Tag: section 40 FOIA

Local authorities and NHS Trusts (1): compromise agreements, officers’ identities and gagging clauses

Posted on | by Robin Hopkins

From a FOIA perspective, local authorities and NHS Trusts have this in common: both frequently receive requests for details of compromise agreements and other details about individual officers’ employment and disciplinary records. Three recent cases before the Tribunal confirm the general trend that – absent case-specific and well-evidenced arguments – the Commissioner and Tribunal re reluctant to order disclosure of such personal data, notwithstanding the context of public sector employees.

First, Trago Mills v IC and Teignbridge DC (EA/2012/0028) involved a request for the details of the severance package of a senior planning officer. Based on his dealings with that officer during a number of planning applications, the requester suspected that the stated reason for the officer’s departure from the Council (i.e. early retirement/redundancy) was in fact a ‘shield’, and that the officer had left for reasons of misconduct. The requester had also asked for information on that officer’s handling of planning applications in 2007.

The Council refused the request for the severance information on s. 40(2) grounds. The Commissioner and the Tribunal agreed: the requester’s suspicions were not borne out by the evidence, and the Council had a duty to respect its former employee’s reasonable expectation of privacy. The Tribunal also found that the Council held no further information within the scope of the request given the thoroughness of its searches. I represented the Council in this case, so no further commentary from me. For a detailed analysis of the issues, see the Local Government Lawyer’s article here. 11KBW’s Chris Knight represented the Information Commissioner.

Second, McFerran v IC (EA/2012/0030) involved a police search of a Council residence owned by Shropshire County Council. At the police’s request, two junior Council officers were present, but they had not been involved in any of the decision-making. The requester had concerns about the search and about what the Council may have told the police in the lead-up to the search. He requested the names of the two junior officers as well as their immediate superior. The Council refused, relying on s. 40(2).

The Commissioner ordered disclosure of the name of the more senior officer, but not of the two juniors. The requester’s appeal against the latter finding was dismissed, with the Tribunal observing that “although… there is clearly a legitimate public interest in transparency of activity by public authorities, which impinges on the personal freedom of householders, there is insufficient information provided to add significant weight to the general public interest in transparency in public affairs. The Appellant has not satisfied us, either, that his attempts to have the matter investigated are being thwarted by the absence of the names of the individuals in question. If there is sufficient information about the event to interest those responsible for an investigation the absence of names will not deter them.”

The McFerran decision illustrates that, when it comes to junior officials, general transparency considerations will usually not suffice for the disclosure of personal data: case-specific factors will be needed. Local authorities should, however, avoid the blanket non-disclosure of the names of all officers below a certain level of seniority. What matters is what work they have done, rather than what grade or band they are at.

McFerran also illustrates that requesters will often face the following sorts of objection: even if you have valid grounds for concern or complaint about individuals, there are ways of addressing those without disclosure of personal data to the world at large.

The third recent s. 40(2) arose in the context of NHS Trusts and allegations of Trusts using “gagging clauses” in compromise agreements to silence criticism or whistleblowing from departing employees. In Bousfield v IC and Six NHS Trusts (EA/2011/0212; 0213; 0247; 0250; 0251; 0252), the requester was interested not in any specific individual’s compromise agreement, but in the use of such agreements by NHS Trusts more generally. He asked: “Please provide copies of all compromise agreements you have entered into with doctors of any grade. Please also provide a list of exploratory or illustrator issues covered by the compromise agreements (ie the reasons the compromise agreements were entered into)”. One Trust refused to confirm or deny whether it held such information, relying on s. 40(5) (the argument being that there was a risk of identifying any individuals involved, which would breach the first data protection principle) and s. 43(3) (the argument being that confirmation or denial would prejudice the Trust’s commercial interests). Other Trusts also refused the requests, relying on a combination of s. 40(2) (personal data), s. 41 (actionable breach of confidence), 42 (legal professional privilege) and 36(2) (prejudice to the effective conduct of public affairs).

The Commissioner agreed, and the Tribunal has dismissed the requesters appealed. One Trust had conceded that, if there was evidence of gagging clauses being used to prevent former employees from raising any issues concerning patient safety, there would be enormous public interest in disclosing such practices. The decisive issue in this case, however, was that the Tribunal was satisfied on the evidence that no such clauses were being used by these Trusts. Therefore, it concluded that “it is entirely sympathetic to the overall concern that the Appellant feels with regard to the apparently increasing prevalence of gagging clauses but does not find that issue or concern in any way material to the matters which the Tribunal in fact has had to consider”.

It seems that, if the evidence had borne out the requester’s concerns, the analysis may have been very different. This ‘gagging clause’ issue has been considered at Tribunal level before: Bousfield v IC (EA/2009/0113). It may yet resurface.

Robin Hopkins

Section 40 FOIA, NCND and the public interest

Posted on | by Robin Hopkins

The requester (anonymised for the purposes of the decision) in Mr A v IC and The Health Professions Council (EA/2011/0223) asked for information about the response given by a named registrant to an investigation allegedly being carried out by the HPC into that registrant’s fitness to practice. The IC found that a ‘neither confirm nor deny’ response was appropriate, given that to confirm or deny (NCND) whether or not the HPC held the information requested would in and of itself disclose to the public whether there a complaint as to the registrant’s fitness to practise had been made. This would breach the first data protection principle. Section 40(5)(b)(i) FOIA therefore applied.

The Tribunal agreed. Curiously, it approached its task under section 58 FOIA thus: “The Tribunal does not take the IC’s decision again, rather its task is to consider the Decision Notice and to consider whether it can be impugned on legal grounds.”

Its decision turned largely on the usual features of a request for personal data: privacy implications, reasonable expectations and so on. The Tribunal’s decision does, however, contain a number of points of interest concerning the correct approach to section 40.

First, when judging whether, for section 40(5) purposes, confirmation or denial would breach any of the data protection principles, the appropriate reference point was disclosure to the public, not disclosure to the individual requester, given the overall wording of section 40 and the ‘motive blind’ approach to FOIA. The Upper Tribunal in All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner [2011] UKUT 153 (AAC) appeared to think otherwise, but its observation was obiter, and the Tribunal in the present case declined to follow it.

Secondly, it followed that for the purposes of condition 6(1) of Schedule 2 to the DPA (which refers to the “legitimate interests of the … third party or parties to whom the data are disclosed”), the appropriate reference point was again the public. Public rather than private interests are what count for condition 6(1) purposes.

Finally, the NCND provisions of section 40(5) do not appear in the list of absolute exemptions at section 2(3)(f) of FOIA. Does this mean the public interest test must be applied, even where – as the Tribunal had found – disclosure would breach the first data protection principle? The Tribunal agreed with the IC and the HPC that the answer is ‘no’. It followed Heath v IC (EA/2009/0020) in finding that the word ‘provision’ at section 2(1) FOIA is sufficiently ambiguous (as to whether it means a section of FOIA as a whole, or rather subsections) to admit of a purposive interpretation. In these circumstances, this allowed for data protection principles to be given primacy; no public interest question under section 2(2) of FOIA arose.

Robin Hopkins

CHILLING EFFECT, SAFE SPACE AND THE NHS RISK REGISTERS

Posted on | by Robin Hopkins

In a recent post, Panopticon brought you, hot-off-the-press, the Tribunal’s decision in the much-publicised case of Department of Health v IC, Healey and Cecil (EA/2011/0286 & EA/2011/0287). Somewhat less hot-off-the-press are my observations. This is a very important decision, both for its engagement with the legislative process and for its analysis of the public interest with respect to section 35(1)(a) of FOIA (formulation or development of government policy) – particularly the “chilling effect” argument. At the outset, it is important to be clear about what was being requested and when.

Risk registers in general

The DOH prepared two “risk registers” documenting the risks associated with implementing the “far-reaching and highly controversial” NHS reforms under what was then the Health and Social Care Bill. The Tribunal heard that risk registers are used widely across government for project planning. They provide snapshots (rather than detailed discussions) combining the probability of and outcomes from any given risk associated with the proposed reform; risks are then classified in red, amber or green terms. According to Lord Gus O’Donnell, who gave evidence in support of the DOH’s case, risk registers are the most important tool used across government to formulate and develop policy for risk management in advising ministers. John Healey MP, one of the requesters in this case, said that he was a minister for ten years and was never shown such a register.

The requests and these particular registers

On 29 November 2010, Mr Healey requested a copy of the “Transition Risk Register” (TRR). This, the Tribunal found, was largely concerned with operational matters; it aimed to identify implementation risks. By this stage, the government had already published its White Paper on the reforms. Crucially, the Tribunal’s finding was that the broad policy decision had been taken by the time of the White Paper. The subsequent consultation was largely directed at how best to implement the White Paper. In response to that consultation, the government adhered to the vast majority of its plans, and set about implementing them early where possible.

On 28 February 2011, the second requester, Nicholas Cecil, asked for a copy of the Strategic Risk Register (“SRR”). This was concerned with potential policy decisions for ministers. By that time, the Bill had been laid before Parliament. Parliament’s reaction meant that, in a number of respects, ministers were called upon to rethink policy decisions surrounding the NHS reforms.

Both requests were refused. The IC ordered that they be disclosed. The Tribunal upheld the IC’s decision on the TRR, but allowed the DOH’s appeal on the SRR.

The approach to section 35(1)(a) of FOIA

Before the Tribunal, it was accepted that this exemption was engaged with respect to both registers. The Tribunal considered that the need for a safe space for policy-making was not linear. Its analysis is worth quoting in detail:

“We are prepared to accept that there is no straight line between formulation and development and delivery and implementation. We consider that during the progress of a government introducing a new policy that the need for a safe space will change during the course of a Bill. For example while policy is being formulated at a time of intensive consultation during the initial period when policy is formed and finalised the need for a safe space will be at its highest. Once the policy is announced this need will diminish but while the policy is being debated in Parliament it may be necessary for the government to further develop the policy, and even undertake further public consultation, before the Bill reflects the government’s final position on the new policy as it receives the Royal Assent. Therefore there may be a need to, in effect, dip in and out of the safe space during this passage of time so government can continue to consider its options. There may also come a time in the life of an Act of Parliament when the policy is reconsidered and a safe space is again needed. Such a need for policy review and development may arise from implementation issues which in themselves require Ministers to make decisions giving rise to policy formulation and development. We therefore understand why the UCL report describes the process as a “continuous circle” certainly until a Bill receives the Royal Assent. However the need for safe spaces during this process depends on the facts and circumstances in each case. Critically the strength of the public interest for maintaining the exemption depends on the public interest balance at the time the safe space is being required.

We would also observe that where a Bill is a Framework Bill we can understand that even after it receives the Royal Assent there will be a need for safe spaces for policy formulation as secondary legislation is developed. We note in this case that the Bill, although suggested by DOH to be a Framework Bill, is prescriptive of economic regulation, and cannot be described purely in framework terms.”

Public interest factors in favour of maintaining the exemption: safe space and chilling effect

One of the DOH’s witnesses contended that the registers allowed a safe space for officials to “think the unthinkable”, but the Tribunal found it difficult to see how the registers – particularly the TRR – could be described in that way: “the TRR identifies the sorts of risks one would expect to see in such a register from a competent Department”. Nonetheless, the Tribunal accepted the strong public interest in there being a safe space for policy formulation.

The main argument concerned the chilling effect, which Lord O’Donnell addressed in his evidence. The Tribunal considered that there was no actual evidence of the chilling effect following other instances of comparable disclosures (e.g. following OGC v IC (EA/2006/2068 & 80), or following a 2008 disclosure of a risk register concerning a third runway at Heathrow). Similarly, a 2010 report from UCL’s Constitution Unit concluded there to be little evidence for the chilling effect.

Overall, the Tribunal cautioned against treating qualified exemptions as absolute ones. It said:

“We would observe that the DOH’s position expressed in evidence is tantamount to saying that there should be an absolute exemption for risk registers at the stages the registers were requested in this case. Parliament has not so provided. S.35 (and s.36) are qualified exemptions subject to a public interest test, which means that there is no absolute guarantee that information will not be disclosed, however strong the public interest in maintaining the exemption.”

Factors in favour of disclosure

The DOH’s witnesses sought to play down the significance of the NHS reforms in comparison to other important reforms implemented by government. Mr Healey, however, argued that they were exceptional. The Tribunal agreed with him.

It also noted that the Conservatives’ manifesto for the 2010 election had promised an end to top-down NHS reorganisation, but that its NHS White Paper then appeared to propose exactly such a reorganisation. It was not preceded by a Green Paper. It was clear to the Tribunal that the White Paper was published in a hurry and to much public concern. Given the scale and controversial nature of the reforms, transparency of decision-making was very important.

The Tribunal found the public interest balance to be very difficult in this case. Judging the matters at the time of the DOH’s refusal notices, the Tribunal concluded that the balance favoured disclosure of the TRR but not the SRR – due to the differences in the nature of the registers and the timing of the requests (see above).

Section 40(2) of FOIA and civil servants’ names

Finally, the Tribunal also considered the DOH’s reliance on section 40(2) to redact the names of a number of civil servants on the grounds of their being insufficiently senior for disclosure to be fair. The Tribunal ordered the disclosure of the majority of these names. In so doing, it focused on the substance of what each individual did with respect to this particular information – rather than on their Civil Service grades.

Robin Hopkins

NICK GRIFFIN IN THE TRIBUNAL: APPLICANT BLINDNESS, THE “JOURNALIST’S ROUTE” AND ARTICLE 10

Posted on | by Robin Hopkins

BNP leader Nick Griffin was convicted in 1998 for publishing material likely to stir up racial hatred. In 2009, Ian Cobain, an investigative journalist at The Guardian, requested sight of all Crown Prosecution Service papers relating to that prosecution. The Commissioner upheld its refusal. In Cobain v IC and Crown Prosecution Service (EA/2011/0112 & 0113), the Tribunal considered 3 exemptions, namely ss. 40(2), 32(1) and 30(1) of FOIA. For the most part, Mr Cobain’s arguments prevailed.

The decision is notable – indeed, essential reading – for a number of its key points. For example: when it comes to journalists requesting sensitive personal data, FOIA is not “applicant blind”. More generally, the decision affirms the importance of FOIA in facilitating investigative journalism. The approach to Article 10 ECHR from the Kennedy “report” is boldly affirmed. General guidance on s. 30(1) is set out. I’ll look at the key points from each exemption in turn. The decision is worth quoting in some detail.

Section 40(2) (personal data)

A number of important points emerge. First, in general, just because information emerged during evidence in a public trial, this does not mean it should automatically be disclosed under FOIA:

“Much of the information… was freely publicised at the trial in 1998… Where the public interest is engaged (as here where s. 30(1)(c) is invoked) it does not by any means automatically follow that such publication in the past determines the question of disclosure today. Most witnesses are entitled to expect that their exposure to public scrutiny ends with the conclusion of their evidence. Those who make statements do so in the expectation that, if not used at trial, they will not surface later.”

Secondly, just because information is in a prosecution file, it does not follow that it is necessarily personal data. The Commissioner was criticised for insufficiently granular analysis:

“It was clear that the broad and unparticularised approach adopted in the First Decision Notice could not be upheld. The fact that it is information held in a file assembled for the purposes of criminal proceedings against Mr. Griffin (see DPA s.2(g)) does not make it sensitive personal data, unless it is personal data in the first place.”

Some of the disputed information was therefore outside s. 40(2) because it was not personal data in the first place. Other information, however, was sensitive personal data. This meant that not only would the usual conditions need to be met (fairness, lawfulness, condition 6(1)) but a Schedule 3 condition was also mandatory. Those can be difficult to meet – unless you are a journalist. Condition 10 triggers the Data Protection (Processing of Sensitive Personal Data) Order 2000. This contains particular “lawful processing” conditions for the purposes of, among other things, journalism: see article 3 of the Order, which also imposes other conditions such as the disclosure being in the “substantial public interest” and “in connection with” issues such as “the commission of an unlawful act”. Paragraphs 31-33 of the Tribunal’s decision contain a useful summary of how the relevant provisions work.

This “journalist’s route” (my term, rather than the Tribunal’s) to obtaining sensitive personal data has been considered in a number of Tribunal decisions. In this case, it was given full effect:

 “Disclosure of the sensitive data would be “in connection with” the commission of an unlawful act (hence the conviction), seriously improper conduct and arguably Mr. Griffin`s unfitness for political office. It would be for the purpose of journalism, Mr. Cobain`s occupation, and would be intended for publication in his newspaper and possibly thereafter, in a book. Given the issues involved, namely racial and/or religious hatred and the right to express even extreme views, we find that disclosure would be in the substantial public interest. We do not consider that the passage of eleven years before the request renders disclosure unfair, or unwarranted by reason of prejudice to Mr. Griffin`s interests nor likely to cause substantial damage or distress to him. In making that judgement we have regard to Mr. Griffin`s age ( 50 at the date of the request, 39 at the date of trial), his continuing political prominence and his apparent claim to be an educated, reasonable and responsible MEP and party leader who has rejected any racial extremism formerly associated with his party.”

How does this “journalist’s route” square with the usual “applicant blindness” FOIA principle? The ICO argued that the latter prevails, such that the former only applies to pure DPA cases, not to FOIA ones. It emphasized the wording of s. 40(3)(a): disclosure to “a member of the public otherwise than under [FOIA]”. It argued that the average member of the public is the reference point for a FOIA disclosure. The average member of the public is not a journalist. The “journalist’s route” therefore has no place in FOIA.

The Tribunal disagreed (as the First-Tier Tribunal has done on a number of occasions now). It relied on the Upper Tribunal’s judgment in the APPGER case on this point, and said that:

 “… a requester who fulfils one or more of the schedule conditions is also a member of the public ( and is not the data processor ) who is receiving the information under FOIA. If this were not so, FOIA would be a valueless tool for the serious researcher, journalist, writer, politician or scholar seeking to investigate serious wrongdoing within the preceding thirty years. If that were the case, it would be reasonable to ask whether FOIA was worth enactment.”

The effect in this case was that s. 40(2) did not apply at all.

Section 32 (court records)

Next, the CPS relied on s. 32, the ambiguous wording of which has opened the door for Article 10 ECHR arguments: see the Kennedy v Charity litigation (Panopticon passim) in which the First-Tier Tribunal’s “report” on the application and effect of Article 10 on s. 32 will be considered by the Court of Appeal later this month. The Tribunal in Cobain wholeheartedly adopted the Kennedy report:

“We adopt with gratitude and respect the very careful reasoning of the report on this issue, which we believe accurately states the law as to Article 10 as recently developed… We do not doubt that s. 32(1) can be read down in a way which is consistent with Article 10. We consider that limiting the restriction in [s. 32(1)] so that it ends once a reasonable time has elapsed after the exhaustion or evident abandonment of the available appeal process would avoid a breach of Article 10.”

Consequently, s. 32 was not available as a ground for refusal in this case.

The Article 10 issue is obviously of enormous importance to the interpretation of FOIA – particularly, but not exclusively for journalists. As things stand, the role of Article 10 is uncertain. At least two other First-Tier Tribunals have heard or will hear argument on it this month (in the contexts of ss. 23, 40(2) and 41); the Court of Appeal will consider it in two cases this month, and the Supreme Court gives judgment in Sugar v BBC next week. Watch this space.

Section 30(1) (investigations)

In the context of this case, this exemption was “unarguably” engaged. The Tribunal made the following observations about the public interest in maintaining this exemption:

“The Tribunal acknowledges the substantial public interest in many circumstances in protecting from disclosure information gathered for the purposes of a criminal case, including the need to offer informants and witnesses protection from public exposure and a prosecuting authority a proper space in which to discuss and decide issues that arise.”

As against that, it said this about the public interest in disclosure:

“On the other hand, the public has a legitimate interest in criminal investigations and resulting court proceedings, especially where the defendant was a prominent political figure charged with an offence of great current importance in proceedings that he was keen to publicise. The passage of time is also a consideration. Legitimate public interest in such a case continues due to the profile of the defendant but the risk of any impact on the resulting proceedings disappeared long ago. More importantly, the relevant information in this appeal does not include statements from potentially vulnerable witnesses or highly sensitive material”.

The Tribunal therefore concluded that, in general, the public interest favoured the disclosure of the disputed information in this case, except for three categories which could properly be withheld.

On s. 30(1), this decision is a useful summary of the most relevant considerations. It is on ss. 40(2) and Article 10, however, that it has given a fresh boost to requesters.

Robin Hopkins

UPDATE ON RECENT TRIBUNAL DECISIONS

Posted on | by Rachel Kamm

The First Tier Tribunal (Information Rights) has had a busy start to 2012, with 7 decisions on its website already.

The first judgment out was Herbert v ICO and West Dorset District Council, EA/2011/0157. The appellant sought correspondence concerning the transfer to the Council of property previously owned by Lyme Regis Borough Council. The Council refused the request on ground that it was vexatious. The history of this case related to incidents and disputes regarding a different matter, between the appellant and the Council dating back to 1992, which culminated in 1996 when the Council revoked a license held by the appellant. The ICO agreed that the request was vexatious. The appellant submitted that he had a genuine interest in the history of Lyme Regis and that he believed that some historical documents were missing from the National Archives and that they had been retained by the Council because they related to illegally acquired property. The Council had previously allowed him to research their archives on another matter and he wished to be able to do so again to look for these missing documents. He said that he had expected the ICO to contact him so that he could put forward further arguments. The FTT agreed with the ICO and the Council that the request had been made under FOIA (and not the EIRs). The FTT set out the key principles that have been applied by Tribunals in considering whether requests were vexatious under s14 FOIA. The FTT considered the background and found that the appellant’s request was obsessive. Further, the request had the effect of harassing the Council (even though the language was not hostile), as allegations of illegality and impropriety were made at the same time as the requests and there was a context of a high volume of correspondence. The Council had made extraordinary efforts to accommodate the appellant’s requests over a considerable period of time and valuable resources of time and effort have been used which could otherwise have been used more productively. In the view of the FTT, to accommodate this request would constitute a further and significant burden on the Council. The FTT concluded that the request was vexatious.

The next decision to be promulgated was King v ICO, EA/2010/0126. The appellant sought from the ICO records of complaints where Crawley Borough Council had failed to comply with FOIA/EIRs and the ICO never served a ‘decision notice’. The ICO refused the request on ground that the information  consisted of ‘third party information’ that was exempt from the requirements of disclosure. It did not identify the exemption relied on for refusing to disclose the information. However, it did provide the appellant with a summary of the information requested. Further information was provided by the ICO in response to the appellant’s request for a review of the decision. The appellant then asked for the information with just the personal details of individuals removed. The ICO refused, citing s.44 FOIA, as exempting information that is prohibited from disclosure under another Act, namely s.59 DPA (which prevents disclosure of information collected in the course of an investigation where there is no lawful authority to do so). The appellant requested  review of this decision. In subsequent correspondence, the ICO  relied on s.40 FOIA (the data protection exemption). The appellant then asked the ICO to make a decision under s.50 FOIA as to whether it had complied with the Act. Having previously been acting in its capacity as a body which was itself subject to FOIA, the ICO then changed back to its normal hat. The ICO said that it was reversing its decision and it provided the appellant with the  letters which had been sent to the Council in the cases alleging non-compliance with FOIA, with personal data redacted. The appellant disputed that this resolved his request; he also wanted the documents from the individuals making complaints and from the Council. The ICO denied that these had been within the scope of his original request. The ICO subsequently issued a decision notice stating that it had provided the appellant with the information requested, but that it had breached FOIA (including by not holding an internal review at the right stage, by not providing the information at the outcome of the internal review and by not acting within the time-scales in the Act). The appellant appealed, arguing that the ICO had not provided all information which fell within the scope of his request, had misinterpreted his request and had breached the duty to provide advice and assistance. In relation to the scope of the request, the FTT criticised the ICO for not having properly analysed the request but found that in fact it had provided all information that fell within the scope of the request. The appeal therefore failed. The FTT also found that the ICO was not in breach of the duty to provide advice and assistance; the appellant argued that the ICO should have asked him to clarify his request, but the FTT found that this was not necessary because the request was in any event clear and adequately specified the information sought. This case very much turned on its facts, but it is interesting to see the application of FOIA to the ICO as a public authority and it is also a useful reminder to carefully read the request from the outset.

The third decision out in 2012 was Newcastle Upon Tyne Hospital NHS Foundation Trust v ICO, EA/2011/0236. This appeal was struck out because the judge considered that there was no reasonable prospect of it succeeding. The disputed information was statistics about the number of people dismissed over a three year period. The Trust refused to provide the information, on ground that it was reasonably accessible (s.21 FOIA) by way of an application in the employment tribunal litigation. The Trust subsequently provided the information voluntarily. The ICO found that the Trust had misapplied s.21 FOIA. The Trust appealed, arguing that “The point at issue is one of prioritising the correct forum by which information is provided. The Trust point is that once proceedings are issued, the correct forum lies within the proceedings that have been issued, in this case the Employment Tribunal“. Not surprisingly, the judge found that this argument had no reasonable prospect of success. FOIA rights are not put on hold if there is litigation between the parties. Further, information obtained under FOIA can be used for any purpose whereas information obtained in litigation can only be used for that purpose and so litigation disclosure is not an answer.

Cross v ICO, EA/2011/025 is also a strike out decision. The appellant sought from Havant Borough Council a building control decision notice, plans and inspection records relating to a loft conversion to his home carried out in 1987. The Council refused the request under the EIRs, on ground that it was not held at the time of receipt of the request. The appellant believed that he had seen these documents on a visit to the Council and that, whilst it was possible that they had subsequently disappeared, his appeal should not be struck out. However, the Council had conducted a six day trawl for the information and the judge found that it was obviously willing to provide the information if it could be found. The appeal was therefore struck out as having no reasonable prospect of success.

Finally, in Martyres v ICO and NHS Cambridgeshire, EA/2011/020, the FTT dismissed an appeal by an appellant who sought all information held by NHS Cambridgeshire (and its relevant community services provider), in respect of her deceased mother who had died on 29 August 2009 including information about the care received by her mother at a care home she was staying at prior to her death. The appellant argued that she was the next of kin, proposed executor and trustee of one of the Wills and had a valid claim against her mother’s estate under the intestacy  rules. In relation to s.41 (FOIA), the FTT found that the information was obtained from another person (social care professionals), it possessed the necessary quality of confidence and disclosure would constitute such an actionable breach of confidence. The FTT further concluded that s.21 FOIA did not apply, in that the appellant would not have been able to obtain the disputed information under the Access to Health Record Act 1980 (as the appellant claimed); whilst she was the nearest relative, she was not the personal representative. The FTT also dismissed the appellant’s arguments under the Human Rights Act 1998.

Rachel Kamm

UFO OFFICIALS’ PRIVACY PROTECTED

Posted on | by Robin Hopkins

This afternoon’s Tribunal decision in McGonagle v IC and MOD (EA/2011/0104) brings a sci-fi twist to FOIA caselaw. The decision is a straightforward application of the s. 40(2) exemption for personal data. The context is rather quirkier: the requester had sought the names of former Ministry of Defence officials responsible for UFO matters (note: that role has now been disbanded). The Tribunal found that the exemption applied. For those with an interest in such things, however, the MOD’s publication scheme provides rather a lot of UFO-related material.

Robin Hopkins