FOI+ Blog
Our FOI+ Blog is available to members of FOI+. The Blog is distributed via Network Mail and will be available for reference on the the FOI+ section of the website. It includes not only detailed analysis of recent decisions of both the Information Commissioner and the Information Tribunal but also specific advice on how to deal with requests of the moment across a number of sectors. A feature orginal to P-PACT and only available to members of FOI+ is the clearing house to deal with potentially vexatious requests (which may be exempt under S.14 FOIA) sent to a number organisations across sectors. Information currently included in our Network Alerts will also be included in the Blog. For your information, and as an example, the blog which went out to members of FOI+ on 26th May 2007 is shown below.
If you are currently not a member of FOI+ take a look at our join us page or give Paula Fallows a call on 01373 4850112 - we will be pleased to tell you how you can join this important network of practitioners.
FOI Blog
Dear Colleagues,
Welcome to this first edition of the weekly blog from Christine Gifford and the P-PACT Team. Exclusively for practitioners in the area of Access to Information, we aim to review the events of the current week and also to bring you up to date with what we see as the most important decisions of the Information Commissioner and Tribunal. This week we include copy on
Using S.14 FOIA to deal with Vexatious Requests
Amendments to FOIA
'Shredding of Information'
Recent decisions of the ICO and the Tribunal
Improvements and additions to the P-PACT website
This first edition is made available to practitioners across the public sector; the second and subsequent editions will be published using the Network Mail facility on the 'members only' section of our website FOI+
This week......
The end of the line for amendments to FOIA?
Not only did David McLean's 'shabby little Bill' fail to gain any sponsorship in the House of Lords thus falling by default, Tom Brake's Bill, introduced under the 10 minute rule also bit the dust when it was opposed at second reading. Will there be any attempts to introduce further amendments? That very much depends on the outcome of the consultative exercise led by Ministry of Justice which has just closed. 250 organisations or individuals contributed to the consultation so we will just have to wait and see. But the House of Commons Select Committee on Constitutional Affairs published their view yesterday
'unnecessary, unpopular and undesirable reforms'!
My own view would be that provided we can find a better way to deal with the large number of what may be vexatious requests, with which authorities in the wider public sector struggle, there is probably no need for change. I would also guess that after the mauling David McLean got and with a new team in government there will be little appetite for change.
Decisions from the Information Commissioner
The argument rages on between the ICO and the Office of Government Commerce following the Commissioner's decision in relation to Gateway reviews with headlines in some papers claiming that OGC staff had been instructed to 'shred' material. These cases are likely to have an important impact on the wider public sector where there are continual requests for impact assessment and appraisals of expensive projects.
Analysis
A regular feature of our weekly blog will be analysis of recent decisions of the Information Commissioner and the Tribunal, which we think, have wider lessons for the public sector. In this edition we have two of each; -
Who Holds Information?
An interesting decision by the Commissioner in highlighted the question of whether information created in the course of a survey on behalf of Leeds City Council should be regarded as held by or on behalf of the Council. When asked for copies of questionnaires, the Council denied holding them because they had been issued and collated on their behalf by a contractor - all they had or wanted was the finished report. However, the Commissioner established that the terms of the contract gave the Council the right to call in any data and required the contractor to hand over all data when the contract was spent. Accordingly the data was deemed information held on behalf of the Council and should be disclosed. This has implications for the many cases where public authorities commission work from others and the terms under which this is done and the terminology used.
Read the Information Commissioner's Decision Notice here
Information Tribunal - Information provided to the Commissioner in the course of investigation of a complaint - a safe pair of hands
The Tribunal recently decided a case where an appellant sought disclosure by the Commissioner of information that had been provided to him by a public authority as evidence why they had refused to disclose it in the first place. The Commissioner had declined to effectively short-circuit FOI Act procedures and the Tribunal upheld the principle that such information was given to the Commissioner to enable him to carry out his enforcement functions and that there was no binding obligation on him to disclose such information which was, effectively, provided in confidence. Section 44 of FOIA applied through section 59 of the DPA, as amended by the FOI Act. Equally, harmless information might be disclosed. Overall, it was vital that public authorities had trust in the safekeeping of information supplied in the course of investigation of complaints. Another element of this case was that any public authority might be termed "a business" for the purposes of section 59 of the DPA, as amended by the FOI Act.
Read the Information Tribunal's Decision Notice here
Hard copy or electronic disclosure?
In a recent decision, the Commissioner ruled that, because the applicant had not specified at the outset in what particular form he wanted the requested information, he had no grounds for complaint that it had not been provided in the form he later claimed he wanted it.
Bath and North Somerset District Council responded to a request for information with copies of what had been asked for, drawn from a number of officers and amalgamated to produce the reply. The applicant asked for the same information to be presented as from each separate source. The Council agreed to consider this but later refused because they were, in effect re-providing the same material. In his judgement, the Commissioner affirmed his view that section 11 provides for a choice of the means by which requested information is disclosed rather than the format.
Read the Information Commissioner's Decision Notice here
Disputed qualification of person registering a death
The Information Tribunal took the strict view that they were only concerned with the FOI aspects of a matter in which there was a dispute over who should have registered a sudden death. The rights or wrongs of that action and conflicts of private interests as distinct from public interests were irrelevant. The Tribunal was only empowered to rule on whether information had been reasonably withheld. The case includes an analysis of confidentiality and the acceptable exceptions to the rules, as well as what factors may create it, including the colour given by personal recollection and presentation. The Tribunal also commented on whether information might be regarded as in the public domain if it is privately known by a handful of people - probably not, in this case. There was also interesting comment on the difference between a statutory public record and the information on which it is based.
Read the Information Tribunal's Decision Notice here
More decisions and analysis next week......
S.14 FOIA - Vexatious Requests
The Information Commissioner has made it clear that he would welcome wider use of the exemption offered by S.14 FOIA in relation to vexatious requests. However, with no clearing facilities available to the wider public sector it has been difficult to demonstrate a pattern of requests such that they pose an excessive burden on the public authorities concerned when aggregated. P-PACT has therefore decided to offer this facility as part of the services available to members of FOI+. The Clearing House will consider whether requests received by members might fall under a definition of vexatious as set out in S.14 and the guidance in Awareness Guidance No 22 from the ICO taking into account the decision made in relation to multiple requests to the Cabinet Office dealt with in http://www.ico.gov.uk/upload/documents/decisionnotices/2006/decision_notice_fs50099755.pdf
If it is thought that a request might be suitable for a refusal on the grounds of S.14 a draft reply which can be adapted for use by those organisations wishing to claim the exemption will be circulated using Network Mail through FOI+
This weeks meeting of the National FOI Group in Birmingham is oversubscribed. The next free event will be in Cheltenham on 26th September - you will be able to register after 1st August - make a date in your diary!
You can see our website at www.publicpartners.org; find out how to join FOI+ and use the Clearing House on the Join Us page or email us as shown on the website.
Until next week,
Christine Gifford and the P-PACT Team
