A bulging in-tray

2011 is going to be a big year for information lawyers and professionals, suggests Ibrahim Hasan, who looks at some important recent government announcements. He also analyses two key First Tier Tribunal (Information Rights) decisions, including one relating to employee negotiations.

On 7 January 2011, the Ministry of Justice announced plans to change the Freedom of Information (FOI) regime in a number of ways. Much of the proposals about adding additional organisations to the list of public authorities caught by FOI was covered in an article published in Local Government Lawyer on 6 January 2011.

The MoJ also announced that the government will commence various provisions from the Constitutional Reform and Governance Act 2010, enacted by the previous Labour government. The Public Records Act 1958 will be amended to reduce the 30-year rule so that historical records are generally made available at The National Archives and other places of deposit after 20 years. This will be transitioned over a ten-year period at a rate of two years' worth of records being transferred per year, with a view to commencing the process in 2013.

At present, communications with the Royal Family are exempt from disclosure under section 37, but subject to a public interest test. In future the public interest test will be removed for communications with the monarch and the next two in line to the throne (Prince Charles and Prince William at present). The lifespan of the exemption will change from 30 years to 20 years, or five years after the death of the relevant member of the Royal Family, whichever is later. The Campaign for Freedom of Information has criticised this move, saying that in future where Prince Charles was seeking to actively intervene in policy decisions, his input would be withheld in all circumstances, even if it had played the decisive role. There will be a parallel reduction in the lifespan of certain exemptions in the Act to 20 years.

The government has also announced that the Freedom of Information Act will be amended in the Freedom Bill (to published in February) to ensure public authorities proactively release data in a way that allows businesses, non-profit organisations and others to re-use the information for social and commercial purposes. This is a blow to those who think FOI is being used too much by companies for commercial purposes and shows that this government, like the previous government, is firmly behind commercial exploitation of information released under FOI.

On the same day as the MoJ announcement a speech by Nick Clegg on civil liberties had something to say about access to information. The Deputy Prime Minister announced the government’s plans for a Public Data Corporation, which will “bring existing government bodies together into one organisation, responsible for disseminating a wealth of data”. The Corporation will release data from the Ordnance Survey (OS), the Met Office, Land Registry and perhaps Companies House. The Cabinet Office indicated that it was setting up the Corporation in its business plan published in November in which it set April 2011 as the date for its creation. The work is being done by the Treasury and the Department for Business, Innovation and Skills. Once again this sends a clear message that the government want to see more commercial exploitation of public sector information. It remains to be seen though whether data released by the new Corporation will be free or a fee will be payable.

Over the last few months there have been a number of appeal decisions by the First Tier Tribunal (Information Rights) which are worth considering.

Sometimes the applicant will insist that the requested information is held by a public authority even when the public authority says it does not hold it. How far does the public authority have to go to prove its case? In Edwards v Information Commissioner (EA/2010/0104), the applicant made a request for, amongst other things, data relating to a drug test carried out by Kings College London. The College stated that it did not hold the data in question and other relevant data had been routinely destoyed according to its usual practices. The applicant was dissatisfied with this response and complained to the Commissioner insisting that the information was held. The Tribunal agreed with the Commisioner’s decision that there was no evidence that the information was held and no evidence of dishonesty on the part of the College.

The Tribunal reminded itself of a previous decision (Linda Bromley v Information Commissioner and the Environment Agency (EA/2006/0072)) that in order to be satisfied that particular information is not held, it is not necessary for the public authority to prove to a point of certainty that this is so, rather the matter is to be determined on the balance of probabilities. Thus, the Tribunal must ask itself if it is more likely than not that the information is held.

Section 36 (2)(b)(i) allows information to be withheld if disclosure would, or would be likely to, prejudice free and frank provision of advice. It is a qualified exemption and so the decision to withhold is subject to the public interest test.

In Public and Commercial Services Union (PCS) v Information Commissioner and the Ministry of Justice (EA/2009/0123) the PCS request for information about pay negotiations between it and the National Offender Management Service (NOMS) was refused on the grounds that disclosure would prejudice free and frank advice and the public interest in disclosing the information was outweighed by the public interest in withholding it. NOMS argued that officials’ (and Ministers’) ability to be able to fully consider all options on changing the pay and grading of staff would be stifled if the withheld information were to be released and that this outweighed the public interest in accountability and transparency.

The Information Commissioner considered that the exemption was engaged. He went on to consider the public interest factors. The withheld information concerned the tactics and the stance to be taken in negotiations over pay and conditions. Disclosure would cause an imbalance in those negotiations and was contrary to the public interest, even after the negotiations had been concluded, as the information had remained relevant and sensitive up to the time, approximately four years after the events in question, when NOMS had refused to release it. The Commissioner considered that those public interests were not equalled or outweighed by the public interest in disclosure put forward by PCS, which he considered to be of greater interest and benefit to PCS than to the public as a whole.

The Tribunal agreed with the decision of the Commissioner.  This is an important decision for local authorities which will no doubt be the subject of many such similar requests as the effects of the public sector cuts begin to bite and difficult negotiations are held with the unions.

Ibrahim Hasan is a solicitor and director of Act Now Training (www.actnow.org.uk). He is the course director for Act Now’s ISEB Certificate in Freedom of Information course and runs the FOI helpline.