It is axiomatic that, under the Freedom of Information Act 2000 (FOIA), a requester is unlikely to know precisely what the information requested consists of. This means that a requester is at a (natural and fair) disadvantage if he or she wishes to challenge a refusal. How to argue, for instance, that the public interest favours disclosure of information, if you don’t know what the information is?
A requester will often be reliant, therefore, on the Information Commissioner (ICO), as independent regulator, or the judicial system, thoroughly to interrogate a public authority’s basis for non-disclosure.
Last year I made a FOIA request to the ICO’s office itself for copies of all Undertakings (not currently on their website) agreed by the ICO and data controllers following investigation of serious breaches of the Data Protection Act 1998.
The ICO kindly disclosed to me a large number of Undertakings, but withheld three, citing the exemption at section 22 of FOIA. This section provides an exemption to the general FOIA obligation to disclose information, if the information is held, at the time of the request, with a view to its publication at some future date (whether determined or not). Furthermore it must be reasonable in all the circumstances that the information should be withheld from disclosure until that future date. Section 22 is a qualified exemption, and, therefore, subject to the application of a public interest test. I was told by the ICO that the Undertakings
were not published at the time due to a risk of prejudice, in one case to a criminal trial and in the others to commercial interests. In light of your request we have revisited these considerations and find that they are still relevant
I’m a reasonable chap, and accepted that the ICO was well-placed to determine that the public interest did not favour disclosure. However, I thought they might be able to disclose the identities of the data controllers involved. So I made a FOIA request for that information.
This was also refused. I was told that one of the data controllers was News Group Newspapers and the Undertaking was
in connection with a cyber-security attack perpetrated against NGN for which criminal proceedings are ongoing. As we have previously indicated, the Undertaking will be published once the proceedings have been concluded
This was the case relating to a criminal trial, and it has now been published.
I was told though that the names of the other two data controllers were still exempt under section 22, as, even though the ICO accepted my argument
that prejudice is “unlikely to occur simply by disclosing the identity of the data controllers”, having consulted with the organisations involved, I am satisfied that there is a possibility that the release of even the identities could potentially damage the commercial interests of the Data Controllers
Well, after I waited a while, and then made a further FOI request, the names and Undertakings have now been disclosed. And I fail to see what the fuss was about: they related to some issues with residual data on legacy systems. I also fail completely to understand how, in any conceivable way, disclosure of the names of the Councils involved could have caused prejudice to their commercial interests, and I’d invite anyone else to explain to me how it could. If I am right, the argument that it was reasonable in all the circumstances that the information should be withheld from disclosure until a later date, and, indeed, the argument that the public interest favoured maintaining the section 22 exemption falls away.
I could, of course, have appealed at the time, but the point is that I did not know what information was being suppressed, or why. I trusted the ICO to apply the law properly.
It is interesting to consider this matter of “trust” in light of an important recent Upper Tribunal (UT) case. Although that case was concerned with the use of “closed material” and “closed proceedings” in FOIA cases in the First-tier Tribunal (FTT) some points are arguably of general application to public authorities. One strikes me in particular
The other side of the coin concerning the application of the FOIA exemptions is of course that the requester may want to challenge the reasons and evidence which are advanced to establish them and thereby show that the requested information should be provided to him or her pursuant to FOIA…This competing right and interest within the FOIA scheme is founded on the right of access to information held by public authorities that is given by FOIA. So it is one of the starting points for the need for a decision-making process to weigh competing rights and interests [emphasis added]
I would argue (knowing now what I didn’t know then) that as one of the prime reasons for DPA Undertakings is to draw attention to serious breaches of the DPA (see ICO Guidance: Communicating Enforcement Activities) withholding this information under section 22 potentially is seen to undermine the regulatory functions of the ICO. I struggle to understand how the refusal to disclose the Undertakings, let alone the mere identities of the recipients, shows proper weighing of competing rights and interests.
One a final note, the guidance above also says
We will not risk damage to the reputation of the ICO by agreeing with an organisation that we won’t publicise our action or that we will give advance warning
I’m not sure how to square that with what I was told last year that
the Undertakings were signed on the understanding that they would not be publicised in the usual manner