Both the Environmental Information Regulations 2004 (EIR) and the Directive from which it derives (Directive 2003/4/EC) emphasise the importance of permitting the public access to information on ‘emissions’ – see further the fact that a number of the exceptions provided for in the EIR and the Directive are specifically disapplied in the case of emissions information (see r. 12(9) EIR and Art. 4(2) of the Directive). However, one question which is not always easy to answer in practice is what will constitute ‘an emission’ for the purposes of the legislation. In part, this difficulty arises because neither the EIR nor the Directive contains any definition of the word ‘emission’ (although the concept is examined in the Implementation Guide to the Aarhus Convention, which the Directive was itself designed to implement). The question of what will constitute an ‘emission’ for the purposes of the EIR and the Directive was considered for the first time by the Information Tribunal in the case of GM Freeze v IC & DEFRA (EA/2010/0112). In that case, the First Tier Tribunal held (obiter) that the word ‘emission’ did not include the deliberate sowing of genetically-modified seed. The Tribunal’s decision is also worth considering in view of the analysis it contains on the application of the personal data exception provided for in r. 13 EIR.
LATE RELIANCE: THE SAGA CONTINUES
We have posted a number of times on the contentious issue of late reliance, i.e. whether a public authority is entitled to rely as of right on an exemption or exception (under FOIA or the EIR) raised for the first time before the Tribunal. Last month, the Upper Tribunal answered this question with a firm “yes” in its decision on appeals by the Home Office and Defra, available here. That may not be the last word on this issue: Simon Birkett, founder of Clean Air London and Second Respondent to Defra’s appeal, has applied for permission to appeal that decision to the Court of Appeal. The press releases and grounds of appeal are available here.
THE EVOLVING BATTLE AGAINST ILLEGAL FILE-SHARING: SOME DATA PROTECTION OBSERVATIONS
Late last year, Julian Wilson blogged about the Digital Economy Act 2010, and the judicial review challenge to its compliance with EU law – including data protection law. With those proceedings drawing near, I have written a thought piece for Practical Law on some of the related issues, available here.
ACPO TO BECOME SUBJECT TO FOIA WITHIN MONTHS
Earlier this year, we posted on the Deputy Prime Minister’s announcement that a number of bodies – including the Association of Chief Police Officers – would become subject to FOIA. In response to a question from Green MP Caroline Flint, the Justice Minister Nick Herbert has confirmed that an order would be placed before Parliament in the spring to implement this extension of FOIA to ACPO. It’s not clear if and when the same will be done for any other bodies mentioned in Mr Clegg’s speech, such as UCAS and the Financial Services Ombudsman.
LATEST DECISION NOTICE ON “EMISSIONS”
At the 11KBW Information Law seminar last week, I mentioned the imminent Tribunal decision in the GM Freeze case, which will consider how the term “emissions” is to be construed for EIR purposes. On a related note, readers may be interested to know that the ICO last week issued a decision notice requiring Ofcom to disclose information about electromagnetic radiation from ethernet power line adaptors, on the grounds that this fell within the definition of “information on emissions” under the EIR. Read the DN here.
NEW TRIBUNAL DECISION ON DISCLOSURE OF COUNCIL’S COMPROMISE AGREEMENT WITH EX-CEO
Those involved in requests for information about compromise agreements between public authorities and departing senior employees will wish to pay careful attention to the Tribunal’s very recent decision in Gibson v IC and Craven District Council (EA/2010/0095). In this case, the Tribunal ordered disclosure of information insofar as it related to the use of public funds; the remainder could be withheld on the basis of s. 40 FOIA. This provides an illuminating contrast with other s. 40 FOIA cases about compromise or severance agreements, such as Wilson v IC (EA/2009/0082) and Waugh v IC and Doncaster College (EA/2008/0038).
The Tribunal found that all information in the requested compromise agreement was personal data. It agreed that generally information on compromise agreements should not be disclosed – but, as ever, context is important. Here the case concerned a very senior employee; further, the Council’s ex-CEO left office with the Council finances “in disarray”, but the auditor had – ultimately – approved the settlement paid under the compromise agreement.
As to the lawfulness of disclosure, it observed that this term is not defined in the DPA, but “seems to mean that information may not be processed when the law does not allow it, as opposed to when two parties have entered into a voluntary agreement not to disclose the information”. In other words, a mere contractual agreement as to confidentiality does not suffice to render disclosure “unlawful”.
As to the fairness of disclosure, the Tribunal distinguished between information on the use of public funds and other information. It noted that compromise agreements are “personnel matters”, generally attracting a strong expectation of privacy. Although “personnel” information comes into existence as part of the employee’s professional (rather than personal) activities, some of it (such as pension contributions and tax arrangements) are “nevertheless inherently private and would attract a very strong expectation of privacy and protection from the public gaze”.
Again, expectations of confidentiality were not decisive on the question of fairness: the Tribunal did “not regard it as reasonable for the ex-CEO (or the council) to expect that certain information relating to the use of public funds, to be hidden from public gaze by virtue of a confidentiality clause agreed between them”. Nor was the Tribunal impressed by submissions that disclosure would have a substantial adverse impact on the ex-CEO’s employment prospects or personal life.
Ultimately, fairness and condition 6 from Schedule 2 DPA were determined in similar terms: the Tribunal found that “the legitimate interests of members of the public [in transparency] outweigh the prejudice to the rights, freedoms or legitimate interests of the ex-CEO only to the extent that the information concerns the use of public funds”.