that disclosure would breach the data protection principles. The Commissioner agreed that the requested information constituted personal information but found that providing the list of properties was not sorted by the characteristics of tenants (such as 'asylum seeker' or 'ex-offender') there would be unlikely to be any unfairness to those tenants. The Commissioner therefore upheld the complaint.
Section of Act/EIR & Finding: FOI s.1 - Complaint upheld, s.40(2) - Complaint upheld.
Full transcript of Decision Notice FS50082890

Case Ref: FS50090699
Date: 20/04/06
Public Authority: Cabinet Office
Summary: The complainant requested information concerning submissions made to the Scott Inquiry. The Cabinet Office carried out a limited search of the relevant records and responded stating that the information requested could not be located, without stating that a full search has not been carried out or giving the reason for this. The response did not therefore constitute a valid refusal notice. After viewing the Scott Inquiry records, the Commissioner accepts that a search of the entire record would incur costs greater than the appropriate limit and so does not uphold the complaint that information was withheld without valid reason.
Section of Act/EIR & Finding: FOI s.1 - Complaint Not Upheld, FOI s.17 - Complaint Upheld
Full Transcript of Decision Notice FS50090699

Case Ref: FS50082472
Date: 19/04/06
Public Authority: Home Office
Summary: The complainant requested to know the names of individuals, companies and academic institutions in Scotland holding licences to conduct scientific procedures on animals. The Home Office refused to release the information on the grounds that disclosure would or would be likely to endanger the health and safety of individuals (section 38). It also considered that disclosure of the names of individuals holding licenses would breach the Data Protection Act 1998, and the information was therefore exempt under section 40 of the FOI Act. The Commissioner has decided that section 38 has been correctly applied and that the public interest in withholding the information outweighs that in disclosure. With regard to section 40, the Commissioner is satisfied that section 40 is engaged and that disclosure would be unfair, breaching the first data protection principle. The Commissioner does not therefore require any further action by the Home Office.
Section of Act/EIR & Finding: FOI s.38 - Compliant Not Upheld, s.40 - Complaint Not Upheld
Full Transcript of Decision Notice FS50082472

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