PL&B FOI E-news, Issue 33

1. Landmark FOI appeal case heard by Law Lords

A Scottish FOI case, which was discussed by the Law Lords on 1-2 April may have profound implications on whether FOI requests including personal data are regarded as purpose blind.

The case concerns a FOI request for the release of childhood leukaemia statistics. The Law Lords now recommend that the Scottish Information Commissioner returns to look at the data protection elements of the original FOI request, reports on 3 April. It was hoped that the case would provide clarity on the definition of personal data, which is central to both the DP Act and the FOIA. The Law Lords considered, however, that the Durant interpretation of personal data does not have to be reviewed. The Law Lords may suggest that it is justifiable to ask FOI requesters for the purpose for the request when it includes personal data.

The House of Lords Judicial Office states that the final judgement from the House of Lords is expected approximately within 6-8 sitting weeks of the hearing, which takes us to August 2008.

The Commissioner’s decision can be seen here

See the Court of Session Decision.

2. ICO serves practice recommendation on Department of Health

Having completed an audit of complaints concerning the Department of Health, the ICO has issued a practice recommendation that addresses the organisation’s FOI compliance.

The Department of Health was served a Decision Notice on 21 January 2008, which included several concerns about the organisation’s failure to disclose contract information. The current audit, which looked at the management of 40 FOI requests, suggests that the Department has failed to offer appropriate advice and assistance to applicants and to transfer requests appropriately. It had also delayed the internal review process beyond a reasonable timescale. At the time of issuing the practice recommendation on 31 March, the delay resulting from these extensions amounted to more than 90 working days.

The ICO lists many recommendations on how the organisation should improve its FOI compliance, for example, ensure that they have a central core of staff with particular expertise in Freedom of Information who can provide expert advice to other members of staff as needed. The Commissioner also points out that the department should review its complaints handling procedure, and ensure that consultation with third parties is carried out at the earliest opportunity.

A Practice Recommendation is not enforceable.

3. Office of Government Commerce case back to Tribunal

The High Court has overturned the Information Tribunal’s decision on whether ID cards Gateway Reviews by the Office of Government Commerce (OGC) should be published. The case has been sent back to the Information Tribunal, which will re-assess the case. The High Court ruling says that the Tribunal was mistaken in relying on the findings of a Parliamentary select committee on Work and Pensions, as this puts the Tribunal and the judiciary at risk of breaching Parliamentary privilege – courts are forbidden to pass judgments on Parliamentary decisions.

The ruling was taken on 11 April 2008. 

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