The Information Commissioner’s Office (ICO) today issued a statement about the data protection implications of public authorities publishing the names of people who have made requests under the Freedom of Information Act 2000 (FOIA). It was issued to journalist Jules Mattsson (it may have been issued to others) and I credit him for pursuing it. It arose out of concerns expressed on Twitter yesterday that a council had uploaded a disclosure log in which the names of requesters were unredacted*.
it can be argued that someone seeking to exercise freedom of information rights should be willing for the fact they have requested such information to be in the public domain; we therefore recommend that where the information released from FOI requests is published in a disclosure log, the name of the requestor should be published alongside it
But this was rejected by the government in its response to the report (¶25)
The Government does not share the view that publishing the names of requesters in disclosure logs would be beneficial in terms of burdens. Such a move would have implications for the data protection of requesters..
Tim Turner blogged in his usual meticulous style on these data protection implications yesterday, and I am not going to rehearse the points he makes. Indeed, the ICO in its statement more or less agrees with Tim’s comments on fairness, and necessity, when it comes to the publication of requesters’ names
Individuals who make…requests must have their details handled fairly. Many people who have made a request would not expect to have their name linked to published details of the request they have made. If a public authority is considering publishing this information then they must consider why publishing the requester’s name is necessary/ While there is a need for authorities to be transparent about the [FOI] process, in most cases this would not extend to releasing people’s name simply to deter requesters
There then follow some (correct) observations that journalists and politicians might have different expectations, before the statement says
At the very least people should be told that their details will be published and given the opportunity to explain to the council why their name should not be disclosed. If having raised it with the authority a person is not happy with the way their details have been handled then we may be able to help
So what the ICO appears to be doing is agreeing that there are data protection implications, but, as long as authorities give requesters a privacy notice, announcing that they’re not going to do anything (unless people complain). It’s not often I take issue with the excellent Matt Burgess, who runs FOI Directory, but he claims that “the ICO has criticised the Council”. With respect, I don’t see any targeted criticism in the ICO’s statement, and I fear some public authorities will see it as a green light to publishing names.
As source does inform me that an ICO spokesman has said that they are going to be in touch with the council in question, to find out the full details. However, I wonder if the statement shows an approach more in line with the ICO’s new, largely reactive (as opposed to proactive), approach to data protection concerns (described on my blog by Dr David Erdos as having worrying implications for the rule of law), but I fear it risks the exposure of the personal data of large numbers of people exercising their right to information under a statutory scheme which, at heart, is meant to be applicant-blind. As the ICO implies, this could have the effect of deterring some requesters, and this would be, in the words of the always perceptive Rich Greenhill, a type of reverse chilling effect for FOIA.
*I’m not going to link to the information: I don’t think its publication is fair.
The Council appears to have taken the information down, with Jules Mattsson reporting on 3 July that they are reviewing the publication of requesters’ names.