Information rights: proposed legislative changes and more

Earlier this week, James Goudie QC blogged on the Intellectual Property Bill’s amendment to FOIA, introducing a new qualified exemption (section 22A) for continuing programmes of research intended for future publication. On the issue of research – which featured prominently in submissions from the university sector during FOIA’s post-legislative scrutiny health-check – this would bring FOIA into line with its Scottish counterpart. For an informative discussion of this topic, see this post from Kit Good.

Interestingly, that post refers to an ICO decision notice (FS50163282 of 29 March 2010) about “tree ring” data, a method used to analyse wood from archaeological sites to determine past climates. The ICO found that Queen’s University Belfast was not entitled to rely on (among other exceptions) regulations 12(4)(d) of the EIRs (material which is still in the course of completion, unfinished documents or incomplete data). As it happens, the Tribunal has today issued a decision concerned with tree ring data in a university research context: McIntyre v IC and UEA, EA/2012/0156. The Tribunal noted the ICO’s note of caution concerning ever-evolving research data: “this argument should not be used to withhold tree-ring chronologies endlessly, by arguing that they are always a ‘work in progress’”. However, on the facts of the case the Tribunal upheld UEA’s reliance on regulation 12(4)(d), as supported by the ICO.

This has not been FOIA’s only outing in Parliament this week. An early day motion was tabled on Tuesday of this week expressing concern at the Government’s proposal to make cost restrictions more public authority-friendly. The motion is worded as follows:

“That this House notes that the Government is proposing to make it easier for public authorities to refuse Freedom of Information requests on cost grounds in order to prevent disproportionate use of the Freedom of Information Act 2000 by some requesters; expresses concern that requests by those making moderate use of the legislation will also be more easily refused under the proposals; is particularly concerned at the proposal that the time which authorities spend considering whether to release information should be taken into account when calculating whether the cost limit has been reached; further notes that this proposal was expressly rejected by the Justice Committee in its post-legislative review of the Act; believes that this proposal will penalise requests raising new or complex issues which will inevitably require substantial time to consider; observes that the Government’s objective will in any case be achieved following recent decisions of an Upper Tribunal that requests which involve a disproportionate, manifestly unjustified, inappropriate or improper use of the Act can be refused as vexatious; and calls on the Government not to proceed with its proposals.”

The motion’s primary sponsor is Richard Shepherd. At present, there are 12 signatories. Maurice Frankel of the Campaign for FOI is urging more MPs to take up the cause.

Turning from FOIA to information rights concerns of a data protection variety, the Care Bill was introduced in the House of Lords last week. Notably, it contains an express provision making the provision of “false or misleading information” an offence (subject of course to the statutory definitions being met). Clause 81 provides as follows:

(1) A care provider of a specified description commits an offence if—

(a) it supplies, publishes or otherwise makes available information of a specified description,

(b) the supply, publication or making available by other means of information of that description is required under an enactment or other legal obligation, and

(c) the information is false or misleading in a material respect.

The aims of this clause are not confined to matters affecting personal privacy – indeed, the explanatory document suggests it is confined to ‘management information’. There may, however, be some crossover with information on individual cases, particularly in ‘low cell count’ cases where individuals could be identified from higher-level data. The Data Protection 1998 does not use the language of “misleading” – focusing instead on inaccuracy and fairness. There are often DPA-related grievances, however, in which “misleading” is an excellent summary of the data subject’s concern.

Robin Hopkins