Freedom of information requests

The revolution in access to information held by public bodies unleashed with the Freedom of Information Act 2000 (FOIA) and given further impetus by the Environmental Impact Regulations 2004 (EIR) continues to generate new developments. But where do you start when making an FOI request and how can you resist them?

The first thing to check is whether the holder of the information really is a public authority. Somewhat surprisingly, the boundaries of what is and what is not a public authority continue to be debated. The Upper Tribunal in Smartsource Drainage & Water Reports v IC (November 2010) found that private water companies regulated under a statutory scheme were not public authorities within the EIR. This decision will be appealed, however, so it is still worth considering carefully whether an ostensibly private body is really a public authority for the purposes of the EIR.

Next, if you are acting for a public authority, you will need to scrutinise claims that information is 'personal' carefully. In Department of Health v Information Commissioner [2011] EWHC 1430 (Admin), the Information Tribunal had decided that numerical information on late abortions constituted 'personal information' under the data protection regime (and therefore potentially outside the scope of FOIA). The Department of Health sought to uphold this finding because the numbers were so low that, in conjunction with other information held by the department, they could be used to identify those involved. The High Court rejected this analysis as 'divorced from reality' because the same would be true of any type of medical statistics given the large amount of information the department held. This decision therefore helps those seeking disclosure of information by upholding a robust approach to the question of what 'personal information' is. However, there would still be scope for argument in the context of a public authority which held less information or where the information disclosed was so specific (e.g. as to location) that it could lead to the identification of an individual.

You should also calculate the costs of complying with the request correctly. If there are excessive costs of complying with a request under the FOIA that can mean that there is no need to comply with the request. Given that FOIA is perceived by many public authorities as a costly waste of staff time and resources, arguments along these lines are not uncommon. In Chief Constable of South Yorkshire v Information Commissioner [2011] EWHC 44 (Admin), the chief constable deployed the ingenious argument that time spent redacting exempt information should be calculated as part of the cost of 'extracting the information' for disclosure. This argument had been deployed before the Information Tribunal in the past with little success but in these proceedings it was dismissed by the High Court so will not be available to public authorities in the future. However, it is worth noting that had those requesting the information sought it in a different format which avoided the need for redaction they might have obtained it without the protracted litigation which in fact ensued. Those requesting information will therefore be best served by consulting with the public authority over how the information they require can be provided at least cost to the authority.

If resisting a disclosure application, it may also be useful to rely on multiple exemptions to disclosure. However, depending on an expected ruling of the European Court of Justice, the number of exemptions relied upon may be the crucial factor in deciding whether or not the information is disclosed under the EIR at least. It had been decided at first instance and in the Court of Appeal that exemptions could not be weighed up cumulatively. Therefore, it did not assist to rely on anything other than the strongest exemption. However, a majority in the Supreme Court considered that the cumulative approach was the correct approach and referred the question to the Court of Justice of the European Union (Office of Communications v Information Commissioner [2010] UKSC 3). The court has yet to give its ruling but Advocate General Kokott suggested in her opinion on 10 March (case C-71/10) that it should apply the cumulative approach. If the court follows the AG it will make it sensible for public authorities to rely on as many exemptions as possible when resisting requests for disclosure.

Finally, applicants should also be alert to the existence of public sector audits. The main focus of information law practitioners is on the FOIA and EIR. However, there is another less well known route to securing disclosure of information which is particularly relevant where a private body has signed contracts with a public authority. The Court of Appeal in Veolia v Nottinghamshire County Council [2010] EWCA Civ 1214 upheld the wide construction placed on provisions in the Audit Commission Act 1998 which had meant that certain documents relating to Veolia's PFI contract with the local authority should be made available to the public because they 'related to' the county council's audit. Although the authority in this case was a county council, the provisions in the Act also apply to a broader range of public authorities so the decision is potentially of some significance given the prevalence of PFI and other forms of contract between public authorities and private operators. However, the consequent right of inspection is still limited in its application to confidential information, so the fact that a document relates to an audit does not give carte blanche for its disclosure.

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