Following a decision of the Information Tribunal issued on 19th February, the OGC has published two Gateway Reviews into the ID cards scheme.
The OGC announcement is here (with a link to the documents themselves). The Information Tribunal decision is here, on the Tribunal’s website. This case was previously the subject of a High Court appeal (from an earlier Tribunal decision).
Tucked away in Jack Straw’s House of Commons statement (24th February 2009) about the veto on disclosure of the Iraq War Cabinet minutes is the following intriguing passage:
Shortly after he became Prime Minister, my right hon. Friend the Prime Minister established a high-level inquiry into the 30-year rule under the chairmanship of Mr. Paul Dacre of the Daily Mail. That report, published last month, proposed a reduction from 30 to 15 years of the time after which Cabinet minutes and other papers would automatically be released. I have already told the House that the Government favour a substantial reduction in the 30-year limit. In that context, the report also recommended that we consider protection under the Act for certain categories of information.
The reference to the Dacre Report relates to the following section in chapter 8 of the Report:
8.7 As we noted in Chapter Five, there are genuine concerns among some ministers and civil servants about the early release of particularly sensitive types of papers … Given that we are recommending a substantial reduction to the 30 year rule, we believe that the government may wish to look again at the exemptions set out in the FoI Act.
8.8 We therefore recommend that, in parallel with the adoption of a 15 year rule, the government, in consultation with interested parties, may wish to consider whether there is a case for enhanced protection of such categories of information.
So what may be under consideration is a change along the following lines. The 30 year rule would be replaced by a 15 year rule; and at the same time some categories of information that are at present covered by a qualified exemption under the Freedom of Information Act 2000 would become subject to absolute exemption. Possible candidates for this treatment might be Cabinet minutes, or some forms of policy advice in central Government. A change of this nature might not even need primary legislation; an attempt could be made to implement the change by making an order under section 7(3) of the Freedom of Information Act. This was the technique that was used in the recent (abandoned) attempt to amend FOIA in relation to MPs expenses: see https://news.bbc.co.uk/1/hi/uk_politics/7839281.stm
I would make two brief comments. One is that the Dacre proposals in relation to the 30 year rule envisage that the change to a 15 year rule would be made over a long transitional period, coming fully into effect by 2025. Presumably any change in the FOIA exemptions would not be subject to any corresponding transition. A second is that the Environmental Information Regulations 2004 (EIR) could not be amended in the same way, since they implement a European Directive. So if the FOIA exemptions are tightened, expect a great deal more argument about whether particular requests fall within FOIA or EIR.
For Jack Straw’s statement see:
For the Dacre Report see:
https://www2.nationalarchives.gov.uk/30yrr/30-year-rule-report.pdf
On 20 February 2009, judgment was handed down in the case of Office of Communications v Information Commissioner [2009] EWCA Civ 90. This is the first case under the Environmental Information Regulations 2004 (EIR) to be heard by the Court of Appeal. The Information Commissioner was represented by Akhlaq Choudhury of 11KBW. This is an important judgment affecting the general approach to the public interest test in determining whether information under the EIR should be disclosed. The judgment is also relevant to the application of the public interest test under FOIA. The case concerned a request made to Ofcom (the regulatory body for radio communications) for the disclosure of information as to the location of mobile phone masts, and in particular for that information to be disclosed in a format that would enable the requester to manipulate the underlying data using data-handling applications. Ofcom resisted disclosure on the basis that it would prejudice (a) public safety (by identifying mast locations to criminals) and (b) the intellectual property rights of the Mobile Network Operators (such rights being the database rights in the information). The Information Tribunal considered that there was a strong public interest in disclosure given, amongst other matters, the benefit to epidemiological research as to the effects of mobile phone mast radiation on the health of the public. The Tribunal considered that it was entitled to take that public interest into account notwithstanding the fact that such research would be likely to involve an infringement of database rights. In addressing the public interest balance, the Tribunal took the then well-established course of separately weighing the public interest in maintaining each of the exceptions relied upon against the public interest in disclosure. It did not aggregate all the public interest factors against disclosure. The Tribunal found that the public interest balance favoured disclosure.
On the general point of principle, namely the approach to be taken in weighing the public interest in maintaining the exemption against the public interest in disclosure, the Court of Appeal disagreed with the Tribunal’s approach. The Court held that the public interest in maintaining each exemption should be aggregated and weighed against the public interest in disclosure. An exemption-by-exemption approach was still permissible provided that the matter is also looked at in the round at the end of the process by considering whether the aggregate public interest in maintaining the applicable exemptions outweighs the public interest in disclosure. However, the Court upheld the Tribunal’s’ approach in taking into account a factor as supporting the public interest in disclosure even where that factor involves a breach of third party intellectual property rights. The Court held that the legislative scheme is such that it is permissible to take such factors into account as an aspect of the public interest in disclosure. The matter was remitted to the Tribunal to reconsider the public interest balance in accordance with the approach laid down by the Court.
Jack Straw has announced that he is exercising powers under section 53 FOIA to prevent minutes of Cabinet meetings held in the period leading up to the Iraq war from being disclosed under FOIA. The announcement, which was made to Parliament on 24 February 2009, follows in the wake of the Information Tribunal’s decision in January 2009 that the minutes should be disclosed. It is understood that this is the first time the Government has used the powers of veto under section 53. Jonathan Swift of 11 KBW acted on behalf of the Cabinet Office before the Tribunal. 11 KBW’s Timothy Pitt Payne acted for the Commissioner.
Section 53(2) FOIA:
‘A decision notice or enforcement notice to which this section applies shall cease to have effect if, not later than the twentieth working day following the effective date, the accountable person in relation to that authority gives the Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure falling within subsection (1)(b)’
Tribunal decision:
Media Reports:
https://www.guardian.co.uk/politics/2009/feb/24/iraq-freedom-of-information
The Information Tribunal has been seized by an appeal against a decision of the Information Commissioner in a case on data sharing. The Appellant requested information from the Cabinet Office relating to a Cabinet Committee which had been set up to consider data sharing in the public sector. The Cabinet Office disclosed some information. However, it refused to disclose minutes of the Committee’s meetings on the basis that they were exempt from disclosure under section 35 FOIA (policy exemption). The Cabinet Office also refused to disclose the names of junior civil servants who attended the meeting on the basis that this information was exempt under section 40(2) FOIA. The Commissioner held that that the Cabinet Office’s refusal to disclose the minutes was lawful. The Appellant is now appealing the Commissioner’s decision to the Tribunal.
Information Commissioner’s Decision Notice:
https://www.ico.gov.uk/upload/documents/decisionnotices/2008/fs_50177136.pdf
Last week the High Court heard an appeal brought by the Government against the decision of the Information Tribunal in O’Brien v Information Commissioner & Department for Business Enterprise and Regulatory Reform. The appeal concerned, in particular, whether the Tribunal had erred when applying the public interest test in the context of the exemptions afforded under section 35 (policy development) and section 42 (legal privilege) FOIA. During the course of the appeal, questions where raised by the Respondent (Mr O’Brien) as to whether the Court had jurisdiction to consider: (a) an annex to the decision which the Tribunal had stated should remain confidential to the Commissioner and BERR, pending any further appeal; and (b) the disputed information which had been withheld by BERR. It was argued on behalf of the Commissioner: (a) that the Court had jurisdiction to consider the confidential annex as that annex clearly formed part of the decision which was being appealed; and (b) that the Court had power to consider the disputed information in closed session pursuant to CPR 52.10(1). In summary, CPR 52.10(1) affords the court all the powers of the lower tribunal which is being appealed from, subject to any enactment which precludes the court enjoying such powers. A judgment on the appeal is awaited.
Tribunal decision:
