UK Freedom of Information E-news - December 2010
- FOIA developments expected soon
- BBC ordered to release information about its contractor
- Tribunal decides to protect name data of police who might be harassed
- ICO: universities’ research data is not exempt
Revision of the FOI Act may mean dropping the ministerial veto and the exemption on Cabinet minutes, according to Information Commissioner Christopher Graham. Speaking at the Data Protection Forum meeting on 7 December, Graham said that the Act is likely to be extended to cover newly created public authorities and privatised organisations. It has already been confirmed that the FOI Act will apply to schools converting to academies from September 2010 and to existing academies from January 2011.
The ICO will step up a gear in its FOI enforcement now that the Act has been in place for 10 years. “Under FOI 2.0 we need to make sure that everyone delivers requested information promptly and gets it right the first time”, Graham said. The ICO will put greater emphasis on proactive disclosure and will use its internal intelligence to identify organisations that are not fully complying with the Act.
The Information Commissioner’s Office (ICO) has, on 7 December, ordered the disclosure of information relating to TV licensing contracts between the British Broadcasting Corporation (BBC) and Capita Business Services Ltd (Capita).
The BBC originally rejected the request for information on any incentives that the BBC offered relying on the exemption for commercial interests. The Commissioner concluded that while the exemption could be applied, in this case the public interest in disclosing the information prevailed. A full disclosure has been ordered.
The Commissioner says that Capita is ‘in a commercially superior position as the existing contractor in possession of full knowledge of the BBC’s previous concessions, incentivising tactics and the bespoke elements of the contract. In the Commissioner’s view there is a public interest in disclosing the material regarding incentives as this may in fact have the effect of improving the competitiveness of the bids. In reaching this view, the Commissioner has again taken into account the fact that the BBC is in a strong position to push bidders for a good deal given the value and profile of the contract in question.’
Head of Policy Delivery, Steve Wood said:
“It is our view that the corporation [BBC] must be open to public scrutiny in order to show the many people who regularly watch their programmes, listen to their radio stations and use their website that they continue to provide value for money.”
In this case, the ICO took the decision back in July not to order disclosure of police officers’ names as revealing who had attended pre-hunt meetings might lead to the harassment of the officers identified.
The request, which was made to Hampshire Police, was about whether the provisions of the Hunting Act 2004 were being complied with in the Isle of Wight and how these provisions were being enforced by the Hampshire Police.
The ICO said that the names of officers attending the meeting would be personal data and the disclosure would result in a breach of the principle of processing data fairly and lawfully.
The Tribunal upheld the ICO’s decision.
The decision was issued on 6 December.
The ICO and the Higher Education (HE) sector met on 29 September to look at the difficulties universities face in complying with the FOIA.
The meeting focused on issues of research data, teaching materials, intellectual property rights, commercial interest and proactive dissemination. The HE sector was concerned about some particular cases: the “climate e‐mails” case from the University of East Anglia (UEA); a decision with regards to releasing teaching materials from a BSc Homeopathy course from the University of Central Lancashire; and a decision with regards to releasing a longitudinal set of tree ring data from the Queen’s University Belfast (QUB).
Universities find it difficult to allow access to research data. The ICO clarified that currently there is no definition of ‘research data’ in the law, and any information held by a university is subject to the Freedom of Information Act/Environmental Information Regulations. Therefore, any change to the existing situation would require a change to the primary legislation.
The ICO said that commercial interest or competitive environment alone is not enough to warrant exemptions from release of information such as teaching materials. The ICO stressed that decisions are made on a case‐by‐case basis, and universities must demonstrate the reality of potential commercial harm to them in each case by release of such information. The ICO urged public authorities to consider carefully the specifics of each case, rather than trying to construct a case to reject a request based on general principles or assertions.
The ICO also said that universities should deploy their strongest and best arguments at the earliest possible stage in the process, and respond in time.
On using exemptions, the ICO said that In some instances it is possible to use s. 36 of FOIA (“prejudice to the effective conduct of public affairs”) to avoid release of information pertinent to live and sensitive management discussions.
It was agreed to establish a working group representing the HE sector to work with the ICO in developing sector‐led and sector‐specific guidelines around the issues of research data, teaching materials and IPR.
For further details on the Privacy Laws & Business UK Newsletter, please click here.
Copyright Privacy Laws & Business 2010