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Following the launch of its media law practice in February 2016, 11KBW is pleased to announce that it will be sponsoring this year’s annual IBC conference on Defamation, Privacy and Reputation Management. The conference will take place in London on 14 June and speakers will include, amongst others, 11KBW’s Tim Pitt-Payne QC, Anya Proops QC and Christopher Knight. For any practitioner working on the interface between information rights and media law, this is an opportunity not to be missed. For further details see here.

We are delighted to offer a 30% discount off the delegate rate as sponsors of the conference – please use VIP code: FKW8263811KBW – click here

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

You can access the report here. The commission’s recommendations are at pages 57-58. Key recommendations to note:

• s. 35 (exemptions in respect of government policy information) 
  • s. 35(1)(a) should be replaced with an exemption ‘which will protect information which would disclose internal communications that relate to government policy’. [NB, it is not suggested in the report that this exemption should be cast as an absolute exemption. Rather this is about reframing the terminology of s. 35(1)(a)]
  • s. 35(1)(b) should be expanded to cover information relating to collective Cabinet decision-making, as well as protecting inter-ministerial communications.
  • re the public interest test, section 35 should be amended to make clear that:
    • ‘in making a public interest determination under section 35(1)(a), the public interest in maintaining the exemption is not lessened merely because a decision has been taken in the matter’.
    •  ‘in making a public interest determination under section 35, regard shall be had to the particular public interest in the maintenance of the convention of the collective responsibility of Ministers of the Crown, and the need for the free and frank exchange of views or advice for the purposes of deliberation.’
• S. 36 (prejudice to conduct of public affairs) – the requirement for the reasonable opinion of a qualified person should be removed
• the veto
  • ‘The government should legislate to put beyond doubt that it has the power to exercise a veto over the release of information under the Act’
  • ‘The government should legislate to make clear that the power to veto is to be exercised where the accountable person takes a different view of the public interest in disclosure. This should include the ability of the accountable person to form their own opinions as to as to all the facts and circumstances of the case, including the nature and extent of any potential benefits, damage and risks arising out of the communication of the information, and of the requirements of the public interest.
  • the veto ‘should be available only to overturn a decision of the IC where the accountable person takes a different view of the public interest in disclosure. Where a veto is exercised, appeal rights would fall away and a challenge to the exercise of the veto would be by way of judicial review to the High Court. The government should consider whether the amended veto should make clear that the fact that the government could choose to appeal instead of issuing a veto will not be a relevant factor in determining the lawfulness of an exercise of the veto. Until legislation can be enacted, the government should only exercise the veto to overturn a decision of the IC.
  • ‘The government should legislate to allow the veto to also be exercised even where the IC upholds a decision of a pubic authority. This would mean that the right of appeal would fall away and challenge would be instead by way of judicial review.
• limiting the scope for appeals: ‘That the government legislates to remove the right of appeal to the First-tier Tribunal against decisions of the IC made in respect of the Act. Where someone remained dissatisfied with the IC’s decision, an appeal would still lie to the Upper Tribunal. The Upper Tribunal appeal is not intended to replicate the full-merits appeal that currently exists before the IC and First-tier Tribunal, but is limited to a point of law’
• extensions of time to respond to FOIA requests – limited to an additional 20 days
• internal reviews – statutory time limit of 20 days for internal reviews
• publication obligations to be imposed on all FOIA authorities which employ more than 100 employees – to include duties to publish: (a) statistics on compliance with FOIA and (b) all requests and responses where information is provided in response to a request. Public bodies should be required to publish pay breakdown for senior employees
• code of practice – FOIA code of practice should be reviewed. Revised code should encourage public authorities to use s. 14 in an appropriate way
• ICO funding – The Government should review whether funding for the ICO is adequate.

More detailed analysis will no doubt follow in due course

Anya Proops QC

So there we have it: FOIA is working well and does not need to be substantially reformed. These are the overall conclusions of the FOIA review commission, as confirmed today by Cabinet Office Minister Matt Hancock (see the BBC report here). This outcome will come as a surprise (and a huge relief) to many who had believed that the commission would follow the Blair line and conclude that the FOIA genie needed to be put firmly back in its bottle. So apparently a triumphant outcome for those in favour of the transparency agenda, but a sorry day for those who, like Mr Blair, believe that FOIA has had and continues to have a ruinous effect on government.

The full report is due to be published shortly. It will be interesting to see whether, despite Mr Hancock’s announcement, there are some proposed changes which may yet have a rather hobbling effect on the FOIA regime. For example, it is not presently clear whether the report may effectively invite the Government to press ahead with a fees regime for FOIA tribunal cases. That said some media reports are already suggesting that, in response to the report, the Government has ruled out introducing a fees and has also opted not to shore up the veto regime, which was so extensively undermined in Evans v Information Commissioner (see here).

Of course, FOIA is itself a highly politicised football and it is hard to imagine that reining in a legislative regime designed to put power in the hands of the people would have been anything other than a fairly politically toxic proposition for the Government. Certainly, the deep opposition to such a proposition voiced by Labour politicians, such as Tom Watson MP, not to mention Conservative politicians such as David Davis MP, can hardly have reassured the Government that introducing restrictions on the FOIA regime would have been a political walk in the park.

An interesting question which many will now be pondering is whether the conclusions of the commission may actually add grist to the mill of those who are campaigning for an extension of the FOIA regime. For example, one wonders whether in the months to come we shall see a renewed focus on opening up the FOIA regime so that it applies to privatised public functions (see this further Guardian report on Tom Watson MP’s comments on this issue). One thing is for sure however, there will be further discussion both of the commission’s report and its aftermath on Panopticon.

Anya Proops QC

The Northern Irish courts have this week reached an important judgment in a case involving the hosting of unlawful content on youtube. Readers are referred to this helpful Inforrm post on the judgment by Olswang’s Ashley Hurst and Emma Cross.

Anya Proops QC