PL&B FOI E-news, Issue 45

1. New guidance on information held on behalf of another

The ICO states that information public authorities hold on someone else’s behalf may still be held by them for the purposes of the FOIA.

Situations where public authorities hold information on behalf of other persons arise, for example, when universities hold information on behalf of individual students.

To determine whether the information is held by the public authority itself, or by the public authority solely on behalf of another, one needs to study the circumstances. Factors that would indicate that a public authority holds information solely on behalf of another person include:

  • The authority has no access to, use for, or interest in the information.
  • Access to the information is controlled by the other person.
  • The authority does not provide any direct assistance at its own discretion in creating, recording, filing or removing the information.
  • The authority is merely providing storage facilities, whether physical or electronic.

The guidance clarifies that if information is held solely on behalf of another public authority, section 45 of the Code of Practice requires organisations to:

  • transfer the request to that other authority, if this is what the requester wants; or,
  • inform the requester where to direct the request.

The guidance is published 1 June 2009.

2. Guidance on national security exemption

New advice from the ICO clarifies when FOI requests can be refused on the grounds of national security. The exemption (section 24) is based on the effect that disclosure would have, not on the content or source of the information.

The authority may obtain a certificate from a minister certifying that the exemption is required. However, the exemption is subject to a public interest test.

Information is not automatically exempt because it relates to national security matters, but disclosure must pose a real threat to the interests of national security.

The exemption in section 24 can only be claimed for information that is not exempt by virtue of section 23 - information which has been supplied by or relates to the security bodies. The ICO has also issued new guidance on section 23.

New guidance on section 24 is published on 1 June 2009.

New guidance on section 23 is published on 1 June 2009.

3. Publication of MPs expenses delayed

The official release of MPs’ expenses could be delayed until the last day of June, reports Times Online on 3 June.

Some MPs are still arguing with the Parliamentary Fees Office over what should be redacted, while MPs on the committee that oversees the running of Parliament are willing to publish expenses in a redacted form on the Internet.

According to Times Online, House of Commons officials say they will need another four weeks to meet lawyers’ demands before they are ready to publish the details.

Bob Castle, the Commons Data Protection and Freedom of Information Officer, has warned that Parliament could be sued if details that should have been kept private, such as credit card data, are released.

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

Copyright Privacy Laws & Business 2009