Tag Archives: ICO

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.

Leave a comment

Filed under access to information, Equality Act, FOIA, Freedom of Information, human rights, Information Commissioner

Tagged as , ,

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.

Leave a comment

Filed under access to information, Environmental Information Regulations, FOIA, Freedom of Information, Information Commissioner, Open Justice, Upper Tribunal

Tagged as , ,

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.

2 Comments

Filed under Cabinet Office, FOIA, Freedom of Information, Information Commissioner, section 45 code

Tagged as ,

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.

Leave a comment

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

Tagged as , ,

August 26, 2024 · 8:00 am

Closed justice and the EIR

[reposted from LinkedIn]

The Upper Tribunal is an appellate court: its judgments create precedent, under the doctrine of stare decisis. For that reason, one might think that all of its judgments would be published – particularly ones that are cited by a regulator in its guidance. But that’s not the case.

The Information Commissioner’s Office (ICO) refers to an Upper Tribunal judgment – Department for the Economy (Northern Ireland) v Information Commissioner and White (GIA/85/2021) – in its guidance on the Environmental Information Regulations, but the judgment has never been openly published online (it’s possible one of the various paid-for online legal libraries has it – I haven’t checked).

The lack of easy access to judgments and other court documents in general (not just those in the Upper Tribunal) is one that has understandably exercised people for a number of years. Things have got much better in recent years, and the work of BAILII (British and Irish Legal Information Institute) and of people like Lucy Reed KC, Judith Townend and Paul Magrath at The Transparency Project has been key in advancing this core constituent of the principle of open justice. But there are still huge amounts of case law which are not readily available to the public.

For this reason I was struck by the ICO’s response to an FOI request for a copy of the judgment that they rely on to justify their own approach to the law. They point out to the requester that the only copy of the judgment they hold is a signed one from the court, and that it was “not intended for publication or wider disclosure”. They refuse to disclose it in reliance on the absolute exemption at section 32 of the Freedom of Information Act 2000 (FOIA) for information created by a court. What they don’t consider is – despite there being an exemption engaged – whether to exercise their discretion not to rely on it. In the circumstances, this would seem an obvious thing to do.

In fact, as the judgment is about the Environmental Information Regulations 2004, and it is used by the ICO to support its guidance on those regulations, it seems clear that the ICO should have dealt with the request also under the regulations. As they do not have an equivalent exemption to section 32 of FOIA, I cannot see the grounds for non-disclosure.

Instead, they suggest the requester asks for a copy from the Tribunal directly. Much better, and public-spirited, I would have thought – if they felt they shouldn’t or couldn’t directly disclose – would have been for the ICO to seek the permission of the Tribunal to disclose (or even better, to nudge the Tribunal to get it uploaded at https://www.gov.uk/administrative-appeals-tribunal-decisions).

The upshot of all this is that – regardless of whether the original requester does so – I’m going to contact the Upper Tribunal to ask for a copy, and when I get it, I’ll upload it to my personal blog. But I’m not convinced that’s really how open justice should operate.

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.

2 Comments

Filed under access to information, Environmental Information Regulations, FOIA, Freedom of Information, Information Commissioner, Open Justice, Upper Tribunal

Tagged as , , ,

August 25, 2024 · 9:36 am

Countless erroneous FOI decision notices

[reposted from LinkedIn]

Under section 50 of the Freedom of Information Act 2000 (FOIA), the Information Commissioner must – subject to exceptions applying – serve a decision notice on a “public authority” when a requester applies for such a notice to be made. Public authorities are, in the main, listed in Schedule One to the Act (some are also designated by statutory instrument, or are public authorities by virtue of being owned by one or more other public authorities).

Under section 58 of FOIA, upon appeal to the Information Tribunal, the Tribunal must uphold the appeal, or substitute a replacement, if it considers that the decision notice is “not in accordance with the law”.

I’d like to ask this – if the decision notice gets the name of the public authority wrong, is it “not in accordance with the law”?

Because that is what appears to be the case with countless decision notices served on educational institutions.

Someone recently made an FOI request to ask why the Commissioner had changed his 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”.

This in itself is pretty extraordinary, but it doesn’t look like it’s just a historic error which has now been corrected, because if one looks, for example, at the decision notices served this year on UCL, four have (presumably correctly) been served on the Council of the University of London, and three have (presumably incorrectly) been served on “University College London”. [UPDATE: Tony Mann, in the comments, draws my attention to what seems to be an error in the “correct” notices – the “Council of the University of London” is a different body to the “Council of University College London”.]

One has to ask two things: 1) are those three notices not in accordance with the law? 2) if the ICO knows that it is an error to serve a notice not using the correct terminology, why on earth is it still doing so?

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.

6 Comments

Filed under Environmental Information Regulations, FOIA, Information Commissioner

Tagged as , ,

August 25, 2024 · 8:47 am

Manifestly EIR

[reposted from LinkedIn]

I’m dumbfounded how a public authority, all of the staff at the Information Commissioner’s Office – including its litigation lawyers – and the three people hearing the appeal in the Information Tribunal, failed to identify that this request clearly should have been handled under the Environmental Information Regulations 2004 and not the Freedom of Information Act 2000 – it’s about land use, a boundary dispute and planning. The ICO decision notice even states that “it relates to the status of the Council’s land adjacent to the complainant’s property”.

It may be that, on analysis, the request – which was refused on the grounds that it was vexatious – a decision with which both the ICO and Tribunal agreed – would have been considered manifestly unreasonable under the EIR, but that is no excuse. The refusal was wrong as a matter of law, the ICO decision notice is wrong as a matter of law, and the Tribunal judgment is wrong as a matter of law.

I have raised this issue before of public authorities, ICO and the Tribunal failing to deal with requests under the correct regime. I’m now minded to raise the issue formally with, at least, the ICO.

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, FOIA, Information Commissioner, Information Tribunal

Tagged as , , ,

August 11, 2024 · 10:06 am

Soft opt in marketing for non-profits

Why can’t charities send speculative promotional emails and text messages to customers and enquirers, in circumstances where commercial organisations can? And should the law be changed?

Regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) deals with circumstances under which a person can send an unsolicited direct marketing communication by email, or text message.

In simple and general terms, a person cannot send an unsolicited direct marketing email or text message to an individual’s private email account, unless the individual has consented to receive it. “Consent”, here, has the stringent requirements imposed by Article 4(11) and Article 7 of the UK GDPR.

(The actual law is more complex – it talks of an “individual subscriber”. This is the person who is a party to a contract with a provider of public electronic communications (for which, read “email” and “text message”) services for the supply of such services. So, if you have signed up for, say, a gmail account, you have a contract with Google, and you are – if you are an individual – an individual subscriber.)

The exception to the requirement to have the recipient’s consent is at regulation 22(3) of PECR, which says that the sender of the marketing communication does not need the prior consent of the recipient where the sender: obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient; the direct marketing is in respect of the sender’s similar products and services only; and the recipient has been given a simple means of refusing the use of their contact details for the purposes of such direct marketing, at the time that the details were initially collected, and at the time of each subsequent communication.

This exception to the general “consent required” rule has long (and probably unhelpfully) been known as the “soft opt in”.

The notable requirement for the soft opt in is, though, that the recipient’s contact details must have been collected in the course of the sale or negotiations for the sale of a product or service.

There are various types of non-profit organisation which may well correspond with, and wish to send promotional emails and text messages to individuals, but which don’t as a rule sell products or services. Perhaps the most obvious of these are charities, but political parties also fall into the type.

The Information Commissioner’s Office (ICO) has long held that promotional communications sent by such non-profits do constitute “marketing” (and the Information Tribunal upheld this approach as far back as in 2006, when the SNP appealed enforcement action by the ICO). (I happen to think that there’s still an interesting argument to be had about what “marketing” means in the PECR and data protection scheme, and at one end of that argument would be a submission that it implies a commercial relationship between the parties. However, no one has yet taken the issue – as far as I’m aware – to an appellate court.)

But the combined effect of regulation 22(3) and the interpretation of “marketing” as covering promotional emails and text messages by charities, means that those charities (and political parties etc.) can’t send soft opt in communications.

The Data Protection and Digital Information Bill, which tripped and fell yards from the finishing line, when Mr Sunak, in a strategic master stroke, called the general election early, proposed, in clause 115, to extend the soft opt in where the direct marketing was “solely for the purpose of furthering a charitable, political or other non-commercial objective” of the sender.

Will the new Labour administration’s proposed Digital Information and Smart Data Bill revive the clause? The government’s background paper on the legislative agenda in the King’s Speech doesn’t refer to it, but that may be because it’s seen as a relatively minor issue. But, in fact, for many charities, the issue carries very significant implications for their operations and their ability effectively to fundraise.

It should be revived, and it should be enacted.

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.

2 Comments

Filed under charities, Data Protection Bill, Information Commissioner, marketing, PECR, political parties

Tagged as , ,

August 8, 2024 · 6:38 am

Fly Me (three quarters of the way) To The Moon?

When the ICO’s annual report was published a few weeks ago, I noted the proliferation of flights taken by ICO staff (which have more than tripled from 2022/2023 to 2023/2024 (from 206 to 774)).

And now, I note a response by the ICO to a WhatDoTheyKnow FOI request asking for the number of (publicly funded) air miles the Information Commissioner himself has flown. The figure is pretty remarkable: 275,182 km, or 171,000 miles.

By my calculations that’s the equivalent of 75% of the way to the moon, or seven times round the world.

It is only fair to note that a large chunk of this consists of flights to the Commissioner’s home country, New Zealand. Anyone can be excused for wanting to visit home, and family.

But the ICO has an Environment Policy, which commits it to “minimising damaging environmental impacts which may arise from the conduct of our activity”, and the government which recommended his appointment to the Crown published its “Jet Zero” strategy only months after he had been appointed.

Did anyone at DCMS consider the environmental impact of appointing a Commissioner whose home is on the other side of the world? Is anyone at the ICO considering whether it is complying with its own Policy (and maybe just general environmental ethics) when racking up the numbers of flights?

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 environment, Information Commissioner, Uncategorized

Tagged as

August 8, 2024 · 5:09 am

Blistering criticism for Home Office and ICO

[From a LinkedIn post]

A blistering judgment of the Information Tribunal upholding an FOI appeal by Bail for Immigration Detainees (BID) against the decision by the Information Commissioner’s Office (ICO) to uphold the Home Office’s refusal to disclose info about the process for deportation to Eritrea and Somalia (and by extension, the likelihood of deportees being either detained, or bailed, pending removal).

The request, about how many Emergency Travel Documents were requested, how many issued, how many people were then removed and how long this took, was refused by the HO on grounds that disclosure would be likely to harm international relations and would prejudice the operation of immigration controls.

The HO failed to reply to the ICO’s enquiries until served with a formal Information Notice. But the ICO then agreed that the exemptions were engaged.

The Tribunal did not agree.

The judgment notes the HO “made no effort to engage” with the appeals, and its evidence consisted of “thinly reasoned assertions, with no evidential support”, and

…we hope that the reasons were not meant to be comprehensive. It would betray a rather dim view by the Home Office of other countries’ governments to think that “many if not most” only care about money, and whether their citizens commit crimes or migrate unlawfully – as humans from all countries do.

To the extent the FOIA exemptions were engaged, the public interest test fell heavily in favour of disclosure. In the face of evidence from BID about levels of unlawful detention (in the form of the number of cases in which it had successfully appealed refusals of bail for detainees) the Tribunal observed that

For hundreds of years, the common law has demanded that administrative detention must be justified and be capable of proper challenge…The work done by BID, both on behalf of individuals and more broadly, supports that public interest. Disclosure…would help it to achieve those ends and avoid injustice.

There were minimal factors in favour of disclosure. In fact “it is difficult to conceive of a case concerning this exemption where the scales could be less weighted in favour of exemption”.

And, in closing, the Tribunal had a blast at the ICO, noting

our surprise that [he] thought it appropriate to accept the [HO’s] bare assertions, given the way in which it had responded to the previous requests described above and the compulsion required before it then properly engaged with these. In turn the…Decision Notices disclose no consideration of the various public interest factors carefully put forward by BID. A pattern of conduct has been established on the part of the [HO] that is within neither the spirit nor the letter of FOIA, and which can now be seen as having resulted in considerable delay together with expense of resources both on the part of the Tribunal and BID…We hope that future decisions will be reached after considerably more care and scrutiny.

Let’s see.

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, Home Office, Information Commissioner, Information Tribunal, LinkedIn Post

Tagged as , ,