Slow progress on coalition's commitment to extend FOI

Although the coalition government is committed to extending the scope of the Freedom of Information Act, the process is turning out to be excruciatingly slow.

Before the 2010 election the Conservatives promised to extend the FOI Act to additional bodies "within weeks of the General Election". A consultation was announced by the Ministry of Justice on 7 January 2011, but two and a half years after the election, a decision on the outcome is still not close.

A recent parliamentary question by Stewart Jackson MP asked what progress had been made extending the Act to registered providers of social housing. The minister's answer revealed that consultation with these bodies is yet to even begin, despite Grant Shapps, the former housing minister, promising back in June 2011 they would be consulted later that year. It also confirmed that it could be spring 2015 before the extension of FOI to bodies with public functions is complete.

Last year, the MoJ disclosed further details about which bodies it is consulting about coverage following a FOI request by the Campaign. Someone else asked for the responses received by the MoJ from those bodies, but the MoJ refused that citing the exemption for information relating to the formulation or development of government policy. The Information Commissioner recently upheld the department's refusal to disclose the responses on the grounds that the policy process was still live at the time of the request. The Commissioner's decision cites the strong weight that should be attached to 'safe space' arguments and, to a lesser extent, the 'chilling effect', as the two reasons for his finding that the public interest favoured withholding the information, despite the fact that the disputed information involved third party information and not the advice of officials.

In contrast, the Ombudsman in New Zealand has just published a case note on a complaint where she found there was no good reason to withhold responses to a government consultation exercise which were still under active consideration under the Official Information Act (h/t Andrew Ecclestone):

Ombudsmen have rejected the argument that premature release of public submissions would impede the subsequent development and consideration of policy advice by officials and Ministers. Disclosure of submissions cannot pre-empt or prejudice the ability to consider later advice that may in part be based on the submissions. Officials remain free to advise Ministers (and Ministers to advise Cabinet) about the merit or lack of merit in particular submissions as they see fit, and to offer such additional advice as they deem appropriate. 

It's clear that section 5 is not the appropriate mechanism for resolving anomalies in the legislation's coverage, given the time it takes. Last year the Campaign worked with Lord Wills on an amendment to the Localism Act which would have brought the Housing Ombudsman under FOI, though the amendment was not accepted. From 1 April 2013, the Housing Ombudsman's jurisdiction will be extended to all social housing in England. The government is consulting the Ombudsman on FOI coverage and the Service's website says it "will follow the terms of the Act voluntarily whenever possible". But judging by the minister's answer it will be several years yet before requesters have a legally enforceable right to obtain information from it.

Commissioner orders extracts from note of Blair/Bush telephone discussion to be disclosed

The Information Commissioner has ordered the Foreign and Commonwealth Office to disclose extracts from a note of a telephone conversation between Tony Blair and George Bush on 12 March 2003, shortly before the decision to go to war against Iraq (Decision Notice FS50341647). The Commissioner found that the exemptions for international relations (sections 27(1)(a) and 27(2)) and ministerial communications (s.35(1)(b)) applied to the information. In respect of information supplied by President Bush to Prime Minister Blair, he found the public interest in withholding the information outweighed the public interest in disclosure. However, for information that wasn't obtained from the US, which concerned the Iraq issue only from the UK perspective, the public interest favoured disclosure.

83. After careful consideration, and in circumstances where the respective public interest considerations are very finely balanced, the Commissioner is of the view that the public interest in maintaining the section 27 exemption to protect the confidentiality of the information provided by the US (in the form of information provided to Mr Blair by President Bush), outweighs, by a significant, but by no means overwhelming margin, the public interest arguments in favour of disclosure of this information, persuasive and weighty though they are.

84. The Commissioner emphasises that his decision with regard to the information contained in the document consisting of information obtained from a State (US) other than the United Kingdom, has been made because the Commissioner believes that the short-term and specific public interest benefits of releasing this particular information (important though they are) would be outweighed by the risk posed to the long-term integrity and maintenance of the relationship between the UK and the US, particularly that between Prime Minister and President.

85. However, the strength of the public interest attached to this specific information is such that the Commissioner considers that the public interest balance (assessed under either section 27 or section 35(1)(b) must be determined differently with regard to the information contained in the document which is not information obtained from the US (i.e. information which does not disclose the confidences given by President Bush, or reveal, directly or otherwise, the confidential information provided to the UK in the telephone discussion.) Once that information (the majority of the information contained in the document) is protected via appropriate redactions, the public interest arguments for disclosure of the remaining information at least equalise (and in the Commissioner’s view appreciably exceed) the public interest arguments in favour of maintaining the section 27 or section 35(1)(b) exemptions.

86. The Commissioner considers that such was the gravity and controversy of the decision by Prime Minister Blair to commit the country to the military action taken in Iraq, then any information which might provide the public with an insight or awareness of the Prime Minister’s thinking during the critical period when the decision was finalised, and its implications for the UK carries with it a powerful and compelling public interest in disclosure. It is for this reason that the Commissioner has decided to order partial disclosure of the information in this case, such disclosure being limited to select extracts of the information which concern the Iraq issue only from the UK perspective, and which do not reveal any confidences or information given by the US, nor prejudice UK relations with either the US, the UN or any other countries.

The original request for information in this case was for records of governmental discussions which took place between the UK, France and the US following the television interview of President Chirac on 10 March 2003. The FCO initially withheld all of the requested information, but disclosed 5 of the 6 documents, including a note of a discussion between Prime Minister Blair and President Chirac, during the course of the Commissioner's investigation, accepting that the balance of public interest had shifted in favour of disclosure following evidence heard by the Iraq Inquiry. The disclosed documents were placed in the public domain on the Iraq Inquiry website.

Commissioner orders partial disclosure of previously vetoed minutes

The Information Commissioner has again considered whether minutes of meetings of the cabinet sub-committee on devolution from 1997/8 should be disclosed under the Freedom of Information Act. These minutes were the subject of an earlier FOI request made in 2005. The Commissioner had ordered them to be disclosed (Decision Notice FS50100665). The Cabinet Office appealed this decision to the Tribunal, but prior to the Tribunal hearing, the then Secretary of State for Justice, Jack Straw, issued a veto under section 53 of the Act, overruling the Commissioner's decision (see earlier post). This was, and remains, only the second time the veto has been used.

At the time, Jack Straw identified a number of factual disagreements with the Information Commissioner. The Commissioner had found that only 1 member of the Cabinet committee was still in government at the time of the request. Mr Straw said in fact 15 of those who attended committee meetings were still ministers when the request was made. He also disagreed with the Commissioner's view that the policy issues discussed in 1997 were no longer live and that papers provided little insight into ministers' views. The Commissioner published a response to the use of the veto, which suggested that had the Tribunal been given the opportunity to hear the case, it may have found that the government was entitled to withhold some of the information.

In his decision on the new request, the Commissioner states that he "does not rely to any extent on the continued involvement or otherwise of the participants in the Devolution Committee in politics", but he "has recognised the validity and weight of the argument against disclosure on the grounds of preserving the convention of collective Cabinet responsibility".

His conclusion is that this factor [preserving the convention of collective Cabinet responsibility] tips the balance in favour of maintenance of the exemptions in relation to some of the information, specifically content that identifies individual Ministers and other content that in the Commissioner’s view covers what could be fairly characterised as the more sensitive areas of policy discussed by the Devolution Committee. In relation to the content identifying individual Ministers and the content recording discussions on sensitive issues, the view of the Commissioner is that the factor relating to collective Cabinet responsibility continues to carry significant weight. The Commissioner would stress that his decision in relation to information identifying Ministers means that only the content specifically identifying any Minister should be redacted...

In relation to the remainder of the content, the Commissioner considers that its disclosure would not be likely to result in harm to the convention of collective Cabinet responsibility, particularly given the passage of time. The Commissioner considers there to be a specific public interest in disclosure in order to inform current and future debate about devolution and a general public interest in the transparency and openness in decision-making.

The latest decision also upholds the use of the exemption for legal professional privilege in relation to legal advice provided to the devolution committee or to the government itself.

The decision to again disclosure of some of the minutes will be a test for the coalition government and its commitment to transparency. In response to the previous government's veto of the minutes, the Liberal Democrats' then justice spokesman, David Howarth MP, was reported to have said:

This completely undermines Labour's claims to be committed to open government...the veto is clearly a threat to freedom of information and should be abolished.

The Ministry of Justice recently published a revised policy on use of the veto in relation to information falling within the scope of section 35(1). This states:

The Government recognises that the public interest against the disclosure of much material covered by collective responsibility will often be strong, but that the scheme of the Act does not make protection absolute. Accordingly, the drafting of the section 35 exemption reflects Parliament’s intention that in some circumstances, the public interest in relation to information covered by it may fall in favour of release. So in particular cases the public interest in favour of the disclosure of material covered by collective responsibility may prevail.

It then goes on to outline a number of guiding principles, criteria for determining what constitutes an exceptional case and factors to be taken into account when considering whether to exercise the veto.

Royal Family and FOI - the state of play

The Daily Mail has reported that there is a dispute within the coalition government over the extent to which the Royal Family are subject to the Freedom of Information Act:

The Queen is at the centre of a Government row over proposed moves that would give the public sweeping rights to demand secret information.

The Liberal Democrats have been incensed by Conservatives’ attempts to restrict a new ‘right to data’ law so that it excludes the Royal Family.

The new open access law, which was secured by the Lib Dems as part of the Coalition agreement, would extend the freedom of information rules, which have unearthed scandals such as last year’s furore over MPs’ expenses.

But after lobbying from Buckingham Palace – which is worried that it would lead to a rash of fresh revelations – the Justice Ministry has proposed a blanket ban on the release of details about the Royals.

At present, the Royal Family itself is not covered by the FOI Act. Where government departments and other public authorities hold communications with Royal Family, that information is subject to the Act and potentially disclosable.

Section 37(1)(a) of the Act provides an exemption for communications with Her Majesty, other members of the Royal Family or with the Royal Household, but the exemption is currently a qualified one subject to the Act's public interest test.

The Information Commissioner has issued a series of decisions involving requests for correspondence or lists of correspondence with the Prince of Wales.  In each case to date, the Commissioner has supported the government department’s decision not to release the information, finding that the balance of public interest favoured confidentiality (see, for example, Department for Business Innovation and Skills FS50080233) These decisions were based not only on the Royal Family exemption (s.37(1)(a)) but also on the exemptions for personal data (s 40) and breach of confidence (s 41).

However, the Commissioner has ordered information about the cost of maintaining the Royal palaces to be disclosed on public interest grounds (see FS50154684). The Department for Culture, Media and Sport appealed this decision to the Information Tribunal, though it has now disclosed the information.  

The Constitutional Reform and Governance Act 2010, which received Royal Assent on 8 April 2010, amended Section 37 of the FOI Act to create a new absolute exemption for communications with the monarch, heir to the throne and second in line. The effect of the amendments will be:

• to exempt information relating to communications with the monarch, the heir to the throne and the second in line to the throne (i) till 5 years after the individual’s death, or (ii) for 20 years, whichever is later.

• that this exemption would no longer be subject to the Act’s public interest test, so there would be no possibility of disclosure on public interest grounds during the specified time limit.

• that communications with other members of the Royal Family would also be protected until 5 years after the individual’s death or for 20 years, but in these cases the public interest test would still apply.

These amendments, together with those to reduce the 30 year rule to 20 years, also contained in the Constitutional Reform and Governance Act, require a statutory instrument to be brought into effect. The Daily Mail report suggests the government are now considering whether to implement the changes. Implementing the changes to the exemption for Royal communications would, however, breach the coalition government's commitment to extending the scope of the FOI Act (see earlier post here).

Meanwhile, a Guardian appeal to the Tribunal against a decision by the Commissioner upholding the withholding of Prince Charles' letters to ministers was adjourned until the new year for reasons the Tribunal panel could "not go into". And the Commissioner recently referred to the unimplemented changes to Section 37 in a decision where he upheld the Ministry of Justice's refusal to release representations made by the Queen or Royal Household regarding the FOI Act itself:

These changes will, when brought into force, result in communications with the Sovereign, the Heir to the Throne and the second in line to the Throne becoming absolutely exempt from disclosure under the Act....

In the circumstances of this case the Commissioner recognises that there is significant interest in, and debate surrounding, the proposed changes to the Act, which are likely to have a direct bearing on the future release of communications with the Royal Family and the Royal Household.

Interestingly, the MoJ did confirm that it held information relevant to the request. However, the Commissioner found the balance of public interest favoured withholding the information:

The Commissioner accepts that the information consists of communications which fall within the heart of government, being correspondence from or on behalf of The Queen to the public authority. Accordingly, he again concludes that it would not be in the public interest for the operation of the established convention of confidentiality to be undermined. Furthermore, he accepts that disclosure of the information covered could undermine The Queens’ political neutrality and, as noted above, he accepts that it is inherent in the exemption contained at section 37(1)(a) that it is in the public interest for the political neutrality of all members of the Royal Family to be preserved. However, the Commissioner would like to clarify here that he is not suggesting that this exemption is, effectively, ‘absolute’ and that there may be cases where the public interest balance would be different if there was an equally weighty public interest in disclosure.

The effect of the recent amendments of course would be to prevent such disclosure on public interest grounds taking place.

See also:
Explanatory Notes to the Constitutional Reform and Governance Act here.

Church of Scientology rates relief information disclosed

The City of London has disclosed information relating to the decision to grant the Church of Scientology Religious Education College (COSREC) mandatory relief from business rates for its premises at 146 Queen Victoria Street in London. The disclosure follows a ruling from the Information Commissioner (FS50265544) that minutes of a meeting between the CoL and COSREC in August 2006 should be disclosed.  The CoL had sought to withhold the minutes under sections 31(1)(d), 41(1) and 40(2) of the FOI Act.

The Commissioner’s decision notice states:

The Commissioner considers that there is a significant legitimate public interest in obtaining information about the process that led to COSREC being granted mandatory rate relief to enable the public to better understand how this organisation qualified for this form of tax relief. Particularly as the COSREC is controversial, there is significant public concern about the relief being awarded to this organisation, the amounts involved are substantial and the cost of mandatory rate relief is met by the public purse.

The documents made available by the CoL also include:

A legal opinion by Jonathan Crow QC from October 2008, correspondence with the Department for Communities and Local Government and a report considered by the Finance Committee at a meeting on 27 September 2010, where it was resolved to maintain the grant of mandatory relief.

The minutes were requested by William Thackeray.

Commissioner wrong to conclude that police investigation report entirely the requester's personal data

In a significant decision on the application of section 40, the First-tier Tribunal (Information Rights) has ruled that the Information Commissioner was wrong to conclude that Cambridgeshire Constabulary could withhold the whole of an investigating officer's report on the grounds that it consisted entirely of the requester's own personal data. The report in this case had been produced after the requester and two other individuals raised concerns about the way the force had investigated the death of the requester's sister, who had been killed by her husband. It addressed the adequacy of the criminal investigation as well as the way in which the force had dealt with the requester and the other complainants. The Tribunal held that the report should be disclosed except for some information about the offender and information about the offender's family, the deceased's family and other witnesses.

The Commissioner's decision notice (FS50138960) stated that the entire report comprised the requester's personal data because it was compiled in response to her complaint. The Commissioner retreated from this position during the appeal to the Tribunal, but maintained that the information that was not her own personal data was the personal data of third parties which was exempt under s.40(2).

Applying the Court of Appeal's judgment in Durant v Financial Services Authority, the Tribunal found that not all the information in the report comprised personal data:

...it is clear that not all the information in the Report comprises personal data. For example, we consider that there is nothing in the Introduction, and very little in the Glossary of Terms and Abbreviations, or in the Executive Summary and other general background material that comprises personal data of either the Appellant or third parties. Most of that information does not identify any living individual, much less does it contain any information which could be said to be personal or biographical of any person. In the absence of any other exemption being engaged, such information must therefore be disclosed. 

In relation those parts of the report that did contain personal data, the Tribunal went on to consider whether disclosure would breach the data protection principles. In considering whether disclosure would be fair for the purposes of the first data protection principle, it commented:

We accept  that fairness is in fact a broad concept, capable of embracing a range of considerations.  In particular, we accept that fairness should not be considered from the point of view of the data subject alone. It is necessary to also consider the interests of the data user (here, the Appellant), and also, where relevant, the wider considerations of accountability and implicit in FOIA. 

It then considered the position of each individual or group of people in turn.

Police officers

When considering the information that related to individual police officers the Tribunal was referred to its decision in Waugh v Information Commissioner and Doncaster College, which concerned information relating to the dismissal of the Principal of Doncaster College and where the Tribunal said there is a “recognised expectation that the internal disciplinary matter of an individual will be private”.  But it concluded the present case was different for the following reasons:

First, the focus of the Report is about the way in which the Public Authority carried out the inquiry rather than being about any particular officer. While the Report does consider certain complaints against individual officers, the information about disciplinary consequences is limited to a brief mention that management advice is recommended. We also note that the Public Authority’s letter to the Appellant and her husband dated 5 June 2003 (referred to in paragraph 27 above), contains essentially the same information. In particular, it sets out the names of individual officers against whom disciplinary action (by way of management advice), had been taken. In addition, the redacted Report as disclosed to the Appellant in response to her subject access request, also contains names of certain officers, identifies complaints against them and sets out the Report’s findings and recommendations. Although these disclosures were made to the Appellant and not to the world at large, as already noted, they were not made in confidence, and it is clear that they have not been treated in confidence. Indeed it would be surprising if they had been since one of the Appellant’s stated objectives has been to bring about changes in the way investigations are carried out and how families of the victim are treated. In these circumstances, we consider that disclosure would be fair.

We do, however, consider that in relation to certain parts of the Report which records opinions expressed by officers in what appear to be an “off the cuff” manner, there would likely have been a reasonable expectation that they would not be disclosed. We consider that disclosure of such information would not be fair. 

For the most part, however, for the reasons set out above, we find that disclosure of the information is fair.

The Tribunal was also satisfied that condition 6 of Schedule 2 was met for the information about the police offcers:

There is also a wider public interest in transparency and accountability in relation to the investigation of serious offences and in ensuring that mistakes made are identified and not repeated. Against these interests, are the interests of the police officers in the privacy of their personal data. The protection afforded by condition 6 is in relation to unwarranted disclosure. The factors set out above which point to the fairness of the disclosure, in our view, also support a finding that on the facts of this case, any prejudice to the rights and freedoms or legitimate interests of the police officers is not unwarranted.

Offender

In relation to the information about the offender, the Tribunal concluded that although some of the information was his sensitive personal data, some of it should nevertheless be disclosed:

We consider that the objective of transparency and accountability of the Public Authority’s handling of the investigation can only properly be achieved through the disclosure of the Report so we find that disclosure is necessary for the legitimate interest of the Appellant and wider public. In our view, disclosure cannot be said to be unwarranted by reason of prejudice to the rights and freedoms of the Offender, where the information is already in the public domain and has been put there by the Offender himself. For the same reason, we consider that in relation to information that is sensitive personal data, condition 5 is met (information that has been made public as a result of steps deliberately taken by the data subject).

We do not, however, consider that disclosure of the personal data of the Offender, as contained in the Report, would be fair in all cases. In particular, we do not consider that detailed matters concerning the Offender’s past employment or allegations of other offences with which the Offender was either not charged, or which were not pursued against him, can be said to be fair. These are not matters that relate directly to the purpose of the Report, or to the Appellant’s or public’s interests identified above. That information, therefore, is exempt.

However, the Tribunal concluded that there was a strong and legitimate interest in the personal data relating to members of the offender's family and the daughter of the offender and deceased being kept private.

See Bryce v IC & Cambridgeshire Constabulary EA/2009/0083

Kent Messenger Group wins battle to release details of proposed lorry park sites

Exclusive report by political editor Paul Francis

Kent County Council has been told it must reveal details of all the locations it has considered as possible lorry park sites to deal with Operation Stack.

The KM Group has won an 18-month long battle to force the authority to disclose details of the other sites and how much each option might cost.

An information watchdog has ruled that the council was wrong to withhold the information and has ordered it must be disclosed because of the "considerable environmental impact" and the affect on people living in the area.

KentOnline had sought details of other sites under the Freedom of Act and Environmental Information Regulations.

But KCC said it was not in the public interest to release details of alternative sites, maintaining it was commercially sensitive and disclosure could affect land values.

It also argued the release would create anxiety and uncertainty among those living near the other locations.

In a ruling that comprehensively overturns KCC's case and upholds our appeal, the Information Commissioner's Office (ICO) says a list of alternative sites must now be released in the public interest.

The ruling will also mean that information about the possible planning constraints around the M20 site, originally redacted from documents already provided to the KM Group, will be released.

...

The ruling has been welcomed by residents and campaigners opposed to the lorry park plan for some 3,000 vehicles but is a setback for the council.

As recently as December, KCC leader Paul Carter told Folkestone and Hythe MP Michael Howard he would not publish the details of the other locations.

Full story here.
ICO Decision Notice FER219834 Kent County Council here.

ICO: physical restraint methods used against children should be made public

Press release
7 Jan 2010

The Information Commissioner's Office (ICO) has decided that it is in the public interest to disclose details about the methods used to restrain children and young people in secure training centres. The restraint methods include so-called distraction techniques which can involve deliberately inflicting pain on children.

Given the level of debate and controversy surrounding the use of physical restraint, on both legal and ethical grounds, and the evidence that these techniques can result in physical harm, the Assistant Information Commissioner, Gerrard Tracey, decided there is a significant public interest in releasing the manual in full.

Full ICO press release.
ICO decision notice FS50173181 Youth Justice Board for England and Wales

See also 'Release of secret child punishment manual ordered', The Guardian 10/1/2010

Queen's finances to be revealed

The Independent
21 Dec 2009

Secret correspondence between the Government and Buckingham Palace concerning the growing public cost of the Royal Family is to be released to The Independent after three years of campaigning.

In a far-reaching ruling, the Government must disclose more than 100 letters and memos written by ministers and members of the Royal Household during negotiations over public subsidies paid to the Queen for the upkeep of her palaces.

The Information Commissioner's decision deals a severe blow to the Royal Family's efforts to ensure correspondence between the Palace and the Government is not caught by the public's right-to-know law. Royal aides warned ministers that they did not want the letters disclosed to The Independent.

Secret correspondence between the Government and Buckingham Palace concerning the growing public cost of the Royal Family is to be released to The Independent after three years of campaigning.

In a far-reaching ruling, the Government must disclose more than 100 letters and memos written by ministers and members of the Royal Household during negotiations over public subsidies paid to the Queen for the upkeep of her palaces.

The Information Commissioner's decision deals a severe blow to the Royal Family's efforts to ensure correspondence between the Palace and the Government is not caught by the public's right-to-know law. Royal aides warned ministers that they did not want the letters disclosed to The Independent.

Full article here.
Information Commissioner's decision here.

Releasing ministerial letter on NHS contract will not limit free and frank discussions

ICO press release
17 September 2009

The Information Commissioner has ordered the Department of Health to release a letter from a former Treasury minister concerning the NHS consultant contract. The Department of Health received a request under the Freedom of Information Act for the business case on the consultants’ contract which it provided to HM Treasury in 2002. The requester also asked for a copy of HM Treasury’s response.

...

The Information Commissioner agrees that the exemption applies. Nonetheless, the letter from a Treasury minister, which contains the response to the business case, must be released on public interest grounds. The Information Commissioner is not persuaded by the view that disclosure would affect the frankness and candour with which ministers would debate policy issues in the future. The Decision Notice also highlights that this contract is no longer a ‘live’ issue, but that there has been significant public interest in whether the contract has delivered value for money.

Full ICO press release here.

Essex Police criticised for lack of engagement with ICO investigation

Essex Police have been strongly criticised by the Information Commissioner over their handling of a request and lack of engagement with the Commissioner's Office during its investigation of the case:

"During the course of his investigation, the Commissioner has met with resistance in his attempts to understand the public authority's reasons for invoking section 12 [the cost limit]. The public authority has appeared unwilling or unable to provide the details requested or to meet the timescales for response set out in the Commissioner's letters. The Commissioner does not consider the public authority's approach in this case to be particularly co-operative, or within the spirit of the Act. As such he will be monitoring the public authority's future engagement with his office and would hope to see improvements in this regard."

The force was also criticised for destroying requested information before the appeal process had been fully exhausted - the notice states it "may have been destroyed after the public authority became aware of the Commissioner's investigation" - for taking five months to complete an internal review and for failing to provide the requester with adequate advice and assistance.

See Decision Notice FS50143930

SIC orders release of PFI prison contract financial model

BBC News
10 September 2009

Scotland's Information Commissioner has ordered the release of key financial data from a £50m PFI contract for Kilmarnock jail.

The Scottish Prison Service (SPS) and the private jail's operator had resisted giving the information to the union Unison.

They argued it would substantially prejudice the contractor's commercial interests.

Unison said it was "a major victory for the public's right to know".

The prison is operated by Serco on behalf of the Scottish Prison Service.

The SPS said it was "currently considering its response".

Information Commissioner Kevin Dunion said the significance of the financial model data had diminished substantially since the 25-year contract was signed in November 1997.

Unison's Scottish organiser Dave Watson said the union had long argued there was too much secrecy around PFI and Public Private Partnership (PPP) contracts.

"Too often the public is denied information about the costs of hospital, school and prison contracts on the grounds of commercial prejudice or commercial confidentiality," he said.

"This decision is extremely important and should help pave the way for greater access to information about all PFI/PPP contracts."

http://news.bbc.co.uk/1/hi/scotland/glasgow_and_west/8247114.stm

SIC Decision 104/2009 UNISON Scotland and the Scottish Prison Service here.

ICO rules on FOI complaint into the alleged abuse of the honours system

ICO press release
4 June 2009

The Information Commissioner’s Office (ICO) has ordered the Metropolitan Police Service (MPS) to release some of the information from a senior investigating officer’s report relating to an investigation into alleged abuse of the honours system in 1997. The ICO has ordered that the information should be disclosed under the Freedom of Information Act.

The ICO accepted that disclosing the report in full, including the names of witnesses, may restrict the flow of information to the force which could prejudice future investigations. However, as the investigation into the alleged abuse of the honours system was closed in 1999, the ICO considered that disclosure of paragraphs 15-21 of the police report would not cause disruption. In addition, the MPS provided no evidence that the investigation would be re-opened.

Read the full decision notice -
FS50153447 Commissioner of the Metropolitan Police Service

Department of Health must improve its management of records

ICO press release
9 March 2009

The Information Commissioner’s Office (ICO) has issued a formal practice recommendation to the Department of Health regarding its record management practice. This follows a request by the ICO, and with the agreement of the Department, for the National Archives (TNA) to conduct an assessment of records management practice at the authority.
...
The assessment found that there are good central policies and guidance in place. However, much of the responsibility for day-to-day management of records has been devolved to local staff, leading to the development of local practices, some of which lack consistency across the Department. The recommendation concludes that senior managers must do more to ensure that good behaviours and practices are reinforced, especially in the face of organisational changes.
...
This is the second practice recommendation the ICO has issued to the Department of Health for failing to meet its requirements under the Freedom of Information Act. In April 2008 the Department was served a practice recommendation in relation to its handling of FOI requests.

The Information Commissioner recognises that the Department is already working to improve its records management practices and welcomes this approach. The ICO will continue to monitor the Department’s request handling and records management functions and with the support of TNA, will be assessing its progress against the recommendations.

View the practice recommendation.
view a copy of the National Archives assessment report.

Diana correspondence is personal and must not be disclosed

ICO press release
18 Feb 2009

The Information Commissioner’s Office (ICO) has ruled that correspondence between Diana, Princess of Wales, and the government should not be released under the Freedom of Information Act.

Under the Act communications with the Royal Family are exempt from disclosure, however this exemption is subject to the public interest test.

The ICO has upheld a decision by the Cabinet Office on the basis that the correspondence is of a personal nature and does not comment on government or public policy. The ICO’s ruling notes that ‘disclosure of information relating to communications with the Royal Family is likely to be strongest in cases where the information relates to the performance of a public role or function, as opposed to private or personal matters.’ Deputy Information Commissioner, Graham Smith, highlights that ‘it is important to draw a clear distinction between matters of public interest and matters about which the public may be merely curious.’

In the ruling the Deputy Information Commissioner also highlights that members of the Royal Family, some of whom are referenced in the correspondence, enjoy the same data protection rights as other individuals.

The full decision notice can be viewed at
http://www.ico.gov.uk/upload/documents/decisionnotices/2009/fs_50142320.pdf
ENDS

Dept of Health ordered to release information on MMR policy

ICO press release
12 January 2009

The Information Commissioner’s Office (ICO) has made three related rulings under the Freedom of information Act involving the Department of Health. Copies of three committees’ minutes*, which cover the period in which the joint MMR vaccine was introduced (1988), should be released by the Department. The Department initially provided redacted copies of the minutes citing a large number of exemptions** to withhold the requested material.

The ICO maintains that disclosing the information will help increase the public understanding of the development of the Government’s policy on this issue. The Information Commissioner, Richard Thomas, believes that some of the controversy surrounding national immunisation policy has been fuelled by a perceived lack of transparency in the decision making process which fed into the policy and he believes that there is a public interest in countering this perception. Ultimately, knowing who said what and whose opinions were taken into account will facilitate greater openness, accountability and transparency.

Full press release
Decision notice FS50149373
Decision notice FS50149374
Decision notice FS50149375

ICO rules against VOSA over details of non-safety recalls

ICO rules against VOSA over details of non-safety recalls

ICO press release
12 November 2008

The details of 22 non-safety recalls recorded by the Vehicle & Operator Services Agency (VOSA) in 2006 must be made public following a ruling under the Freedom of Information Act. The Information Commissioner's Office has ordered VOSA to release the information as the details of non-safety recalls will not affect the commercial interests of manufacturers.
...

In her ruling, the Assistant Information Commissioner, Anne Jones, noted that manufacturers inform vehicle owners when there has been a non-safety recall as a way of preventing the issue developing into a safety related incident. As a result, the details of non-safety recalls were made available to thousands of owners and there is no evidence to suggest that vehicle owners are under a duty of confidentiality relating to this information.

The Assistant Information Commissioner also considered whether disclosing the infomation would be likely to prejudice the commercial interests of manufacturers. VOSA believed that releasing the information could undermine and damage the reputation of manufacturers and as a result could have a detrimental effect on their commercial revenue. The Assistant Information Commissioner disagreed with this argument, stating that VOSA could avoid misinterpretation of the information by providing an appropriate explanation of its context."

See
Press release
Decision notice FS50146033

ICO rules on Ofsted inspectors' notes

ICO rules on Ofsted inspectors' notes

ICO press release
9 October 2008

The Information Commissioner’s Office (ICO) has ordered Ofsted to release a redacted version of the handwritten evidence forms completed during an inspection of St Patrick’s Primary School in Bristol. In the ICO’s view, releasing the information under the Freedom of Information Act would add to public knowledge and understanding about the performance of the school and the outcome of the inspection. The ICO also found that a substantial amount of the information in the forms was personal data relating to teachers, pupils, non teaching staff and a staff member from another school and should be withheld.
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Assistant Information Commissioner, Steve Wood, ruled that as the school is publicly funded and accountable, disclosure of some of the information from the evidence forms is in the public interest. The ICO does not consider that the school inspection process would be significantly prejudiced by the disclosure and rejected Ofsted’s argument that the school would be less willing to cooperate fully in future inspections, even if negative comments were made public. The ruling also finds that any inhibition that an interviewee would feel as a result of disclosure could be reduced through the awareness that their comments will not be directly attributable to them.

Full press release.

ICO orders 32 local authorities to release information on pension payments

ICO press release
Date: 28 Feb 2008

In a landmark ruling under the Freedom of Information Act, the Information Commissioner has ordered 32 local authorities to disclose the amount of money paid to brokers by investment managers on behalf of employees’ pension funds. The Information Commissioner, Richard Thomas, has ruled that there is a strong public interest in releasing the information.

In one case, Tameside Metropolitan Borough Council received a FOI request for all IMA (Investment Managers Association) disclosure tables. The tables contain a breakdown of the commission payments made by investment managers on behalf of the Greater Manchester Pension Fund. These payments are directly deducted from the pension fund.

The council refused to disclose the information citing two exemptions, confidentiality agreements and commercial sensitivity. However, the Information Commissioner decided that the public interest in disclosing the information overrides the public interest in maintaining the exemptions.

See also:

Information watchdog targets private sector - Financial Times, 28 Feb 2008

Read the decision notice

ICO orders release of Cabinet minutes relating to Iraq invasion

ICO Press Release
Tuesday 26 February 2008

The Information Commissioner, Richard Thomas, has ordered the Cabinet Office to release the minutes of Cabinet meetings where military action against Iraq was discussed. He does not believe, however, that the disclosure of these minutes will necessarily set a precedent in respect of other Cabinet minutes.

The Commissioner’s decision follows a request under the Freedom of Information Act for a copy of Cabinet minutes and records relating to two meetings held between 7 – 17 March 2003 where the Attorney General’s legal advice was considered.

The Cabinet Office refused to release the information, stating that it is exempt from disclosure because it relates to the formulation of government policy and ministerial communications.

The Information Commissioner fully recognises the Cabinet Office’s arguments against disclosure of the information in relation to the importance of the Cabinet’s ability to freely consider the most important and sensitive policy issues without inhibition. He also accepts that protecting the convention of Cabinet collective responsibility is a strong factor in favour of withholding of Cabinet minutes.

However, in the Information Commissioner’s view the public interest in disclosing the Cabinet minutes in this particular case outweighs the public interest in withholding the information. He believes that disclosure of the information would allow the public to more fully understand this particular decision of the Cabinet and considers several public interest factors to favour the disclosure of this information:

• The gravity and controversial nature of the subject matter
• Accountability of government decisions
• Transparency of decision making
• Public participation in government decisions
However, the Information Commissioner accepts the Cabinet Office’s argument that there are a number of specific references in the Cabinet minutes which, if released, would be likely to have a detrimental effect on international relations. He therefore concludes that in respect of these references the public interest in maintaining the exemptions does outweigh the public interest in disclosure.

ENDS

The Campaign for Freedom of Information has welcomed the Commissioner's decision.

Read the decision notice (Pdf)