Cases dealt with by Information Rights Tribunal can be accessed at
http://www.informationtribunal.gov.uk/Public/search.aspx

Freedom of Information Act 2000 s37 - Brown v Information Commissioner and Attorney General, Information Rights Tribunal 26 August 2011

Rejection of appellant’s claim to see certain information in relation to Royal Wills – this was covered by the absolute exemption of disclosures of communications with certain members of the Royal Family.

http://www.informationtribunal.gov.uk/DBFiles/Decision/i556/20110826%20Decision%20EA20110002.pdf

Freedom of Information Act 2000 ss27(1)(a) and 40(2) – Gradwick v Information Commissioner, 23 August 2011

Application for disclosure of information held by Foreign and Commonwealth Office in relation to the removal of Jose Mancurio Bustani as director of the international organization the Organisation for the Prohibition of Chemical Weapons. Argued that disclosures requested would have prejudicial effect on relations between UK and an international organization and/or protected personal data under s40(2) – appeal allowed and Foreign Office ordered to remove redactions it had included in the disclosed documents.

http://www.informationtribunal.gov.uk/DBFiles/Decision/i556/20110826%20Decision%20EA20110002.pdf

ACCESS TO COURT DOCUMENTS – OPEN JUSTICE – WHETHER MEDIA HAD RIGHT TO INSPECT DOCUMENTS REFERRED TO IN ORAL ARGUMENT IN CRIMINAL TRIAL BUT NOT DISCLOSED – REGINA (GUARDIAN NEWS & MEDIA LTD) V CITY OF WESTMINSTER [2010] EWHC 3376
During extradition proceedings certain affidavits, witness statements and correspondence were referred to in oral arguments – the media claimed that such documents should be disclosed or at least they have a right to inspect them to produce a full and accurate report of the cases.  The court reaffirmed that position that such a right did not exist and that Article 10 ECHR had not created any such enhanced right.  In any event the documents referred to were covered by an exemption in s32(1) FOIA 2000 and it would be strange if request for information specifically exempt under the Act could be made at common law relying on Article 10 ECHR 1950.

Freedom of Information Act 2000 ss 1, 7 50, 58 & Schedule I – R (on the application of the BBC) v Information Commissioner, HL [2009] 1 WLR 430

Over a period there had been criticism of the BBC for being too pro-Palestinian and anti-Israel in its reporting of the situation in the Middle East. As part of its response the BBC commissioned an internal report by Malcolm Balen, an experienced journalist, and it was considered by the BBC Journalism Board and led to a further independent review by the Thomas Panel appointed by the BBC Governors. The Balen Report was never published and the applicant sought its release but this was refused on the grounds that it was held for the purposes of journalism, art, and literature and, thus, exempt from disclosure. Davies J at first instance [2007] EWHC 905, had held that this report was created and held for the purpose of journalism – a term which was to be interpreted broadly - and not held for the purposes of the management and training of journalists. It contained ideas and suggestions that might enhance journalistic standards in future and promote and develop the programme content. The Court of Appeal [2008] 1 WLR 2289 focused on the jurisdictional and appeal rights issues – was there a decision of a public body against which an appeal could have been made to the Information Commissioner under s50(1) and appealed to the Information Tribunal under s57(1) FOIA 2000. The BBC was defined as a public body in Schedule 1 – 'in respect of information held for purposes other than those of journalism, art or literature.' The Information Commissioner had taken the view that the BBC was not a public authority for these purposes benefiting from the derogation for journalism – the applicant did not pursue the judicial review application on appeal so the Court of Appeal did not have to rule on exemption issue. The Court of Appeal held that the appeal route to the Information Tribunal was not open because the Information Commissioner had merely decided that no application had been to a public authority so no decision had been made whether a public authority had dealt with the request correctly under the s50(1) FOIA 2000 – so there was no decision to appeal – the correct route was to apply for judicial review that the characterization of the BBC as a private body was not correct in law – that the derogation for journalism had been incorrectly applied. This case demonstrates the quite complex nature of the FOIA 2000 procedures. On a further appeal to the House of Lords by (3 to 2) that the Commissioner did have the jurisdiction to make a decision and there was a right to appear to the Information Tribunal under s50 FOI. A purposeful approach had to be adopted and when a request was made to a ‘hybrid’ body such as the BBC it should be treated as an application to a public body and when it and the Information Commissioner decided that the information fell within the private non-public aspect of the body that was a decision and could be appealed to the Information Tribunal. Since the judge had not ruled on whether the Information Tiribunal’s decision that the information was held for a purpose other than journalism the issue was remitted back to the Administrative Court to decide that issue – presumably if they follow the view taken by Davies J when considering the matter via the judicial review route the court will hold that the exemption applies. With respect to the view of the dissenting minority of Lord Hoffman and Lady Hale upholding the Court of Appeal decision seems the more convincing but clearly the majority were straining to close a lacuna in an already complex Act.

Freedom of Information Act 2000 ss35 & 42 – disclosure of advice of the Law Officers of the Crown and legal advice – HM Treasury v Information Commissioner [2009] EWHC 1811 (Admin) 20/2/09

An applicant had applied for the advice given the Treasury on whether what became the Financial Services and Markets Act 2000 was compatible with the Human Rights Act 1998. The Treasury refused disclosure relying on s35(1)(c) (the provision of legal advice by any of the Law Officers of the Crown) and further that by a combination of s35(3) and s2(1)(b) they did not have to disclose whether they held any such advice. On appeal the Information Commissioner held that disclosure of advice was justified under s42 (legal professional privilege – if such advice had been given in legal proceedings it would have been privileged). On appeal the Information Tribunal held that s35(3) did not apply and rejected any strong public presumption in favour of non-disclosure. Neither did the Tribunal give great weight to the longstanding Convention that information about and the content of the Law Officers’ advice should not be disclosed outside the Government without their consent. On an appeal on point of law Blake J held the reasoning of the Information Tribunal was flawed. The Tribunal had failed to give adequate weight both to the Convention and Parliament’s intention to reflect it in s35(1)(c) in effect holding strong public interest in non-disclosure. In any event the passage of the FSMA 2000 had been preceded by extensive and considerable open debate so allowing the Treasury appeal he held there was nothing special about the matter and that the public interest in non-disclosure outweighed the public interest in disclosure.

Freedom of Information Act 2000 – ss31 & 40 – Data Protection Act 1998 s4 Sched 1 & Sched 2 para 6(1) – whether information relating to serious disciplinary proceedings against judge should be disclosed - Guardian Newspapers & Media Ltd v Information Commissioner, Information Tribunal (EA/2008/0084), 10/9/09

The Information Tribunal has upheld the decision of the Information Commissioner that decisions about relating to serious disciplinary proceedings, which have been upheld, against members of the judiciary between 1998-2005 should be disclosed, including the names of the judges and a reasonable summary of the proceedings and the outcome. While the Department of Constitutional Affairs (later the Ministry of Justice) were willing to reveal number of complaints and those upheld they would not issue more detailed information. [Note post the Constitutional Reform Act 2005 a specific regime is now in place – in effect it being at the discretion of the Lord Chancellor and/or the Lord Chief Justice what should be published]. The general attitude of the Government was that while they were revealing information on specific occasions ‘to mend any loss of public confidence in the judiciary’ - ‘routine’ disclosure would damage public confidence in the judiciary in a way which would prejudice the conduct of public affairs (relying on s31) – at a later stage they added reliance the absolute protection of personal data under s40 FOI 2000. The Information Commissioner accepted the argument that the information related to personal data and benefited from protection under s40. The Information Tribunal upheld this view - there was no doubt in the Tribunal’s mind that were all reprimands to be publicized in the way sought for by Guardian Newspapers, there would clearly be a risk of there being great distress to at least some judicial office holders. Although each of these factors is not determinative, the Tribunal was impressed by the fact that first, any reasonable expectation of privacy would be breached; secondly, that privacy would be invaded, perhaps intrusively so, leading to perhaps even further invasion of privacy in the form of press coverage which might or might not be accurate, a point identified by paragraph 27 of the Decision Notice; and finally, there might well be, in many cases, a degree of disproportionateness in that disclosure could cause an undermining of authority generally and thus prejudice any further employment prospects of whatever sort in the wake of a reprimand. The Tribunal was also particularly impressed by the fact that having seen the essential requested information, it would be unfair for disclosure to be made as to a reprimand that occurred in 1998, not only were the same to have been publicized in 2005, but also even now many years later, when the office holder may still be in office and have otherwise conducted his or her functions in a totally acceptable and otherwise unimpeachable manner.

The Environmental Information Regulations 2004 reg 12(5)
Office of Communications v Information Commissioner [2010] UKSC 3, [2010] Env.L.R. 20

OFCOM challenged a ruling that they had to reveal the addresses and postcodes of all mobile phone base masts. OFCOM had established a website on which members of the public could search for information about mobile phone base stations. The website did not however give the address of the base station or its postcode, national grid reference, or latitude/longitude co-ordinate, nor did it indicate whether the base station was mounted on a particular building or structure. A request was made to OFCOM by the NHS to disclose grid references for the base stations for purposes of epidemiological research. OFCOM declined, relying on the Environmental Information Regulations 2004 reg.12(5)(a) and reg.12(5)(c) on the basis that disclosure would compromise the security of the sites which provided the emergency services network and would also adversely affect the intellectual property rights of the mobile network operators which provided the information for the website. The Information Tribunal found that the exceptions under reg.12(5)(a) and (c) for public safety and intellectual property rights were engaged but that in each case the public interest in maintaining the exception was outweighed by the public interest in disclosure. The tribunal held that each exception had to be considered separately for the purposes of the public interest balancing exercise under reg.12(1)(b) and that it was not permissible to weigh the aggregate public interest in maintaining the exceptions against the public interest in disclosure. The judge upheld the tribunal's approach and dismissed OFCOM's appeal. OFCOM submitted that (1) the tribunal had erred when carrying out the public interest balancing exercise under reg.12(1)(b) by looking at each applicable exception separately and declining to consider the aggregate public interest; (2) it was not open to the tribunal to find a public interest benefit in the use of the information for epidemiological investigations where such use would be in breach of the database rights of the network operators; (3) there was no public interest in disclosing the name of the operator in respect of each base station.

The Court of Appeal ruled that the information disclosed could include the name of the relevant operator of the base station and the court could balance the public interest in the NHS epidemiological research even if its use would be in breach of the database rights of the network operators. In deciding whether the public interest in disclosing the information outweighed the exceptions from disclosure – the exceptions were to be read narrowly but all read together when looking at the overall balance and not each separately. Reg 12(1)(b) was to be read as ‘maintaining the exception or exceptions’ which in the Court’s view was more consistent with Council Directive 2003/4/EC on which the regulations were based. The case was remitted to the Information Tribunal to reconsider the matter on the effect of the cumulative effect of the exceptions relied on in Article 12(5) as against the public interest in disclosure.  The UK Supreme Court (3:2) favoured the approach of the Court of Appeal but felt that the matter was not ‘acte clair’ and that there was a doubt, so a question had to be referred to the Court of Justice of the European Union: the question being:

Where a public authority held environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception under art.4(2) of the Directive, but would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, whether the Directive required a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure.’

Regulation of Investigatory Powers Act 2000 s65 – Article 10 ECHR - challenge to decision to refuse security officer right to publish a book discussing work in security services – proper forum to adjudicate challenge A v B (Investigatory Powers Tribunal Jurisdiction) [2009] 3 All ER 416

X, a former member of the security service, had written a work containing a description of his work for the service. X was bound by a strict duty of confidentiality and could not publish without the authority of the Director of Establishments of the Security Service, which was refused. X sought to challenge the decision, arguing that the refusal infringed his rights of freedom of expression under Article 10 ECHR by judicial review in the Administrative Court of the Queen’s Bench Division. The Director argued that under s65 RIPA the Investigatory Powers Tribunal had the exclusive right to adjudicate on these matters. X claimed that the Administrative Court was the appropriate court under s7 Human Rights Act 1998 – in effect was challenging a decision of the Crown. The Court of Appeal held that this was an action against a decision of the intelligence services and under s65(2)(-3) the IPT had the exclusive jurisdiction to hear the matter.

There is a web link to this Act in the Legislation section of this Online Resource Centre.

Freedom of Information Act 2000 – ss3, 7, 50, Sched 1 – Sugar v BBC [2008] EWCA Civ 191, 25/1/08 - information held by BBC – whether exempt from disclosure on grounds created for purposes of journalism, art or literature – appeals procedure – judicial review.

Over a period there had been criticism of the BBC for being too pro-Palestinian and anti-Israel in its reporting of the situation in the Middle East. As part of its response the BBC commissioned an internal report by Malcolm Balen, an experienced journalist, and it was considered by the BBC Journalism Board and led to a further independent review by the Thomas Panel appointed by the BBC Governors. The Balen Report was never published and the applicant sought its release but this was refused on the grounds that it was held for the purposes of journalism, art and literature and, thus, exempt from disclosure. Davies J at first instance [2007] EWHC 905, had held that this report was created and held for the purpose of journalism – a term which was to be interpreted broadly - and not held for the purposes of the management and training of journalists. It contained ideas and suggestions that might enhance journalistic standards in future and promote and develop the programme content. The Court of Appeal focused on the jurisdictional and appeal rights issues – was there a decision of a public body against which an appeal could have been made to the Information Commissioner under s50(1) and appealed to the Information Tribunal under s57(1) FOIA 2000. – the BBC was defined as a public body in Schedule 1 – 'in respect of information held for purposes other than those of journalism, art or literature.' The Information Commissioner had taken the view that the BBC was not a public authority for these purposes benefiting from the derogation for journalism – the applicant did not pursue the judicial review application on appeal so the Court of Appeal did not have to rule on exemption issue – the Court of Appeal held that the appeal route to the Information Tribunal was not open because the Information Commissioner had merely decided that no application had been to a public authority so no decision had been made whether a public authority had dealt with the request correctly under the s50(1) FOIA 2000 – so there was no decision to appeal – the correct route was to apply for judicial review that the characterization of the BBC as a private body was not correct in law – that the derogation for journalism had been incorrectly applied. This case demonstrates the quite complex nature of the FOIA 2000 procedures.

Freedom of Information Act 2000 - s40 – Freedom of Information Scotland Act 2002 – ss15 & 38 – Data Protection Act 1998 – ss1, 2, 4(4) & Schedules 1,2 & 3 – Common Services Agency v Scottish Information Commissioner - exemption of personal data from disclosure under Freedom of Information legislation – whether modified data to camouflage identity of subject information held by a public authority - whether data can be released in anonymised form - First Data Protection Principle – Sensitive personal data.

There is a link to the full text of the Freedom of Information Scotland Act 2002 in the Legislation section

A Scottish case – though there are implications for English law as the relevant sections (s38 FOISA 2002 & s40 FOIA 2000) are substantially identical form – it concerned a request to a Scottish Health Agency for releases of figures in relation to the occurrence of childhood leukaemia in Dumfries and Galloway by census ward – this concerned health concerns relating in part to the adjacent Sellafield nuclear processing facilities. The Agency refused to give the data because there was a significant risk of the indirect identification of living individuals due to the low numbers resulting from the combination of the rare diagnosis, the specified group and the small geographic area and was therefore by the operation of s1(1) DPA 1998 and ss38(1)(b) & s38(2) FOISA 2002. The Scottish Information Commissioner took the view that the release of the information would infringe the first data principle (Sched 1 DPA 1998) in that it would unlawful as a breach of confidence and it would also be unfair, as a person would not expect their diagnosis of leukaemia to be placed in the public domain and would expect it to remain confidential. However, as part of their duty to advise and assist the applicant under s15 FOISA 2002 he said the Agency should seek to provide the information in modified form, which would, in his view, protect the identity of the individuals. The Agency appealed to the Court of Session on a point of law and they held that a table setting out the census ward data in the modified form (a statistical method called barnardisation) would not constitute personal data. The Agency appealed to the House of Lords, also arguing that they did not hold the information in terms of the Act, as they had to carry out a modification exercise to give it to the applicant. The House of Lords, remitting the case back to the Scottish Information Commissioner, held that the information was held by the Agency and the term was to be given a liberal interpretation – the protection of the Agency being s12 FOISA 2002 which meant that if this conversion activity exceeded a certain cost they could refuse to disclose and the cost would include the time involved in the transformation process. They held that he had erred in law in not deciding whether the camouflaged data was personal data and if it was could be disclosed under the provisions of the DPA 1998 – rendering data anonymous in such a way that the individual to whom the information related was no longer identifiable would take the information out of the category of personal data and would enable it to be released. The Commissioner would have to decide whether the camouflaging involved would achieve that effect. If it could not be anonymised it might be possible to justify release based on Sched 3 para 7(1)(b) that the processing of the sensitive personal data was necessary for the exercise of any functions conferred on any person by or under an enactment (here public health legislation).

Freedom of Information Act 2000 – ss 41, 44 – Animals (Scientific Procedures) Act 1986 s24 – Secretary of State for Home Office v British Union for the Abolition of Vivisection [2008] EWHC 892(QB) 25/4/08 - animal welfare organizations seeking information about breeding and supply of animals of scientific procedures – whether such information protected on grounds of confidence and privacy.

An anti animal vivisection group sought information in relation to the abstracts and materials supplied in relation to animal research project licences under the Animals (Scientific Procedures) Act 1986. S24 A(SP)A 1986 made it a criminal offence to disclose material otherwise than in accordance with the Act. The abstracts contained commercially sensitive materials and materials relating to security issues. Material outside the abstracts had been disclosed – in relation to the question of confidence it was argued that for the exemption against disclosure to be applied the disclosure of the material would amount to an actionable equitable breach of confidence. The Information Tribunal had interpreted s24 A(SP)A 1986 in the same light as s44 FOIA 2000 and treated confidential information as that falling within the definition of Coco v AN Clark (Engineers) Ltd (1968) FSR 415

Eady J said confidentiality had be to be read in the much wider modern sense taking into account cases such as Campbell v MGN [2204] 2 AC 457 and McKennitt v Ash [2008] QB 73 and Article 8 & 10 ECHR 1950 – Tribunal had taken too narrow a view.

The Court must take account of the tensions between s24 A(SP) A 1986 and the FOIA 2000 regime but the Government, under heavy pressure from the scientific community, had specifically retained s24 and not repealed it when introducing the new freedom of information regime. The disclosure was thus prohibited and would constitute a criminal offence and therefore was exempt under s44 FOIA 2000.

Court of Appeal [2008] EWCA Civ 870, 30/7/08

The Court of Appeal rejected an appeal against Eady J’s decision and refused to order disclosure. They affirmed that the three stage test stated by Megarry J in Coco v A N Clark (Engineers) [1986] FSR 415 Ch.Dwas not to be used in interpreting s24 of the Animals (Scientific Procedures) Act 1986 – the question was simply whether the relevant official knew or had reasonable grounds for believing that the information was given in ‘confidence’. The information had been provided for the purposes of the statutory testing regime and no other, and could not be used for any other purpose without the applicant’s consent. There was no balancing exercise required to take account of any general interest in public information as existed under the Freedom of Information Act 2000. The judge’s decision to apply the exemption in s44 FOIA 2000 was quite correct.

Freedom of Information Act 2000 – ss1(1), 33(1)(b) & 35 – Article 9 Bill of Rights 1689 – Office of Government Commerce v Information Commissioner [2008] EWHC 737 ( Admin), 11/4/08– disclosure of commercial reviews by Office of Government Commerce of identity card scheme – whether disclosure should be ordered – role of Ministerial answers to Parliamentary questions on matter – Whether views of Parliamentary Select Committee should be considered and any evidence given by witnesses to that Select Committee.

The applicant sought information in relation to the conduct of so-called 'gateway reviews' by the Office of Government Communications in relation to the controversial Government project to introduce identity cards into the UK. The OGC claimed that the information was exempt under s33(1)(b) (audit functions – the examination of the economy, efficiency and effectiveness with which other public authorities used their resources in discharging their functions) and s35 (the formulation or development of Government policy).
The Information Commissioner and Information Tribunal ordered disclosure on the basis that s33 did not apply and the public interest in disclosure outweighed the interest in non-publication in s35. The decision, subject to certain modifications was upheld by the Information Tribunal. The Speaker of the House of Commons argued that there was a breach of Article 9 Bill of Rights 1689 in that there was a breach of Parliamentary privilege in the Information Commissioner taking into account the adequacy of a ministerial reply to a Parliamentary question in relation to the matter and the conclusions of the Parliamentary Select Committee on Work and Pensions in relation to the issue and how far the Government had complied with the Committee's recommendations on disclosure in relation to the identity card scheme.
The judge concluded, applying Prebble v Television New Zealand [1995] 1 AC 321 and Hamilton v Al Fayed (No 1) [2001] 1 AC 395, that the court should not consider allegations of impropriety or inadequacy or lack of accuracy in the proceedings of Parliament including Parliamentary questions and answers. The opinions of the Select Committee were irrelevant to the exercise of the judicial function in interpreting the FOIA 2000 and it was best if the Parliamentary questions were not answered by Ministerial statements as to the result of the application of the FOIA 2000 to a particular case. The Information Tribunal should not refer to evidence given to a Parliamentary Committee that was contentious or to the opinion or finding of the Committee on an issue that the Tribunal had to determine. The Information Tribunal had taken into account illegitimate and irrelevant matter and its decision was, therefore, quashed and the case remitted for re-hearing of the appeal.

Freedom of Information Act ss 1(1)(b), 2(2), 35 – Department of Media Culture and Sport v The Information Commissioner, Information Tribunal, Appeal Number EA/2007/0090, 29 July 2008 – information concerning listing of sporting events under Broadcasting Act 1996 – refusal to release documents as relating to formulation and development of UK Government policy and involved ministerial communications

In 1998 the Secretary of State for Culture Media and Sport announced the Government's decision on the list of major sporting events considered to be of major importance to society and protected under the Broadcasting Act 1996 from having rights sold for exclusive viewing by subscription or pay-per-view arrangements – this followed a publication of a consultation document and a report by an Advisory Group. Between the publication of the Advisory Group Report and the final decision a number of submissions were made to the Minister in relation to the pros and cons of listing, there were also communications from other Ministers. A solicitor sought disclosure of these background materials. This was refused on the grounds of s35(1)(a) (documents relating to formulation of Government policy) and s35(1)(b) (ministerial communications). It was suggested the advice was being sought on behalf of a disappointed media group who were considering legal action because of a detrimental affect on them by the ultimate listing decisions. The Information Commissioner who held that the public interest in disclosure outweighed the public interest in maintaining the exemptions, subject to limited redacting of certain names. In particular 7 years had now elapsed and the information might be regarded as historical. The Information Tribunal reversed this decision and upheld the exemptions. If the public authority is unable to identify a significant public interest in maintaining the exemption, application of the public interest test under s2(2)((b) will lead to disclosure. If the public authority is able to identify that public interest, and it is substantial, it will consider the public interest in disclosure and decide whether the former outweighs the latter. Disclosure will be ordered if either the balance is in favour of disclosure or the scales are in equilibrium. In this case the Information Commissioner had not effectively demonstrated that the public interest in disclosure outweighed the interests in maintaining the exemption.

Regulation (EC) No 1049/2001 – Turco & Kingdom of Sweden v Council of European Union, (Joined Cases C-52/05/P 7 C-39/05/P) , ECJ 1/7/08 - EU Freedom of Information – Access to legal advice documents prepared for European Council – Council refusing access – whether refusal valid – application to annul decision.

There is a link to the text of Regulation (EC) No 1049/2001 in the Legislation section of the Website

The applicant (Turco) and the Swedish Government appealed against a decision of the EU Council refusing them access to an opinion of the Council's Legal Service for the Council concerning a proposal for a Council Directive laying down minimum standards for the reception of applicants for asylum in Member States. The applicants relied on Article 255 EC Treaty and implementing Regulation No 1049/2001. The Council based their refusal on Article 4(2) of the regulation – that disclosure would undermine the protection of court proceedings and legal advice and that there was no overriding public interest in disclosure. After a request for reconsideration the Council permitted limited disclosure of the introductory paragraph of the document but declined to release the rest. The applicants argued that Article 4(2) only applied to legal advice given in relation to legal proceedings and that the Council should have sought to rely on Article 4(3) – that disclosure would seriously undermine the institution's decision-making process. Alternatively it was argued that the Council had failed to give sufficient specific consideration to the particular document and instead relied on general presumptions relating to a class of documents. The European Court of First Instance rejected the appeal and the applicants appealed to the European Court of Justice on a number of points of law. The ECJ annulled the Council's decision. It held that any exception to the general presumption in favour of disclosure had to be strictly applied and interpreted. The Council had to expressly pursue three steps in relation to the specific document – (i) does it relate to legal advice; (ii) would disclosure undermine the protection of that advice and that threat must be reasonably foreseeable and not merely hypothetical and (iii) was there any overriding public interest in disclosure? This reasoning must be set out in any refusal document and while general presumptions might be regarded it was incumbent on the Council to establish in each case whether the general considerations were in fact applicable to the specific document. In this case the Council's response had been too general and its argument that publication of such legal opinions could lead to doubts as to the lawfulness of the ultimate legislative act was not valid. It was rather the lack of information and debate which was capable of giving rise to doubts. The rejection was too general and abstract. Regulation No 1049/2001 imposes, in principle an obligation to disclose the opinions of the Council's legal service relating to a legislative process and here there was no evidence that the document was of a particularly sensitive nature.

Roberts v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1934 (QB), Cranston J, 1/8/08 – Data Protection Act 1998 – ss7 & 12 and Article 6 European Convention on Human Rights

The applicant, R, was an in-mate of a high-security hospital and subject to a hospital and restriction order. A hearing was going to take place before a Mental Health Review Tribunal and a report had been prepared about R by a psychologist, which caused the trust responsible for the secure hospital some concern when they read it. R, who had not seen the report, requested its disclosure which was refused on the grounds that the trust did not intend to rely on it at the subsequent hearing but on another report. The applicant argued he was entitled to see either the whole report, or a suitably redacted version under either s7(9) or s15(2) DPA 1998 to enable him to fairly challenge the trust’s evidence at the Tribunal and this was in accordance with his rights under Article 6 ECHR 1950 to a free and fair trial of the issue. The court ruled that on basis of evidence read and heard under s15 DPA 1998 in the absence of the applicant or his representatives there were clear and cogent reasons why the report should not be disclosed and these clearly meet the requirements of the Act, but were stated in a closed judgment which should not be published. There was no injustice to the applicant because he could submit his own medical evidence to the tribunal and Article 6 did not provide for an unqualified right to see every document that might be produced about the applicant, and in any event the trust were not going to rely on the report at the trial. Further it was not appropriate to disclose the report or a redacted version to R’s representatives as they were required to disclose the matter to the client in the absence of his specific authorisation not to and in any event he could change his mind and revoke the authorisation to withhold the report from him.

Freedom of Information Act 2000 – s53 Executive Vetos

A much criticized aspect of the UK freedom of information regime is the power of the Minister of Justice to, in effect, reverse a decision of the Information Commissioner and/or the Information Tribunal and decide that, despite an adjudication that information should be published in the public interest, the Minister can exercise an overriding power to prevent the publication of the information.
Jack Straw the Lord Chancellor and Minister of Justice has exercised the veto on two occasions recently:

1. Cabinet Minutes in relation to discussion of Attorney-General’s advice on legality of invasion of Iraq as part of second Gulf War - see http://www.justice.gov.uk/news/docs/foi-statement-reasons.pdf

2. Minutes of Cabinet Ministerial Committee in 1997 relating to devolution for Wales and Scotland - see http://www.justice.gov.uk/news/docs/statement-of-reasons.pdf

Freedom of Information Act 2000 – s7 & Schedule I – BBC v Sugar [2009] EWHC 2349, Irwin J, [2010] 1 All ER 782 & BBC v Information Commissioner [2009] EWHC 2348 (Admin) Irwin J, [2010] EMLR 6  – BBC exempt from disclosure of information produced for the purposes of art, journalism or literature.

Over the years there has been criticism of the BBC’s reporting of events in relation to events connected to the disputes and conflicts between Israel and the Palestinians. The BBC commissioned the Balen Report to review the issue of editorial standards and impartiality in relation to the reporting. The claimant wanted the disclosure of this report which had not been made publicly available by the BBC. The Court concluded that it had been predominantly produced for the purposes of ‘journalism’ even though it might have other uses such as whether the BBC was properly complying with Charter requirements on impartiality etc.
Similarly a decision of the Information Tribunal to order the disclosing of specific programme budgets was quashed again on the grounds that it was predominantly held for purposes connecting to ‘art, journalism, or literature’ even though of course it was important information as a component of working out the BBC’s budgetary and financial obligations.

Freedom of Information Act 2000 – s5 – New public bodies

The Government has announced its intention in the next Parliamentary session to add four new bodies to the list of designated public bodies governed by the Act’s information disclosure powers – these are: The Association of Chief Police Officers, the Financial Ombudsman Service, the Universities and Colleges Admissions Service (UCAS), and Academy Trusts

See: http://www.justice.gov.uk/news/newsrelease300310a.htm

Exemption from Freedom of Information of Act 2000 for communications by heir to throne.

In the Constitutional Governance Bill 2010 now winding its way through Parliament Schedule 15 provides for an exemption from the FOI for communications by the heir to the throne to Government; the current Prince of Wales takes a very active interest in current affairs – some critics argue too active an interest. The provision also applies to communications with other members of the Royal Family and the Royal Household

See: http://www.publications.parliament.uk/pa/ld200910/ldbills/040/10040.129-133.html#jRS01

Freedom of Information Act 2000 s41 – information given in confidence – The Higher Education Funding Council for England v The Information Commissioner & Guardian News and Media Ltd, EA/2009/0036, Information Tribunal, 18 January 2010

A major problem for many English universities is the upkeep and maintenance of their estate – often quite old and in many cases in some disrepair – in particular student halls of residence. A Guardian journalist sought documents from HEFCE in relation to the current state of repair or disrepair of the various university buildings in England. HEFCE refused, relying on s41 FOIA 2000, claiming that the information had been given to them by universities in the expectation that the information would remain confidential to HEFCE in reaching funding decisions and allocations. S41 states: Information provided in confidence.

(1) Information is exempt information if—
(a) it was obtained by the public authority from any other person (including another public authority), and
(b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.
(2) The duty to confirm or deny does not arise if, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) constitute an actionable breach of confidence.
The issue was whether HEFCE could demonstrate that disclosure would amount to an ‘actionable breach of confidence’. The Information Tribunal ruled, applying the common law principles laid down in Coco Engineering v Clark [1968] FSR 415, that the information had the necessary quality of confidence, had been imparted in circumstances giving rise to an obligation of confidence, and detriment had been demonstrated. However a public interest defence exists at common law and there was a public interest in having this type of information made public. If the state of disrepair of university buildings was the result of inadequate public funding then there was a legitimate scope for a properly informed public debate on the matter. Disclosure would be ordered.