[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.
informationrightsandwrongs 