Various changes were made to FOIA by the Constitutional Reform and Governance Act 2010, which was passed during the “wash up” at the end of the last Parliament.  See section 46 of and Schedule 7 to the Act. In particular:

• The exemption in section 37(1) of FOIA (relating to communications with the Sovereign and with other members of the Royal Family) was extended. In relation to the Sovereign and the heir to the Throne, the exemption was made absolute .

• The period at which a record becomes a “historical record” was altered (this is often referred to as the “30 year rule”). Under FOIA as originally enacted, a record became a historical record at the end of 30 years beginning with the year following that in which it was created: see FOIA section 62(1). Information contained in a historical record could be exempt by virtue of sections 28, 30(1), 32, 33, 35, 36, 37(1)(a), 42 or 43: see FOIA section 63(1). Under the 2010 Act the period of 30 years is reduced to 20 years . Provision is made for a 10 year transitional period in introducing this change . However, in respect of section 36 (so far as it relates to certain information concerning Northern Ireland), section 28, or section 43, the time after which these exemptions can no longer be relied upon will remain 30 years not 20 years .

The reforms to the 30 year rule followed the Dacre Review, published on 29th January 2009 (see our earlier post here).

As yet it remains unclear when, or whether, these amendments will be brought into force.  This is a significant piece of unfinished business left over from the last Parliament.

The Open University? Application of FOIA to University Course Materials

The question of whether and to what extent FOIA can be used as a device to open up public access to educational resources is obviously an important one for our society. It is a question which was very recently considered in the case of University of Lancashire v IC (EA/2009/0034). In that case, the Tribunal was called upon to decide whether a university (UCLAN) had acted unlawfully in refusing a request made under FOIA for disclosure of course materials relating to a BSc degree course in homeopathy. The request had been refused initially on the basis that disclosure of the course materials would damage UCLAN’s commercial interests (application of s. 43 FOIA). Subsequently, when the matter came before the Commissioner, UCLAN also argued that it was entitled to refuse disclosure because of the risks disclosure would pose to the effective conduct of its affairs (application of s. 36 FOIA). The Commissioner held that UCLAN had erred in refusing to disclose the course materials, save that he accepted that certain elements of the course materials, and particularly empirical case studies, could be withheld under s. 41 FOIA (the confidential information exemption). UCLAN appealed the Commissioner’s decision to the Tribunal.

The Tribunal dismissed UCLAN’s appeal. In summary, it held that:

·       with respect to the application of s. 43 FOIA (the commercial interests exemption):

o      despite being a charitable institution, UCLAN did have ‘commercial interests’ and those commercial interests were engaged in respect of teaching materials produced for its degree courses (§31);

o      however, it could not be said that, at the time of the request (July 2006), there was any real and significant risk that disclosure of the homeopathy course materials would prejudice UCLAN’s commercial interestsand accordingly s. 43 was not engaged (§§32-39);

o      in any event, had s. 43 been engaged, the public interest balance under s. 2 FOIA would have weighed firmly in favour of disclosure (§§40-50).

·       with respect to the application of s. 36 FOIA (the public affairs exemption), the exemption was not engaged because the opinion of the qualified person relied on for the purposes of this section was neither reasonable in substance nor reasonably arrived at (§§52-62).

The following aspects of the Tribunal’s decision are particularly worthy of note:

·       in line with the earlier Student Loans case, the Tribunal took a broad approach to the concept of ‘commercial interests’ for the purposes of s. 43. It readily accepted that universities could have commercial interests in the courses which they ran;

·       UCLAN argued before the tribunal that the course materials were exempt from disclosure not least having regard to the facts that: (a) they contained a significant amount of third party copyrighted information and (b) disclosure of that copyrighted information under FOIA would disincline third parties from contributing to course materials in the future. The tribunal rejected these arguments. It did so on the basis that: (1) disclosure of information under FOIA would not in any way have diluted any copyright enjoyed by the third parties and (2) there was in any event no sufficient evidence before the tribunal to substantiate UCLAN’s case that disclosure of the copyrighted material would have had an alienating effect on third party contributors.

·        the Tribunal highlighted the degree of rigour which must be applied when the relevant qualified person is seeking to formulate an opinion which engages s. 36. It also highlighted that the public authority must itself provide evidence that the person who reached the relevant opinion was a ‘qualified person’ for the purposes of s. 36 (§53);

·       on the question of the public interest test, the Tribunal found that there were strong public interests in disclosure. Those interests included both: (1) a general public interest in members of the public being able to test the educational value of publicly funded degree courses and (2) a specific public interest in accessing information relating to a homeopathy degree course which was by its very nature inherently controversial.

The parties were represented by 11KBW’s Tim Pitt-Payne (counsel for UCLAN) and Anya Proops (counsel for the Commissioner).

Section 36 FOIA – Use it or Lose it

The question of whether public authorities can rely on exemptions which have been claimed for the first time before the Commissioner or the Information Tribunal is a notoriously controversial one (see further e.g. Home Office & Ministry of Justice v IC where the Home Office sought to argue, against existing Information Tribunal orthodoxy, that a public authority could rely on an exemption no matter how late in the process – see further my earlier post on this judgment). The issue of late reliance is however particularly acute in respect of s. 36 FOIA (exemption where disclosure would be likely to prejudice the effective conduct of public affairs). S. 36 provides for a rather unusual exemption in that, in contrast with other exemptions under FOIA, the exemption is only engaged where a relevant opinion has been reached by the ‘qualified person’. The fact that the exemption under s. 36 will only be engaged in circumstances where a particular event takes place (i.e. the relevant opinion has been reached), a question arises as to whether that event must take place prior to the request being responded to (i.e. via the refusal notice) in order for s. 36 to be engaged. This issue has recently been considered by the Tribunal in the case of Roberts v IC & DBIS (EA/2009/0035), 20 November 2009. In that case, the Tribunal held that because information could only be withheld if it was exempt at the time of the request (or more precisely at the time the request was being responded to), it followed that an opinion which was reached after the refusal notice was sent out could not constitute a valid opinion for the purposes of s. 36. The restrictive approach to s. 36 adopted in Roberts is likely to be regarded as a controversial decision and may well be appealed. In the meantime, public authorities should probably err on the side of caution and aim to ensure that, wherever possible, any s. 36 opinion is obtained prior to the release of the refusal notice. It is in any event worth noting that, in the earlier case of Student Loans Company v IC, the Tribunal held that it did not have powers under s. 58 FOIA to consider the application of s. 36 because: (a) no reliance had been placed on that section before the Commissioner and (b) the Tribunal only had powers to decide whether the Commissioner’s decision was lawful (i.e. having regard to the case which was put before the Commissioner).

‘Meta-requests’ and Late Exemptions – High Court Judgment

In Home Office & Ministry of Justice v IC (EA/2008/062), the Information Tribunal held that the Home Office had erred in refusing to disclose information which revealed how internally it had dealt with some 48 FOIA requests which had previously been made by a particular media organisation. In particular, it held that the Home Office had not been entitled to treat that information as exempt under section 36 FOIA (prejudice to public affairs). The High Court has now upheld the Tribunal’s decision on appeal by the Home Office – see Home Office & Ministry of Justice v IC [2009] EWHC 1611 (Admin). Notably, the High Court declined to decide the question of how the Tribunal should respond to a public authority which sought to invoke exemptions for the first time before the Tribunal. The Home Office had sought to argue, contrary to existing Tribunal orthodoxy (see particularly Department for Business and Regulatory Reform v IC & Friends of the Earth (EA/2007/0072)), that the Tribunal had no discretion to refuse late reliance on exemptions and that a public authority was, in effect, automatically entitled to invoke new exemptions at any stage in the process. The Commissioner invited the Court to approve the orthodox position. Keith J held that he ought not to decide this particular issue given that it had effectively become academic on the facts of the appeal. 

Government Appeals in Meta Request Case

In Home Office & Ministry of Justice v Information Commissioner, the Information Tribunal was called upon to decide the novel question whether information about internal FOIA processes operated by public authorities was itself susceptible to disclosure under FOIA. The information in issue in the case related to some 48 requests which had been made by or on behalf of a particular media organisation. The Government sought to argue before the Tribunal that it was lawfully entitled to withhold the requested information on the basis that  it was exempt under section 36 FOIA (prejudice to conduct of public affairs). In a robust decision, the Tribunal rejected the Government’s appeal. It found that the information was not exempt under section 36. It also found that the Government had erred by treating the requested information, in effect, as a special class of information which was less susceptible to disclosure under FOIA than other types of information. The Government is now appealing the decision to the High Court.

Tribunal Decision:


Legal Week Article: