Friday, September 08, 2006

Latest Information Tribunal Decisions

The latest tribunal decisions are below - the BBC decisions confirm the previous media stories that the Balen report could be subject to FOI as it was "held for purposes other than those of journalism, art or literature", the BBC is unusual in that it is listed as public body (Part VI Sechdule 1) in a restricted way to protect press freedom and its position in a commercial market where other comptetitors are not subject to the same. The decision illustrates that the tribunal and subsequent ICO decisions will look at the boundaries in detail and interpretation of the journalism aspect will be tightly drawn. It is also interesting as the decision covers the interaction with the Human Rights Act and the right to freedom of expression.

Another small point - it appears from the tribunal information that the applicant used an assumed name rather his real name to apply. This issue has often been debated by practitioners - how should requests under assumed names be dealt with? the FOIA does state under S8 1(b) that the requests should state the applicants' name. In balance though because the Act does not prescribe that identities should be checked an assumption must be made that all requests should be handled with the presumption of information going into the public domain in general and there would only be the possibility to reject a request if there was clear evidence to suggest that this was not the applicants real name. (guidance under the Scottish Act by the SICO does address this issue explictly, the DCA guidance less so.)

The issues of the BBC's coverage by FOIA also again raises the question of the whether the Press Complaints Commission should be added to the coverage of the FOIA.

The Melton decision is also worth reading for the discussion of what constitues as information as "held" by a public authority in relation to a subscribed database service.


Mr G Marlow v Information Commissioner (31 August 2006) (PDF 80KB) (Melton Borough Council - subsitute decision notice issued

Mr S Sugar v Information Commissioner – Decision on Derogation (29 August2006) (PDF 369KB) (BBC)
"At this preliminary hearing the Tribunal finds that at the time of the request made by Mr Sugar to the BBC for a copy of the Balen Report it was held for purposes other than those of journalism, art or literature. The Tribunal substitutes a partial decision notice to this effect and requires the parties, within 20 days of the date of this decision, to provide written submissions as to how they consider the Tribunal should now best dispose of the appeal."

Mr S Sugar v Information Commissioner – Decision on Jurisdiction (29 August 2006)
(PDF 369KB)(BBC)
"The Tribunal finds that it has jurisdiction to hear this appeal."

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