Monday, October 26, 2009

Tribunal criticises ICO delays again

The Information Tribunal has again criticised the Information Commissioner's Office for delay in investigating a Freedom of Information complaint. In Export Credits Guarantee Department v IC (EA/2009/0021), the Tribunal said:
Other matters

119. While not a matter that has any bearing on the issues we have to decide, we think it appropriate to comment on the inordinate delay by the Commissioner in this case. As detailed above, although the Commissioner informed ECGD of the complaint by letter dated 22 August 2006, and although FOE requested an update on 5 December 2006, it appears that no case officer was allocated to this complaint until May 2008. It then took a further nine months for the investigation to be concluded as the Decision Notice was not issued until 23 February 2009. There is a suggestion that the Commissioner was delaying commencing an investigation into this complaint pending the outcome of other cases involving KSA before this Tribunal.

120. However, in the Decision Notice, the Commissioner refers to this delay; “Regrettably, due to the heavy workload at the Commissioner’s office, the investigation into the complaint did not get underway until Spring 2008.” It is clear, therefore, that the delay was not pursuant to any policy to wait for the decision in another case but rather that no steps were taken to fulfil the Commissioner’s statutory duty under section 50 of FOIA until approximately 20 months had elapsed since the complaint was made.

121. Concerns have been raised by differently constituted Panels of this Tribunal that such inordinate delays seriously undermine the operation of FOIA. While we are not in a position to identify the cause, or causes, of the delay in this case, we consider that it was excessive and cannot properly be justified by the Commissioner. The delay has meant that this Appeal was not heard until four years after the request for information was made and CAAT has still not received the information that we consider it is entitled to. There do not appear to be any effective methods by which CAAT, or any other Requestor, could challenge the delay by the Commissioner and force him to act in a timely manner. This completely and unacceptably undermines the spirit of FOIA and the general right of public access to information held by public authorities.
The Tribunal dismissed the ECGD's appeal which involved a request by the Campaign Against Arms Trade for a copy of the ECGD Underwriting Committee's assessment of the Al Yamamah deal with Saudi Arabia.

The ICO ruled that the ECGD was correct to withhold some of the information under s.27 (international relations) and s.43 (commercial interests), but that although the exemption in s.36 was engaged, the public interest in maintaining the exemption did not outweigh the public interest in disclosure of the information. The ECGD appealed the ICO's decision on s.36.

The Tribunal concluded that the ICO was right to decide that the public interest in maintaining the exemption did not outweigh the public interest in disclosure:
"107. It therefore is our conclusion that there is significant public interest when a government department underwrites an "arms deal" with public money, in understanding how that decision is made, in the process of how a public authority reaches decisions of importance, and in understanding how a public authority approaches a decision involving KSA, including a situation where the Serious Fraud Office was conducting an investigation."
Earlier post 'Information Tribunal criticises ICO delays' is here.

Sunday, October 25, 2009

Identity of person making a FOI request

There was a short debate in the House of Lords on 15 October 2009 on the subject of whether the names of people making FOI requests should be disclosed to those about whom information has been requested:
Lord Dubs: To ask Her Majesty’s Government whether they will consider amending the Freedom of Information Act 2000 to give those individuals about whom information has been requested the right to know the names of individuals or organisations who have made such requests.

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): My Lords, the Government have no plans to amend legislation in this way. Disclosure of the names of individuals or organisations making requests about other individuals would have to be considered on a case-by-case basis under the Data Protection Act, just as personal data falling within the scope of a Freedom of Information request would be. However, any individual who is the subject of an FoI request can make a subject access request, an SAR, under Section 7 of the Data Protection Act to find out the recipients of his or her personal data.

Lord Dubs: My Lords, I welcome my noble friend’s Answer. It is a lot better than I thought it could possibly be. As a supporter of the Freedom of Information Act, I ask my noble friend whether he is aware that many of us want it to work well but believe that it should work fairly. If investigative journalists are going to have a field day at our expense, maybe we should know who they are.
Lord Bach also referred to the issue of requesters using pseudonyms to make requests:
I remind the noble Lord that requesters, those who request, are required to give their name when making a request. That is a requirement of Section 8 of the Freedom of Information Act. If it is thought that a pseudonym is being used to shield his or her identity, it is possible to avoid the request by considering it vexatious.
However, this contradicts what the minister himself said during the FOI Bill's report stage in the House of Lords on 14 November 2000:
Lord Bach: My Lords, the Internet age has dawned. The Freedom of Information Bill makes provision for an application to be purpose blind. It requires that an applicant must apply in writing, which includes any electronic application, and provide an address. These are commonsense provisions which are necessary to ensure that a public authority can carry out its statutory duty to communicate information to that applicant. The Bill assumes that an applicant will wish to give his real name, but nothing requires him or her to do so or to use any particular name. He can call himself Father Christmas, or even Ralph Lucas, if he desires. In any event, the name is not relevant, as long as the information provided is sufficient to identify the applicant for the purpose of communicating information.

Wednesday, October 21, 2009

BBC4 Law in Action on the impact of the FoI Act

Supposed to create a new age of openness in government, the Act forced all public bodies to disclose information when requested. How has it been used over the last five years?
The programme will be repeated on Thurs 22 Oct at 20.00 pm or you can listen to it on iPlayer

Monday, October 12, 2009

FOI webcast 13 Oct 2009

Ibrahim Hasan is doing a free webcast on the latest developments in Freedom of Information Law on:

13th October 2009 at 10am for 30 minutes

You can listen, watch and ask questions via your computer. All you need is a broadband internet connection and some speakers or headphones to listen to the audio.

The slides are displayed on the screen and you can email your questions during the webcast as well as leave your feedback at the end. It's a fun and effective way to learn without leaving the comfort of your office.

You can subscribe for free to the Act Now Information and Surveillance Law Update Webcast series below:

Full more information see also:

Thursday, October 08, 2009

Court of Session rules no right to request copies of documents under FOI(S)A

The Court of Session has ruled that the FOI (Scotland) Act provides a right of access to information, not copies of actual documents. In doing so, the Court rejected the argument that a request for a copy of a document was a request for information to be supplied in a preferred form.

In this case the requesters, MacRoberts solicitors, had made clear they wanted copies of the actual notices rather than the information contained in them.

In allowing the two appeals brought by Glasgow and Dundee city councils, the Court also said the requests made by MacRoberts were not valid requests under the Act since they were made by an agent acting on behalf of an unidentified client. In situations where a request is made by an agent, the Court said the client was the true applicant, and in accordance with section 8(1)(b) should therefore be named.

A report in the Sunday Herald said the Scottish Information Commissioner was concerned by the ruling is considering whether to appeal to the Supreme Court.

The judges' decision states:
We can summarise our conclusions as follows:

1. The requests were invalid in that they were not requests for "information" within the meaning of the Act.

2. The requests were in addition invalid in that they did not disclose the name of the applicant, namely the second respondents.

3. The Commissioner erred in reaching his decisions on the basis that copies of statutory notices constituted "information" within the meaning of the Act.

4. The Commissioner erred in reaching his decision in the Glasgow case on the basis that a preference expressed by the applicant in terms of section 11 was relevant to the application of section 25.

5. We question whether, in any event, a request for copies of specified documents falls within the scope of section 11, but we do not require to express a concluded opinion on the point.

6. The Commissioner further erred, in relation to section 25, in failing to proceed on the basis that information which is made available in accordance with an authority's publication scheme, any payment required being specified in, or determined in accordance with, the scheme, is deemed to be reasonably obtainable.

7. The Commissioner further erred, in relation to section 25(1), in failing to take into
consideration the nature and characteristics of the applicant.

8. The Commissioner failed to comply with his duty to act fairly in reaching his decisions, in relation to section 33(1)(b), in both the Glasgow case and the Dundee case.

9. The Commissioner's decision in the Glasgow case was, in addition, irrational in that it dealt with the contentions in respect of section 12 and section 25 on inconsistent bases.

In these circumstances, both appeals must be allowed.
The full judgment is here.

Thursday, October 01, 2009

Right to inspect audit documents trumps commercial confidentiality

The High Court has issued an important decision on the right of electors under section 15(1) of the Audit Commission Act 1998 to inspect and make copies of certain documents relating to the council's accounts at the time of the annual audit.

Mr Dowen had applied to Nottinghamshire Council to inspect and take copies of documents relating to an £850m waste management contract between the Council and Veolia. The disputed documents comprised schedules to the contract and monthly invoices submitted to the Council by Veolia, which Veolia sought to prevent the Council from making available for inspection.

The issue before the Court was whether the documents fell within the category of "books, deeds, contracts, bills, vouchers and receipts" "relating to" "the accounts to be audited".

Veolia argued that a wide interpretation of s.15(1) would lead to confidential information being disclosed. However, Mr Justice Cranston stated:
The concern about commercial confidentiality I can well understand...But the plain fact is that there is no duty to keep commercial confidentiality in section 15...In my view the express provision for confidentiality in section 15(3) in the case of personal information suggests that commercial confidentiality is to be ignored in the interpretive exercise. The reality is that in recent times Parliament has addressed the issue of confidentiality in relation to section 15 and has not considered it necessary to extend it to commercial cases such as the present.
He concluded:
Accounts are not defined but the 1998 Act indicates that they are the record of the Council’s financial activity over a period and of the financial position at a particular time. The statement of accounts is a summary of the accounts. In my view it is plain that each of the disputed documents relate to the Council’s accounts as that phrase is to be construed in its statutory context. In the result Mr Dowen is entitled to inspect and copy these documents.
Mr Dowen was represented by Friends of the Earth. The FoE press release is here.
The judgement itself is here.

Information Commissioner & Tribunal Decisions courses

The Campaign for Freedom of Information is running two half-day training courses on 'Information Commissioner & Tribunal Decisions - what do they mean in practice?'

London 30 November 2009
Birmingham 3 December 2009

The courses, which are aimed at those with a good working knowledge of the legislation, highlight the key developments in the way the FOI Act's exemptions, public interest test and procedural requirements are being interpreted.

The courses will cover issues such as: "fair" and "unfair" disclosures of personal data; the FOI/EIR borderline; the commercial interests exemption & other exemptions; where the public interest line is being drawn; vexatious requests and the cost limit, advice & assistance and other administrative provisions.

Significant discounts available for more than one booking from the same organisation.

For further information: