Category Archives: FOIA

November 27, 2024 · 5:57 am

Late (very late) reliance on exemptions, redux

[reposted from LinkedIn]

A Freedom of Information exemption may be relied upon “late” by a public authority (e.g. it can be claimed, after an initial refusal on other grounds, during an investigation by the Information Commissioner, or in the course of proceedings before the First-tier Tribunal). The jurisprudence on this is clear (Birkett v The Department for the Environment, Food and Rural Affairs [2011] EWCA Civ 1606, All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner & Ministry of Defence [2011] UKUT 153 (AAC), Information Commissioner v Malnick and the Advisory Committee on Business
Appointments [2018] UKUT 72 (AAC), McInerney v Information Commissioner and the Department for Education [2015] UKUT 0047 (AAC)).

But can a public authority, having received a preliminary decision from the FTT that an exemption is not engaged, and after the FTT has invited further submissions on the other exemptions said to be engaged, adduce new grounds for the rejection of the first exemption? Perhaps surprisingly, the FTT has answered “yes”.

In Finch v IC & HMT EA/2023/0303, the FTT had rejected HMT’s reliance on the section 12 costs exemption, in a preliminary decision of 12 January. HMT had argued that its IT supplier would charge more than £600 to retrieve the requested information from storage, and so the s12 exemption was engaged. However, the FTT held that no evidence was provided as to this, and so rejected the argument. As the ICO’s decision under appeal had only considered the s12 issue, the other exemptions said by HMT to be engaged (s40(2), s41, s43(2)) required further submissions from the parties, and so the FTT directed that these be provided and heard at a subsequent hearing.

HMT then submitted that it wished to rely on s12 on different grounds because a “new factual matrix” needed to be considered – in fact it did have access to repository of information, but the searches would take c.46.5 hours (and so exceed the s12 costs limits).

The FTT determined (Birkett, Malnick and – oddly – Browning v Information Commissioner [2013] UKUT 236 considered) that the broad case management powers under rule 5 of the Tribunal Rules allowed it to set its own procedure and that, accordingly, it would permit this “pivoted” reliance on new s12 grounds.

Those new grounds then prevailed, the s12 exemption applied (as would have, if necessary, the s40, 41, and 43 grounds) and the appeal failed.

Even though the ICO did not appear at the hearing, they did make submissions suggesting they opposed the late reliance. It will be interesting to see if they seek to appeal, as the idea that public authorities can as a general rule shift their grounds for relying on an exemption after it has been – in a preliminary decision – rejected, is not a particularly attractive one.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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October 20, 2024 · 10:02 am

The missing page about the missing PhD

[reposted from LinkedIn]

[EDIT: you win some, you get the wrong end of the stick on some. It was pointed out to me that the ICO removes items from its disclosure log after two years, which is why the document no longer shows up, and in the comments below I was taken to a copy of the document at WhatDoTheyKnow. Both these points have been confirmed to me in an FOI response from the ICO. What mislead me into thinking there was something more going on was probably the Tribunal’s reference to a “new policy”: it clearly wasn’t so much a policy, as a statement that the ICO would rely on s17(6) FOIA to refuse to reply to future requests, on the grounds that a vexatious campaign was being pursued.]

This is plain odd.

For several years the The London School of Economics and Political Science (LSE), and, consequently, the Information Commissioner’s Office has had to deal to with FOI requests about former Taiwanese president Tsai Ing-wen’s “missing PhD dissertation” (for some background, see here (I don’t vouch for its accuracy)).

A number of these requests have been refused on the grounds of vexatiousness, with many upheld on referral to the ICO.

The Information Tribunal has recently given judgment on one of these, and ruled in favour of the appellant, holding that the request was not vexatious. But what struck me was the fact that both the appellant and the ICO cited in evidence a page (a hosted pdf, going by the URL) on the ICO’s website. The judgment says this

The Appellant stated in his grounds of appeal that after he had complained to the Commissioner about the Authority’s response to the Request, the Commissioner published on the ICO’s website (by reference to a disclosure log) a new policy of not processing FOIA requests seeking information on President Tsai Ing-wen’s PhD.

But a footnote (screenshotted here) correctly notes that the link does not go to this page, and further, I can’t find any sign of it on the UK government web archive or the Wayback Machine. An advanced Google search on the ICO website throws no light.

So I’ve made an FOI request to the ICO, and will update when I get a response.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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October 15, 2024 · 5:41 am

Third party rights under FOIA

[reposted from LinkedIn]

In a Freedom of Information Act (FOIA) matter there are two parties with express rights and obligations – the requester and the public authority (PA) – with the potential for the regulator – the Information Commissioner’s Office – to become involved if there is a dispute.

But there is often a third party involved, and one who has no express rights under FOIA – the person to whom requested information relates. This can be a corporate, but sometimes it will be an individual (think, for example of MPs whose expense claims were sought from the Commons many years ago).

The code of practice issued by the Cabinet Office under section 45 of FOIA recommends as best practice that, where a PA receives a request for information where a third party’s interests are engaged, the third party should be consulted, and given the opportunity to make representations. But the Code is clear that those representations cannot bind the PA, and that the decision on disclosure is ultimately for the PA to make.

All of this should, of course, run its course within the 20 working days that FOIA allows for responding to a request. So quite how a request from 2019, to the Legal Services Agency (LSA) for Northern Ireland, regarding the grant of legal aid to a self-styled peace campaigner, has only just been determined in the High Court is a pressing question. Nonetheless, the judgment (though slightly odd) is worth reading.

The man in question, Raymond McCord, was invited to make representations on the request (made by a unionist MP), having been informed of the LSA’s intention to disclose. He brought immediate judicial review proceedings to prevent disclosure and the LSA undertook not to disclose until the ICO had given a view on the lawfulness of processing (I pause to note that the LSA’s suggestion that McCord had an alternative remedy by way of a complaint to the ICO after disclosure for a determination as to whether FOIA had been complied with was wrong in law, and flawed in logic).

The ICO gave an opinion in June 2020 that disclosure would likely be both unfair and unlawful, but stressed that the opinion “is in no way legally binding in this case, however, it should be of assistance to the court in making a final decision.”

No explanation is given in the judgment of why it then took over four years for the court to rule on the application. This is simply ridiculous.

Nevertheless, the court conducted a rather eccentric analysis of the authorities on disclosure of personal data under FOIA (and of various non-authoritative prior ICO decision notices) before determining, five whole years (rather than twenty working days) after the FOIA request, that the information should be disclosed, holding that “the applicant cannot complain of any breach of privacy in respect of his pursuit of high‑profile public interest litigation in circumstances where he himself has commented publicly on the issues”.

The judgment, ultimately, is rather unsatisfactory. The interim judgment (in 2020(!)) of Keegan J, which noted the undertaking by the LSA not to disclose pending the ICO’s ruling, discusses alternative remedies, and implies that McCord would have a right to appeal the ICO’s decision to the First tier Tribunal. However, this predates the Killock and Delo cases which make clear that there is no substantive data subject right of appeal from an ICO data protection decision through the tribunal system. In Killock the Upper Tribunal made clear that a substantive data subject challenge (rather than a procedural one) to the ICO should, indeed, be by way of judicial review proceedings.

And it remains the case that, if you are a third party who has an interest (maybe a profound interest) in information which a public authority is proposing to disclose, in response to a FOIA request, your rights are unclear and limited.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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September 26, 2024 · 6:12 am

Can a nullity be deemed a legal notice?

[reposted from LinkedIn]

I wrote recently about the fact that the Information Commissioner’s Office appeared to have served countless decision notices under section 50 of the Freedom of Information Act 2000 on the wrong legal person:

Someone recently made an FOI request to ask why the Commissioner had changed… terminology, because some decision notices are addressed to, say, the “University of Exeter”, while others are addressed to the “Governing Body of the University of Exeter”. The answer given by the Information Commissioner’s Office is that was not a change of approach, but, rather, that the examples of the former were “due to an error.”

Obviously I’ve not had any response to that from the ICO, and didn’t really expect one. But I do note a recent Information Tribunal case where the ICO argued that the Tribunal did not have jurisdiction to hear an appeal from a decision notice, because the ICO had discovered it had been served on the wrong body, and it was therefore a “nullity” – it wasn’t, and never had been a proper legal notice:

the IC submitted the DN was served upon [Harrogate Integrated Facilities Ltd] a trading name of [Harrogate Healthcare Facilities Management Ltd] and that [the latter] was the correct legal entity upon which the DN should have been served. As the DN was not served upon the correct public authority it should be deemed a nullity. An application was made to strike out the appeal under 8(2)(a) of the Rules due to lack of jurisdiction in relation to the proceedings.

Interestingly, although the Tribunal did not dispute the fact that the notice had been served on the wrong person, it skirted over (or, rather, avoided totally) the “nullity” submission. Instead, the Tribunal decided that it would itself “deem” the notice to have been served on Harrogate Healthcare Facilities Management Ltd (rather than on the wrong entity).

The Tribunal’s reasoning is sound on a common sense approach (they noted that if the proceedings were struck out the ICO would then just serve an identical notice on the correct body, and the whole process would need to restart, which would involve a disproportionate use of resources). However, it seems to me very dubious from a legal point of view, and there may be strong grounds to argue that its decision to treat what was argued to be a nullity as a decision notice for reasons of expediency (and not dealing with the nullity point) was ultra vires.

It will be interesting to see if the ICO appeal. Especially as if they do, it may open up a floodgate of other cases which – on their submission – might also be nullities.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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September 21, 2024 · 10:32 am

Exempt from FOI? Hoyle say it is

[reposted from LinkedIn]

Although the Information Commissioner’s Office is tasked with enforcing the Freedom of Information Act 2000, the Act contains some provisions which have the effect of ousting the ICO’s jurisdiction. A little-seen one appears in a recent decision notice about a request to the House of Commons for information and correspondence in relation to events at the controversial Opposition Day Debate on 21 February 2024. Much of the controversy turned on the actions of the Speaker of the House, Sir Lindsay Hoyle, who later apologised.

Section 34 of FOIA creates an absolute exemption (i.e. not subject to a public interest test) if the exemption is required for the purpose of avoiding an infringement of the privileges of either House of Parliament. But section 34(3) goes further, and says that

A certificate signed by the appropriate authority certifying that exemption…is, or at any time was, required for the purpose of avoiding an infringement of the privileges of either House of Parliament shall be conclusive evidence of that fact.

Such a certificate closes things down: it is not open to the ICO (or a court) to say “we disagree – the exemption is not required to avoid informing the privilege of House Houses”.

All very interesting, and the decision notice is still worth reading, to see how it all works.

But, who, you might ask, is the “appropriate authority” who signed this certificate?

Well, dear friends, section 34(4) FOIA says that, when the privilege of the Commons is at issue, the appropriate authority is the Speaker of the House – a certain Sir Lindsay Hoyle MP.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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September 4, 2024 · 7:57 am

Gender critical beliefs not relevant in determining whether FOI request was vexatious

[reposted from LinkedIn]

The holding and expression of gender critical beliefs was not valid evidence for LNER to take into account in determining that an FOI request was vexatious.

Can a public authority take into account a requester’s public comments elsewhere, when considering whether a request is vexatious under s14 of the Freedom of Information Act 2000, in circumstances where the comments are expressions of a belief, the holding of which is a protected characteristic under the Equality Act 2010? The answer, says the Information Commissioner’s Office, in a well-argued decision notice, is “no” – however much the authority might disagree with the expressions.

The request was to London North East Railway (a company wholly owned by the Department for Transport), and therefore a public authority for the purposes of FOIA), and was for information about the process and costs of decorating a train in Pride colours, the processes for selecting train designs more generally and about plans for future designs.

LNER refused the request as vexatious, and justified this to the ICO on grounds including the content of social media posts by the requester

have demonstrated views that indicate a bias against transgender individuals, [that complying could lead to] harmful discourse and cause distress to our transgender employees and the people that the Pride train represents [and that the requester’s] focused questions on binary sex divisions and the specific targeting of a Pride-themed train…indicates a shift toward a disruptive agenda rather than an informational one.

In response, the requester

accepted that she had a binary view of sex, but…that this was a protected belief [citing Forstater v CGD]

LNER had therefore, in her view,

unlawfully discriminated against her because it had refused to provide information, that she would otherwise have been entitled to receive, due to her beliefs.

The ICO ruled that LNER had been entitled to take “a holistic view of the request” and nothing in principle had prevented it taking account of social media posts. However

the question of vexatiousness does not turn on what the complainant’s beliefs are, or are not. Nor whether she is, or is not, entitled to those beliefs

The question was “whether the request had a serious purpose and value” – here, it did – and whether that was outweighed by factors pointing towards vexatiousness. The ICO found that it was not:

the complainant’s motivation may well have a grounding in her beliefs, but the public authority has not demonstrated that she has made the request just to be disruptive, or just to target individual. Nor has it demonstrated that it would be subject to an unjustified burden if it were to respond to the present request

The right to information under FOIA is a species of the Article 10 ECHR right to receive and impart information. This is an important decision by the ICO on the extent of the right.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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September 2, 2024 · 3:49 pm

Department for the Economy (Northern Ireland) v Information Commissioner and White (GIA/85/2021)

I wrote recently about the fact that a judgment in the Upper Tribunal, which the Information Commissioner cites in guidance, was not publicly available anywhere. The ICO had refused to disclose it in response to a Freedom of Information Act request and suggested the requester ask for a copy directly from the Tribunal.

I don’t know if the requester did, but I thought it would be helpful to do so, and upload it here. (Kudos to the Tribunal for the swift, helpful reply.)

I’m also going to contact Bailii, and see if they might host a copy as well.

GIA-85-2021.pdfDownload

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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August 31, 2024 · 7:41 am

JR judgment, and the lack of third party rights under FOIA

[reposted from LinkedIn]

The Freedom of Information Act 2000 (FOIA) confers rights on those requesting information, and obligations on public authorities (it also confers duties and powers on the Information Commissioner). What it does not do is confer any rights on someone whose information is held by a public authority and requested to be disclosed: if someone asks for that third party’s information and the public authority discloses, or is minded to disclose, the third party can do little or nothing to stop it.

That appears to be illustrated by a case in the High Court of Northern Ireland. I say “appears” because there doesn’t seem to be a judgment yet, and so I’ve had to piece together what seems to have been at issue.

FOIA requests were made by three unionist MPs to the Legal Services Agency (LSA) for funding for legal cases brought by victims’ campaigner Raymond McCord. It appears that the LSA proposed to disclose the information, and Mr McCord (because he has no rights as a third party under the FOIA regime itself) brought judicial review proceedings to prevent disclosure.

According to the media reports, those proceedings have failed, with the judge saying

There is a legitimate public interest in the openness and accountability of the LSA as a public authority responsible for the expenditure of substantial public funds…[Mr McCord’s] contention that he is a private individual sits uneasily with his own description as a ‘peace campaigner’ and his various interviews with the media, including when he challenged the public claims made by Mr Allister about the appropriateness of him being granted legal aid…Self-evidently, the applicant has injected himself into the public discourse on a number of high-profile cases which are of obvious and manifest interest to the public. This is particularly so in relation to Brexit litigation.

It also appears that at some stage the ICO was involved, and indicated its view that disclosure would “likely be unfair and unlawful”. I imagine that this was because Mr McCord made a data protection complaint. In any event, the ICO said that its view was not legally binding (an interesting side note: could the ICO have issued an enforcement notice under section 149 of the Data Protection Act 2018 to prevent a public authority releasing personal data under FOIA?)

This issue of “third party rights” (or lack thereof) under FOIA is a very interesting one. The section 45 Code recommends that public authorities consult with third parties where necessary, and have regard to their representations, but this still doesn’t confer a direct right.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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August 30, 2024 · 6:40 am

FOI performance data – and some suggestions

In the last couple of years the approach by the Information Commissioner’s Office (ICO) to Freedom of Information Act 2000 (FOIA) regulation and enforcement has greatly improved. Kudos to the Commissioner, John Edwards, Warren Seddon, Director of Freedom of Information and Transparency and all the other people who’ve contributed to the improvement.

But what the increased focus on public authorities’ performance is showing is how poor, in many cases, it is: in particular, many public authorities are failing – whether through lack of resource, or lack of concern (or a combination of both) – to comply with statutory and guideline timescales for compliance. It’s evident that more could (and should) be done.

Parts 8.5 and 8.6 of the 2018 Code of Practice, issued by the Cabinet Office under section 45 of FOIA, says that public authorities with over 100 Full Time Equivalent (FTE) employees should, as a matter of best practice, publish on a quarterly basis, details of their FOIA compliance. The information should include:

The number of requests received during the period;

The number of the received requests that have not yet been processed;

The number of the received requests that were processed in full (including numbers for those that were met within the statutory deadline, those where the deadline was extended and those where the processing took longer than the statutory deadline);

The number of requests where the information was granted in full;

The number of requests where the information was refused in full; The number of requests where the information was granted in part and refused in part;

The number of requests received that have been referred for internal review (this needs only reporting annually).

Such statistics were meant to extend to the wider the public sector the performance data reporting by central government.

However, six years on, in my experience and to my knowledge, very few public authorities who are meant to be doing this are in fact doing so – including, as far as I can ascertain, the ICO itself.

I have three suggestions.

  1. The ICO should start to compile and publish this information (if it doesn’t lead by example, it can hardly criticise other public authorities for failing to publish).
  2. The ICO should write an open letter to all public authorities with more than 100 FTE staff, asking them to write to the ICO advising whether they are complying with parts 8.5 and 8.6 of the Code, and if they are not, whether they are taking steps to. (I bear in mind that the ICO will not know which public authorities have not than 100 FTE staff, which is why it might need to be an open letter). In the event of future FOI complaints about performance, the ICO could then have regard to whether or not (or how) a public authority had responded to the open letter.
  3. If – as I suspect – there is, or comes to be, a widely held view that the requirements of parts 8.5 and 8.6 of the Code are too onerous for many public authorities, then consideration should be given by the Cabinet Office, in consultation with the ICO, to issuing a new/revised Code (section 45 empowers the Minister for the Cabinet office to issue, or revise, the Code “from time to time”).

It can be in no one’s interests – not public authorities’, not the ICO’s and not the public’s – to have a Code of recommended good practice which is simply ignored by many. If it’s ignored because its requirements, if followed would impose too great a burden, then get the thing changed. But – also – make sure that any revisions still address the need for better data on performance than currently exists.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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August 30, 2024 · 3:48 am

Pseudonymous FOI requests are not valid requests

[reposted from LinkedIn]

For a request for information under the Freedom of Information Act 2000 to be a valid one it must, under section 8, be in writing, describe the information requested and state “the name of the applicant” and an address for correspondence.

Does the name have to be the person’s real name?

“Yes”, says Judge Griffin (uncontroversially) when striking out an appeal to the First Tier Tribunal.

In the case, a person purporting to be “Simon Shannon” had made a (purported) request for information to the Civil Aviation Authority, which was partly refused, on the basis that the specific information was not held. “Simon Shannon” then made a (purported) complaint to the Information Commissioner’s Office who issued a (purported) decision notice upholding the refusal.

“Simon Shannon” then brought a (purported) appeal before the Tribunal. In his application he listed his address as “The Houses of Parliament”. This led the ICO to ask the Tribunal to direct that “Simon Shannon” give his real address. This then led to “Simon Shannon” applying to have the purported appeal struck out and for permission to lodge a new appeal in the name of Thomas Deacon – his real name.

The problem with this was, the judge pointed out, that as s8 FOIA requires that a request state “the” name of the applicant, rather than “a” name, this means that a pseudonym will not suffice, and a request made in the name of a pseudonym, as had been the case with “Simon Shannon”, was not a valid request. And there is a reason this matters:

“When an applicant uses a pseudonym to make a request to a public authority
that authority is deprived of the opportunity to consider whether those parts
of the Act [such as when considering whether requests are vexatious, or whether aggregated costs of two or more requests exceed the appropriate limit] to which the applicant’s identity is relevant apply to the request.”

It followed that, as the request was not a valid request, the ICO “unknown to him, had no power to consider a complaint under section 50 of the Act, nor to issue a decision notice”. And it further followed that the Tribunal had no jurisdiction – it could not simply permit the appeal to be remade in the person’s real name, because there was no ICO decision capable of being appealed.

None of this is especially new to FOI practitioners and lawyers, but the judgment is a clear and helpful explainer of the issues.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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