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Course focus

Data Protection and Freedom of Information Basic Survival Guide

Date:
08 October 2008
Venue:
Hunton & Williams, London
CPD:
5.0

News & events

INFORMATION OVERLOAD

It may only have been with us a few years but the Freedom of Information Act has resulted in an increased interest in, and scrutiny of, public sector activities, policies and expenditure. Jane Oldham of 11 KBW provides an update.

The rapidly acquired knowledge that anyone can now request information from public bodies on a whole range of actions and issues has led to what has quickly become a time-consuming and costly business.  In the past six months there have been several cases of interest to local authorities – a number of which fall in to that later category, as 11KBW’s Jane Oldham explains.

  1. There have been several cases in the last six months of interest to local authorities, decided by the Information Tribunal under the Freedom of Information Act [ìFOIAî]  and the Environmental Information Regulations [ìEIRî]. Vexatious requests
  2. In Hossack v IC and Department for Work and Pensions EA/2007/ 0024 the Tribunal considered vexatious requests, stating that there is no reason to restrict consideration of a request to what appears on its face, but that context and history are important.  This can include the effect on the recipient, and further pointers would include:  seeking by the request information which the applicant clearly already possessed and
    which had previously been debated with the public authority; tendentious language  showing that the applicantís purpose was really to argue and even harangue; and the background history of dispute, previously debated, between the applicant and the public authority.
  3. In Fowler v Commissioner and Brighton and Hove Council EA/2006/0071 the Tribunal adopted a similar approach in relation to regulation 16 of the EIR (ìmanifestly unreasonable request).
  4. This contrasts with the normal position which is that the applicantís motive in seeking the information is irrelevant to the way in which a public authority is required to deal  with the request. The normal approach (i.e. to non-vexatious requests) was considered  further in Berend v Commissioner (EA/2006/0049 and 0050) in which the Tribunal  stated that an information request is to be read objectively and public authorities are not expected to go behind the phrasing of the request. The Codes of Practice warn against consideration of the motive or interest in the information when providing advice and assistance. How extensive should the search for information be?
  5. In Babar v Commissioner EA/2006/0092 the Tribunal concluded that the search  should be: ìa reasonable one. There may be circumstances which indicate a significant  chance of information being in existence, which will be relevant to the  reasonableness of any searches undertaken. What if disclosure might interfere with someoneís Article 8 ECHR rights?
  6. In Bluck v (1) Information Commissioner (2) Epsom & St Helier University NHS Trust EA/2006/0090 the Tribunal stated that even if disclosure of information would  interfere with Article 8 rights (whether or not justified under Article 8(2)), it did not  regard the terms of Article 8 as a directly enforceable legal prohibition for the  purposes of section 44 of the Act.
  7. ASBOs In London Borough of Camden v IC EA 2007/0021 the Tribunal considered a request for the names of all persons subject to ASBOs (current or expired) in the local authority’s area. It found that publicity long after the making of an ASBO, was quite different from identification and denunciation at the time of the order, and could be seen as an unjustified humiliation taking no account of any improvements in behaviour following the making of the order. Therefore processing such personal data, long after the making of the relevant ASBO, would be unfair and in breach of the Data Protection principles.
  8. Interaction between FOIA and EIR The interaction between FOIA and the EIR ñ often relevant to local authorities in planning and waste contexts ñ has been considered in Rhondda Cynon Taff Council v Commissioner and Baker v Commissioner and DCLG EA/2006/0043.
  9. In Rhondda, the Tribunal held that the FOIA and EIR run in parallel and are not mutually exclusive. The section 1(1)(b) FOIA right is to have information communicated to him, but under the EIR it is to have information made available  on request which may not mean physically providing it. If the applicant is dissatisfied with inspection and wants the information provided to him, the public authority must go on to consider the application of FOIA to the request, because there is nothing in either FOIA or the EIR which says the applicant must select to use one regime or the other.
  10. In Baker the Tribunal warned against applying principles developed in respect of section 35 FOIA to the different language of regulation 12 EIR. The same caution is needed in the several instances in which the wording of FOIA exemptions differs  from the wording of the analagous EIR exceptions.

JANE OLDHAM
11 KBW
April 2008

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