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Freedom of Information Act Update

Freedom of Information Act Update. 15 th November 2006 Damien Welfare, 2-3 GIS. Re-cap from last update. s16 : duty to assist to avoid cost limit; IC can be expected always to consider s 16 Cost limits : may include new software

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Freedom of Information Act Update

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  1. Freedom of Information Act Update 15th November 2006 Damien Welfare, 2-3 GIS

  2. Re-cap from last update • s16: duty to assist to avoid cost limit; IC can be expected always to consider s 16 • Cost limits: may include new software • Prejudice: bar rising on “likely”, after Connor, unless Derry appeal affects; test of “may very well” • Vexatious: robust decision (B’ham) & guidance

  3. Re-cap (cont) • Ss 35 & 36: Public Interest Test leaning to disclosure • Deleted data: attempt to restore if recycled/backed-up • EIR charges for copies similar to FOI (Markinson case)

  4. Cost limits – present position • Duty to respond only where cost is up to £450 • Cost covers: determining, locating, retrieving, extracting info, at £25 ph (c 18 hrs’ work) • May charge formatting/copying/postage only where cost of reply is below limit. • Above £450 limit, discretionary whether to reply, and may charge full cost

  5. Costs - possible changes • Outline proposals to revise Regulations on cost limits (Oct 06) - costs taken into account (add reading, consideration and consultation time) - aggregation of requests by any legal person (over what period?)

  6. Legal professional privilege • Dept of Environment (NI), FS50091688 • National Assembly for Wales, FS5083791 • Bellamy v IC EA/2005/0023: “strong element of public interest inbuilt... at least equally strong countervailing considerations [needed] to override” • Kirkcaldie v IC (Tribunal), [EIR exemption], EA/2006/001 (“Thanet case”)

  7. EIR/FOI boundary • Thanet case: IT held Commissioner wrong to treat case concerning night-flying as FOI, rather than EIR • “The Boundaries between EIR and FOI”, case examples, published on DEFRA website.

  8. Vauxhall Tower case • DCLG, 13th June 2006, FER 0086629 • 1. Trend to treat land use planning as EIR • 2. Develops s 35, FOIA. Public interest likely to favour disclosing most of submissions to Ministers • (i)Factual background; (ii) matters framing decision = disclosable • (iii) Advice as to option to pursue = withheld

  9. Case Round-up 1 • Environmental Resources Ltd – FER 0099259, 7/6/06 – consultancy was public authority under EIR • Pembrokeshire CC – FS500676633, 6/6/06 – tender documents not confidential information (s 41)

  10. Case round-up 2 • Denbighshire CC – FS50068239, 27/7/06 – s40 and s 36 upheld over unexpected retirement of Director of Lifelong Learning • Plymouth CC – FS50082251 (and 2 others), 23/8/06 – report into agencies’ performance following death of child from neglect not disclosable under s 36

  11. Case round-up 3 • Exeter CC – FS 50080412 – 7/8/06 – terms of land sale to Fire Service. No prejudice, or PIT favoured disclosure • Wolverhampton – FS50065853, 28/9/06 – exemption of info re pension fund investments under ss 41, 43 not upheld

  12. Case round-up 4 • DCLG – FER0087051 – 28/9/06 – recommendations of GO to ODPM re 2 planning call-in cases. PIT favoured disclosure (cf DCLG case above)

  13. Conclusions and questions • IC backlog of cases diminishing • Strong support for legal prof privilege • Personal data exemptions regularly upheld • Commercial prejudice less regularly upheld • S 36, s 35, internal communications (EIR): PIT leans to disclosure (not Plymouth case) • EIR cases increasingly significant

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