Category Archives: Information Tribunal

November 29, 2025 · 6:41 am

NCND for personal data – a qualified exemption?

[reposted from my LinkedIn Account]

I’ve been known to criticise First-tier Tribunal (FTT) judgments in the freedom of information jurisdiction. By contrast, this one is superb.

In it, the FTT dismantle the argument (and the decision notice) of the Information Commissioner’s Office that Bolton NHS Foundation Trust were entitled to “neither confirm nor deny” (NCND) holding reviews, including a review by PWC, into the Trust’s governance and management. The PWC review was the subject of an article in the Health Service Journal, and the requester was the journalist, Lawrence Dunhill.

Firstly, the FTT noted that the ICO “case begins with an elementary error of fact. It treats the Trust as having given an NCND response to the entirety of the Request when it did no such thing” (the Trust had only applied NCND in respect of the request for a PWC report, but had confirmed it held other reviews). Oddly, the Trust, in its submissions for the appeal, simply ignored this error (the FTT chose not to speculate on “whether that omission was accidental or tactical”).

Secondly, and notably, the FTT found a fundamental error of law in the ICO’s approach (and, by implication, in its guidance) to NCND in the context of personal data. Section 2(3)(fa) of FOIA provides that section 40(2) is an absolute exemption (therefore not subject to a public interest test). But section 2(3) does not include section 40(5B) (the personal data NCND provision) in the list of absolute exemptions. As far as I know, the ICO has always taken the view, however, that it is an absolute exemption – certainly its current guidance says this).

That approach, held the FTT, is “simply wrong…the exemption under FOIA, s40(5B)(a)(i) is qualified and the public interest balancing test applies”. And but for that error, they said, the ICO might have reached a different conclusion.

As it was, the FTT held that the legitimate interests balancing test under Article 6(1)(f) of the UK GDPR was sufficient to determine the issue: merely confirming or denying whether the PWC review was held would not cause unwarranted prejudice to a named individual when balanced against the requester’s legitimate interests.

It will be interesting to see if the ICO appeal this. Given the strength of the criticism it would perhaps be bold to do so, but it might be that the only alternative will be to have to rewrite their guidance on s40(5), and rethink their long-held view on it.

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

Leave a comment

Filed under Data Protection, FOIA, Freedom of Information, Information Commissioner, Information Tribunal, judgments, NCND, UK GDPR

Tagged as , ,

October 12, 2025 · 9:50 am

Tribunal: unincorporated associations are not companies for the purposes of FOIA

The question of whether a body is a public authority for the purposes of the Freedom of Information Act 2000 (FOIA) is determined by asking (up to) three questions:

1: is it listed in Schedule 1 to FOIA?
2: has it been designated as a public authority by order by the Secretary of State or Minister for the Cabinet Office?
3: is it a company wholly owned by the wider public sector, or by the Crown (or by both of those)?

If the answer to all of those is “no”, then the body is not a public authority, and it is not obliged to comply with FOIA, no matter how much it might seem or look like a public authority.

These issues arose in a recent case in the First-tier Tribunal, following a decision by the Information Commissioner’s Office that the Conference of Colleges of the University of Oxford (the “Conference”) – an unincorporated association – was not a FOIA public authority.

It is accepted that the University of Oxford is a public authority, as is each of the colleges of the University (see paragraph 53 of Schedule 1 FOIA). The appeal to the Tribunal was based on argument by the appellant (“The Association Of Precarious Postdoctoral Researchers Ltd”) that the Conference, being a body created by the constituent colleges, met the definition of a “company” wholly owned by those colleges. Although FOIA does not define “company”, certain other legislative provisions do, including section 1121 of the Corporation Tax Act 2010, pursuant to which it is defined as meaning “any body corporate or unincorporated association…”.

That argument, however – held the Tribunal – actually counted against the appellant, because in the absence of clear legislative intent to broaden the term for the purposes of FOIA, it should take its ordinary English use: “unincorporated associations are not considered to be caught by the normal definition of a ‘company’ and…Parliament will make express provision to include them where it intends to do”.

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

Leave a comment

Filed under access to information, FOIA, Freedom of Information, Information Commissioner, Information Tribunal

Tagged as , ,

June 6, 2025 · 8:44 am

Hinkley Point C construction company is a public authority under the EIR

The Information Tribunal has ruled that the Nuclear New Build Generation Company, a subsidiary of EDF Energy, created to construct s new nuclear power plant at Hinkley Point C (HPC), is a public authority for the purposes of the Environmental Information Regulations 2004 (EIR)

In the last fifteen years or so, a very interesting body of case law has been built up regarding the extent to which certain private persons have accrued, or have been conferred upon them, the status of a public authority for the purposes of the EIR. Some of the bodies who have been held to be public authorities (at least in a limited EIR sense) are water companies, BT, public gas transporters, and port authorities. Some which have not been held to be include Heathrow Airport and housing associations.

The EIR create a scheme for public access to environmental information held by public authorities, which runs in parallel to the scheme under the Freedom of Information Act 2000 (FOIA). Where FOIA, though, specifically designates public authorities, the EIR (which implemented an EU Directive, emanating in turn from the 1998 UNECE Aarhus Convention) define a public authority by virtue of its actions and powers.

Whether a person is a public authority will often turn on whether it “carries out functions of public administration”. The tests for this derive from the “Fish Legal ” in the CJEU: whether they are “entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, and…are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law”

In NNB Generation Company (HPC) Ltd v Information Commissioner & Anor [2025] UKFTT 634 (GRC), the Tribunal, considering an appeal by HPC from a decision by the Information Commissioner’s Office that it was an EIR public authority (and in which Fish Legal were again the applicant), held that the relevant Development Consent Order, and the electricity and nuclear licences granted to HPC constituted entrustment with the performance of public services in relation to the environment, and the powers accruing from that entrustment “go far beyond what a private person without the benefit of such powers would be able to do in those circumstances, for example in empowering HPC to make byelaws, even if it opts not to do so”.

Decisions of this sort are nuanced and complex, and for that reason, often amenable to appeal. I would not be surprised if this one goes to the Upper Tribunal.

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

Leave a comment

Filed under access to information, Environmental Information Regulations, FOIA, Information Commissioner, Information Tribunal, judgments

Tagged as

May 7, 2025 · 7:17 am

FOIA contempt proceedings against University of Exeter

Non-compliance by a public authority with the provisions of the Freedom of Information Act 2000 is rarely a particularly serious matter for the public authority: a delay in responding, or a failure to disclose what should be disclosed, or wrong reliance on exemptions will at most normally only result in a public decision notice by the Information Commissioner’s Office (ICO), and there are hundreds of those issued each year, which pass with barely any attention.

Where it can get serious is where the public authority fails to comply with an order by the ICO, or where, upon a case having been appealed to the First-tier Tribunal (FTT), the FTT has made an order for disclosure. Sections 54 and 61, respectively, of FOIA, empower the ICO and the FTT to treat the failure to comply as offence of contempt of court, and certify the offence to the Upper Tribunal, which has the power to commit for contempt. In principle, as I understand it, the Upper Tribunal could, if it agreed there was a contempt, impose a period of imprisonment or a fine (the powers here are not contained in the Upper Tribunal Rules, but in YSA (Committal for contempt by media) [2023] UKUT 00075 (IAC), the Upper Tribunal (in a non-FOIA case) said that as the Upper Tribunal Rules do not expressly deal with contempt certifications, then the Upper Tribunal should, so far as it can, adopt the contempt provisions of part 81 of the Civil Procedure Rules.

I’m not aware of any FOIA case where the Upper Tribunal (or the High Court, which had the jurisdiction until the Data Protection Act 2018 amended FOIA and conferred jurisdiction on the Upper Tribunal) has actually made a contempt committal. But the latest case to make its way to the Upper Tribunal, to consider whether to do so, involves the University of Exeter. The University was asked under FOIA for the names of attendees, and the organisations they represented, at two University groups – the Exeter Community Panel and the Resident Liaison Group. The University refused, citing data protection concerns (and relying on the exemption at section 40(2) FOIA), and the ICO agreed. However, the FTT disagreed (these were public facing groups and attendees would have had no reasonable expectation that their names would be kept private) and ordered disclosure. This, however, the University did not do, and upon being chased by the applicant, indicated that at least some of the information no longer existed, because of (undocumented) oral right to be forgotten requests made by attendees after the FTT had ordered disclosure (which raised s77 FOIA questions). As the FTT pointed out, the University had supplied the withheld information to the ICO and to the FTT itself for the purposes of the original proceedings, and it was “less than credible that the Respondent cannot recover that information and provide it to the Applicant”.

The FTT was satisfied therefore, that this was a “wilful”, “flagrant” and continuing failure to comply with its order – “a contrived and persistent failure that is still ongoing”.

The FTT nonetheless still urged the University to fully comply with the order, as doing say “may mitigate any action taken by the Upper Tribunal”.

Compliance with FOIA is not voluntary for a public authority. Still less so is compliance with orders of a court.

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

Leave a comment

Filed under contempt, FOIA, Freedom of Information, Information Tribunal, Upper Tribunal

Tagged as

April 17, 2025 · 7:17 am

FOIA s11 – All or nothing or a sliding scale?

When a public authority receives a request for information it must, under the Freedom of Information Act 2000, determine and communicate whether the information is held (subject to any exemption which removes the obligation to confirm or deny whether it is held), and then determine whether any exemptions to disclosure apply. These latter exemptions include the procedural ones at ss12 and 14 of FOIA (costs grounds and vexatiousness or repeatedness) and the substantive ones at Part II (ss21 to 44). It is only then that, if the requester has requested the information in a specific format (such as a specific software format) the public authority must, under s11, consider whether it must “so far as reasonably practicable” give effect to that preference.

That this is the correct order of things is confirmed by an important (albeit quite niche) judgment of the Upper Tribunal, in Walawalker v The Information Commissioner & Anor [2023] UKFTT 1084 (GRC). Both the ICO, and the First Tier Tribunal, had elided/confused the staged process above, with the result that the appeal before the Upper Tribunal was on the meaning of s11, despite prior findings not having been fully made on the application of exemptions.

Nonetheless, what the Upper Tribunal had to decide was, where (for instance as was the case here) a request was for transcripts of a 50-odd audio recordings of distress calls at sea, and the act of transcribing them would be very resource-heavy, did the obligation to give effect to the preference for transcripts “so far as reasonably practicable” impose an “all or nothing” or a “sliding scale duty”? In this example, did the Maritime and Coast Agency have to transcribe as many of the calls as it could before it became no longer reasonably practicable, or did the exercise as a whole constitute something that was not reasonably practicable?

It was the latter, said the judge: s11 applies to “the information” requested (what the ICO in its submissions, described as being a “unitary concept” – and the judge said this was a “helpful perspective”) not a subset of extract of the information. What Mr Walaker had requested was “all calls”, and it was that “unitary concept” which as at issue in the s11 analysis. It was not reasonably practicable to transcribe all calls, and so the s11 duty did not apply.

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

Leave a comment

Filed under Freedom of Information, Information Commissioner, Information Tribunal, judgments, Section 11, UK GDPR

Tagged as ,

March 13, 2025 · 6:32 am

Cabinet Office unsuccessfully appeals FOIA information notices

When a public authority relies on an exemption to refuse to disclose information in response to a Freedom of Information Act request, the requester can ask the Information Commissioner’s Office for a decision as to whether the refusal was in accordance with the law. In order to make such a decision, the ICO may often need to see the information withheld by the public authority. Where the public authority is unwilling to provide this, or perhaps drags its heels over it, the ICO may serve, under section 51 of FOIA, an “information notice”, requiring the information to be provided. Failure to comply with an Information Notice can be certified as contempt of court, but there is a right of appeal to the First-tier Tribunal.

And so it was that the Tribunal recently found itself hearing appeals by the Cabinet Office in relation to two Information Notices served on it by the ICO, who is investigating whether FOIA requests for information relating to Rishi Sunak’s declarations of interest when he was Prime Minister.

The Cabinet Office sought to argue, among other things, that access by the ICO was not necessary, was unfair and damaging to the process of handling ministerial declarations of interest, and would constitute unlawful processing of personal data. All of these arguments got short shrift from the Tribunal – ultimately, it held that it would not be possible to determine whether any of the exemptions prayed in aid by the Cabinet Office were made out without an examination of the material, and the appeals were dismissed.

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.

Leave a comment

Filed under access to information, Cabinet Office, Freedom of Information, Information Commissioner, information notice, Information Tribunal, judgments

Tagged as ,

March 12, 2025 · 4:50 am

Cabinet Office wins Covid face masks FOIA appeal

The Information Tribunal has overturned a decision of the Information Commissioner’s Office and ruled that the Cabinet Office is not required to disclose minutes of meetings in June and July 2020 at which policy decisions were taken to make mandatory the wearing of face masks in shops and on public transport.

It is a shame that, for a decision of some import, the judgment reads like a stream-of-consciousness draft, and that it is infused with unnecessary sarcasm at various points.

The ICO had determined that although the exemption at s35 FOIA (for information relating to the formulation of government policy) was engaged. He acknowledged the importance of a protected space for government decision-making, and of the principle of collective responsibility, but decided that the “exceptionally weighty” public interest favoured disclosure.

The Tribunal, however, via reasoning which is – frankly – very difficult to follow, appears to have focused on the issue of “accountability”, something that the requester had mentioned rather in passing in support of his request, but which was not a matter expressly mentioned in the ICO’s decision. Having fixed on this concept, the Tribunal appears to have decided that as those in government at the time have since been held accountable in various ways, there was diminished public interest in achieving accountability by way of disclosure of the requested information. The key passage is probably this (at 57):

In considering the context of this request there is a stark contrast between the salience and effectiveness of other multiple forms of accountability…and the value of the information sought – in contrast with the risk of harm to the functioning of government caused by its release disproportionate to any benefit.

I do not say the Tribunal has necessarily got this wrong, but I do say that this a FOIA case of some significance, and that it warranted a clearer judgment.

Whether the judgment is amenable to an appeal is not entirely clear, but it’s worth pointing out that the original requester was not a party to, and was not joined to, these proceedings, and so I do not believe he himself has a right of appeal to the Upper Tribunal, and one wonders whether the ICO will have the enthusiasm to do so, given the costs involved.

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.

Leave a comment

Filed under Cabinet Office, FOIA, Freedom of Information, Information Commissioner, Information Tribunal, judgments

Tagged as , ,

February 19, 2025 · 1:03 pm

FOI doesn’t need a “purpose”

[reposted from my LinkedIn account]

At the close of an otherwise unobjectionable and unsurprising refusal of a Freedom of Information Act 2000 appeal (on the issue of a vexatious request), the Information Tribunal judge says this:

“FOIA exists to safeguard freedom of information. It was not enacted to serve as a tool for furthering personal campaigns and causes, however heartfelt they may be.”

When Parliament enacted FOIA it expressly declined to insert a “purpose clause”. As its explanatory notes say “A request for information can be made by any individual or body, regardless of the purpose of the application.” So if someone wants to use FOIA as a tool for furthering personal campaigns and causes, then (as long as their requests are not, as they were here, vexatious) they jolly well can. And judges should respect this.

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.

Leave a comment

Filed under access to information, FOIA, Freedom of Information, Information Tribunal, judgments, Uncategorized

Tagged as

February 19, 2025 · 9:41 am

The state of central government transparency

[reposted from my LinkedIn account]

This is one of the most extraordinary FOIA judgments I’ve ever seen, and it says an awful lot about the approach to transparency at the centre of the civil service.

The Cabinet Office have been trying to resist disclosure under FOIA of copies of blank ministerial declaration of interest forms, on grounds that to do so would be prejudicial to the conduct of public affairs, because among other things [checks notes] “Disclosure may lead to speculative scrutiny regarding why certain elements are included in the forms, potentially leading to amendments to the form which undermines its effectiveness”.

But there’s also an extraordinary citation of a piece of evidence given by a Cabinet Office witness – the “Director of Propriety and Ethics” – to the effect that the system for Minister declaring interests relies heavily on the trust and candour of Ministers, and the effect of disclosure would be that they “may be reluctant to provide the same level of detail” than they do currently.

Let’s just think about that. Ministers have a constitutional and ethical duty to declare interests, but this relies on trust and candour, and disclosure of a blank declaration form might mean that those we trust to be candid in their ethical duty to declare those interests might decide to be less trustworthy and candid as a result? What a sorry state of affairs.

Fortunately, the Information Tribunal, like the Information Commissioner’s Office before, had no truck with these arguments, and refused the Cabinet Office’s appeal.

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.

Leave a comment

Filed under access to information, Cabinet Office, FOIA, Freedom of Information, Information Commissioner, Information Tribunal, judgments

Tagged as ,

February 5, 2025 · 8:04 am

Is information held by external solicitors “held” for the purposes of FOIA?

[reposted from my LinkedIn account]

Where an external solicitor’s firm holds information in relation to advice given by the solicitor on instructions by a public authority client, is the information held by the solicitor “on behalf of” the public authority, for the purposes of section 3(2)(b) of the Freedom of Information Act 2000?

While the matter is live, the answer is probably “yes”, but what if the public authority client has long since destroyed its own records, but the solicitor’s firm has retained its records for its own regulatory or risk purposes? Here, the answer is probably “no”.

And that is the situation which came before the Information Tribunal recently. The requester was seeking information from Sheffield City Council about a development scheme from 2007/2008. The Council had said that it would have destroyed its own records, and said that to determine whether the information was held would necessitate the inspection of 28 box files held by law firm Herbert Smith Freehills, who had been instructed by the Council at the relevant time. To even determine whether the information was held or not would exceed the costs limits in section 12 of FOIA. The ICO, in the decision notice being appealed, had agreed.

As I was reading the first few paragraphs of the Tribunal judgment, I said to myself “hang on – is this info being held by HSF on behalf of the Council, or is it being held for HSF’s purposes?” I was limbering up my fingers to write a post criticising everyone for not spotting this, so I was then pleased to see that the Tribunal, of its own volition, identified it as an issue and sought submissions from the ICO and the Council on it.

After some back and fro (it is not entirely clear from the judgment who said what in their submissions, and there was a side issue as to whether in fact the Environmental Information Regulations applied) the evidence was pretty clear that the Council had had no intention to retain the information, nor to entrust it to HSF. Accordingly, the information was not “held” for the purposes of FOIA.

I’m not sure I understand why the Tribunal did not substitute a different decision notice to reflect this (it simply dismissed the requester’s appeal), but ultimately nothing really turns on that.

What one can take from this is that solicitors and their clients (especially public authority clients) should, jointly and separately, make clear in agreements and policies what the status is of information retained by solicitors after an instruction has ceased, and how requests for such information should be dealt with.

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.

Leave a comment

Filed under access to information, Environmental Information Regulations, Freedom of Information, Information Commissioner, Information Tribunal, judgments

Tagged as , ,