PL&B FOI E-news, Issue 39

1. ICO’s new advice on how to stop vexatious requests

The ICO has updated its guidance on how to deal with vexatious FOI requests, and says it will uphold public authorities’ decisions to refuse requests where there is clear evidence that they are vexatious.

The Information Tribunal has backed the ICO’s rulings to uphold public authorities’ decisions in all ten appeal cases where a request has been turned down because it was deemed vexatious. The new guidance refers to these rulings when explaining how to judge whether a request is vexatious or not. If a request is vexatious, the public authority should issue a formal refusal notice.

2. Ofsted must release names of child care managers

The Information Commissioner’s Office (ICO) has ordered the Office for Standards in Education, Children's Services and Skills (Ofsted) to release the names of 29,970 child care managers and their relevant place of employment in England following a request under the Freedom of Information Act.

Ofsted had released the following data as a response to the FOI requests: the name of each day care centre, the address, postcode, telephone number, the number of child day care places, the type of care each setting provides, the number of places for each type of care provided and the name of the owner (the provider). However, it had withheld the names of managers saying that it would breach the Data Protection Act.

The ICO says in its decision that there is a legitimate public interest, especially for parents, to get access to names of child care managers. The ICO notes that the names are already often in the public domain as there are directories available on the day care centres, and many centres provide details of their staff on their own websites.

In addition, the information is held by Ofsted on a database from which the information can be downloaded. Ofsted initially denied holding information relevant to the request on the basis that collating the relevant material would constitute the creation of new information.

See the full decision notice of 1 December 2008.

3. Information Tribunal dismisses appeal regarding meta-request

The Information Tribunal has decided that the Information Commissioner (IC) was correct in finding that the public interest in maintaining the exemption in s.36 FOIA did not outweigh the public interest in disclosure of the information requested in a ‘meta-request’.

Mr Davis of John Connor Press Associates had asked for information relating to the way 48 of his previous requests had been handled at the Home Office and the Ministry of Justice. Mr Davis requested an internal review which upheld the refusal notice. The IC found that the public interest in favour of maintaining the exemption did not outweigh the public interest in disclosure and ordered the disclosure of the information. The Home Office appealed to the Tribunal and the MoJ joined as an appellant.

The appellants claimed that exemption should be maintained, as:

  1. there would be a chilling effect on the future conduct of those responsible for handling FOI requests;
  2. there was a resources issue;
  3. meta-requests circumvented other processes provided for under FOIA for dealing with such matters;
  4. the information contains little or no material of value;
  5. generally it is irresponsible to make meta-requests and they tend to serve private interests, and
  6. they are a backdoor method of trying to obtain disclosure of exempt information.

However, the Tribunal found that ‘meta-requests’ were not a special category of request under FOIA and that the IC did not err in law. The public interests in favour of maintaining the exemptions were largely of a general nature and that there was little evidence that they applied with any strength. The application of s.36 to a small part of the detailed information would need to be considered at a full hearing as insufficient evidence was available at the preliminary hearing.

The decision notice of 20 November 2008 is available.

4. FOI training to explain ICO and Tribunal decisions

The Campaign for Freedom of Information is running two half-day training courses on 'Information Commissioner & Tribunal Decisions' in London on 5 February 2009. The course, which is aimed at those with a good working knowledge of the legislation, highlights key developments in the way the main exemptions, the public interest test and the legislation's procedural requirements are being interpreted. Further details will be available from the Campaign's website shortly.

Please email for further information.

5. Is the Government recriminalising the leaking of official information?

Director of the Campaign for Freedom of Information, Maurice Frankel, wrote to The Times on 4 December pointing out that the Damian Green case raises the question of whether the offence of misconduct in public office is now being used as a way of recriminalising the leaking of official information.

Frankel wrote:
‘For many years any leak of official information on any subject — damaging or innocuous — was an offence under Section 2 of the 1911 Official Secrets Act. The 1989 Official Secrets Act changed this. It limited the offence to unauthorised and damaging disclosures relating to the work of the security and intelligence services, defence, international relations and law enforcement or to the obtaining of information under certain warrants, for example to intercept communications.

The 1988 White Paper that announced the reform made clear that disclosures that were merely “undesirable, a betrayal of trust or an embarrassment to the Government” would not be punishable by the criminal law. Introducing the new legislation Douglas Hurd, then the Conservative Home Secretary, explained that it “will remove the protection of the criminal law from the great bulk of sensitive and important information — including policy documents, Cabinet discussions on education, on health and on social security, and economic information and budget preparations. None of them will any longer have the protection of the criminal law.” Such disclosures might lead to disciplinary action — but not prosecution.

The disclosures that the Home Office civil servant are alleged to have made not only fall within the broad class of information deliberately removed from these criminal sanctions but in some cases are likely to be disclosable under the Freedom of Information Act. How has the clock been turned back to make such disclosures the subject of police investigations, arrests and possible prosecutions?'

For further details on the Privacy Laws & Business UK Newsletter, please click here.

Copyright Privacy Laws & Business 2009