Two recent decisions of the FTT on confidential information are of interest, one under FoIA, the other under the EIR, with a local authority being the public authority in both cases.

The FoIA case is Driver v Information Commissioner and Thanet District Council, EA/2017/0218.  It concerned the absolute Section 41 exemption from disclosure: information provided in confidence to the public authority by a third party.  The FTT held that the exemption did not apply because the information was not obtained by  the Council from another person. The information was the names of parties who had been paid compensation by the Council.  This was pursuant to settlements concluded between the Council and businesses involved in the export of live animals from the Port at Ramsgate.  The Council had imposed a ban. The High Court found that the ban was unlawful and that the Council was liable in damages. Continue reading

North of the border

The Scottish Government are consulting, until 7 March 2018, on a Draft Order, to commence on 1 April 2019, extending coverage of the Freedom of Information (Scotland) Act 2002 (“the Act”) to Registered Social Landlords, (“RSLs”) and their subsidiaries. The Act provides a statutory right of access to information held by Scottish public authorities. These range from the Scottish Parliament and Government to local authorities, NHS boards, higher and further education bodies, doctors and dental practitioners. The provisions of the Act can be extended to other bodies, including private bodies, that carry out functions of a public nature or which provide, under a contract with a Scottish public authority, a service which is a function of that authority. This can be done by making an Order under Section 5 of the Act, which designates those bodies as a Scottish public authority for the purposes of the legislation. They are then subject to the full requirements of the Act, as well as becoming automatically subject to the Environmental Information (Scotland) Regulations 2004. Continue reading

Medical privacy

Do clinicians treating a patient with Huntington’s Disease have a duty to disclose the diagnosis to the patient’s daughters? Arguably so, says the Court of Appeal in ABC v St George’s Healthcare NHS Foundation Trust (2017) EWCA Civ 336.

Huntington’s Disease is inherited. The child of a parent with the disease has a 50 per cent chance of developing the condition.

In the ABC case the Claimant’s father was diagnosed with the condition.  He told his brother.  He did not inform the Claimant or either of her sisters. Continue reading

Extension of coverage of FoIA

The Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2016, S.I. 2016/139, extends, in Scotland, the coverage of freedom of information legislation. It does so in two ways. First, it designates certain bodies as public authorities for this purpose.  These are (i) grant-aided schools, (ii) independent special schools, (iii) providers of secure accommodation, and (iv) Scottish Health Innovations Ltd, an organisation that exists to facilitate the commercialisation of intellectual property arising from the staff of NHS Scotland. Second, the Order designates persons who provide, under a contract with Scottish Ministers, services relating to the provision and running of prisons.

James Goudie QC

Investigatory powers and privacy

The Government’s draft Investigatory Powers Bill has been criticized by Parliament’s Intelligence and Security Committee, chaired by former Attorney General, Dominic Grieve QC MP, in a Report published today.  The Committee is “disappointed to note” that the Bill does not cover all the intelligence and security Agencies’ intrusive capabilities, and that the draft Bill fails to provide a clear and comprehensive legal framework to govern the use and oversight of investigatory powers.

Continue reading