PL&B FOI E-news, Issue 46

1. Tribunal upholds ICO on withholding disciplinary details

This appeal concerns the question of whether the details of what could be called serious disciplinary actions taken against members of the judiciary should be disclosed under the Freedom of Information Act 2000 (FOIA).

The Information Commissioner had ruled that the s. 40 exemption on personal data applied. The Commissioner was also of the opinion that the public interest in maintaining that exemption outweighed the public interest related to the disclosure of the requested information.

The Tribunal found, however, that identification of the members of the judiciary who are disciplined and the reasons for that action would prejudice the administration of justice (s. 31(1)(c) FOIA). Also, disclosure would risk undermining a judge’s authority while carrying out his or her judicial function.

The Tribunal also considered that some of the information would amount to sensitive personal data, and judges had an expectation of this information remaining private. In addition, some of the information was already in the public domain.

The decision is available here. (Guardian News and Media Ltd v. IC; 10 June 2009).

2. ICO publishes report on ministerial veto

The Information Commissioner has submitted his report to Parliament regarding the Government veto on publishing meeting minutes about sending UK armed forced into Iraq (certificate issued by Rt Hon Jack Straw MP, Secretary of State for Justice, on 23 February 2009, overruling the Information Tribunal's decision of 27 January 2009).

The Commissioner, Richard Thomas, remains strongly of the view that the Government veto should be reserved for exceptional circumstances, but has been unable to challenge the Government’s decision.

The Commissioner received legal advised that concluded that the only possible route for challenging the certificate would be by way of an application for judicial review. However, in this case, a claim for judicial review would not have reasonable prospects of success.

The main potential grounds for a challenge would be that the accountable person (i) had no reasonable grounds for his opinion; (ii) failed to direct his mind to the question whether there was a breach of the duty to disclose under the Act; (iii) misinterpreted the Act; or (iv) departed without good reason from a general policy on how the veto would be exercised.

See the FOI certificate.

The ICO’s report was published on 10 June 2009.

3. New ICO strategy emphasises routine publication of documents and efficiency

The ICO’s priority for 2009/2009 is to continue to improve efficiency, so that all freedom of information complaints can be closed within an acceptable time.

The ICO expects that a full decision notice will be required in less than 15% of all cases. The ICO is committed to resolving as many cases as possible informally. Where formal Decision Notices are required, the ICO will increasingly refer to existing case law to keep them as short as possible.

The ICO also hopes to see a move towards a culture of routine, proactive and substantially increased transparency on the part of government and other public bodies. The ICO will monitor the adoption and operation of publication schemes across the public sector, using spot checks and taking enforcement action where necessary.

Highlighting ICO, tribunal and court decisions of particular significance, the office will undertake a structured annual programme for providing targeted advice and guidance.

The ICO will also continue to issue and publicise Practice Recommendations to authorities which demonstrate serious and/or persistent failure to comply with the Codes of Practice and will work with them to ensure that they implement the necessary changes to achieve compliance with the Code.

Publishing the new strategy on 11 June, the Information Commissioner Richard Thomas said: “I welcome indications from the Prime Minister that the FoI law will be extended. Open government is good government, but it is has to be properly paid for. Last year we closed 17% more cases, but – reflecting the growing popularity of FoI - we received 15% more complaints. My office is flat out, but too many cases still have to wait to get started. If the law is to be extended, that must be accompanied by adequate and secure funding.”

See ICO’s new FOI strategy was published on 11 June.

4. New study

A new report by the Constitution Unit, ‘Understanding the Formulation and Development of Government Policy in the Context of FOI’, examines the nature of policy and policy making within Whitehall and Westminster. The study is based on the experience of the authors and knowledge derived from other Constitution Unit projects, backed up by over 20 interviews with former Ministers and both former and current civil servants and advisers, together with background reading of the available literature. The report also contains a number of case studies to illustrate policy making in practice.

See the study, published on 10 June 2009.

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

Copyright Privacy Laws & Business 2009