11 November 2014 Key contacts Simon Charlton Associate 0121 200 8118 s imoncharltonweightmanscom Emma EmeryPartner 0845 274 6888 EmmaEmeryFreethscouk Contents Decision Notices and Case Law update ID: 438306
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Information Law & Governance
11 November 2014
Key contacts:
Simon Charlton / Associate
0121 200 8118
s
imon.charlton@weightmans.com
Emma Emery/Partner
0845 274 6888
Emma.Emery@Freeths.co.uk
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Contents
Decision Notices and Case Law updateFOIA/DPA update Enforcement Actions by the ICO including a case study on Niebel v Information Commissioner Overview of the Information Rights Tribunal procedure Slide3
Human Rights Act 1998
Direct Result:Data Protection Act 1998 – governs the storage of and the access by individuals to personal information about themselves held by any body (private or public). Protects personal data.Freedom Information Act 2000 – allows individuals access to information held by Public Authorities of “recorded” non personal information.
NB: Access is to information, not necessarily to documents.Slide4
Freedom of Information Act – Public Authorities’ Obligations
Adopt and maintain a “publication scheme”.Respond to requests for information under the Freedom Information Act 2000.Obligation to respond within 20 working days.Presumption is for disclosure – cultural change.Slide5
Data Protection Act 1998
An individual is a data subject.Records relating to LIVING PERSONS.Came into force – 1 March 2000.Disclose within 40 calendar days.Strengthens and extends data protection regime created by Data Protection Act 1984.Slide6
Freedom of Information Act 2000Requests for Information
Can be made by:-Any person – corporate or unincorporated body.Could be foreign applications via UK agents.For data held by or on behalf of the Public Authority. Request must be in writing (no statutory application form). Must provide name and address of correspondent ? (email?). Slide7
Requests for Information
Must describe information required. Must pay a fee.Respondent Authority duty bound to provide reasonable advice and assistance. Authorities ( subject to exceptions) have to: (i) State whether they hold such information. (ii) Communicate actual information. Slide8
Requests for Information
Satisfy request within 20 working days once fee is paid unless there is a need to consider public interest. If so estimate of time for disclosure should be given to applicant. Hence need for early decision making. Breach of 20 working days common ground for criticism and sanctions from ICO. Need process to deal with complicated requests.Staff equipped to recognise exemptions.Staff equipped to consider public interest test. Slide9
FOIA Exemptions
Absolute – do not require the test of prejudice or the balance of public interest to be in the favour of non disclosure. Section 36 – Prejudice to effective conduct of public affairs (relating to information held by Parliament). Section 40 – Personal Information (disclosure may contravene DPA 1998). Section 41 – Information provided in confidence.Section 44 – Prohibitions on disclosure. Slide10
FOIA Exemptions
Qualified – public interest test to be applied to decide whether exemption should be applied or not. Section 36 – Prejudice to effective conduct of public affairs (excepting Parliament). Section 37 – Communications with Her Majesty etc., and Honours.
Section 38 – Health and Safety.
Section 39 – Environmental Information.
Section 42 – Legal Professional privilege.
Section 43 – Commercial interests. Slide11
FOIA-Public Interest Test
Does the public interest in withholding information outweigh the public interest in releasing it?If information is exempt this does not mean the whole document will be withheld. Slide12
Section 40(2) P
ersonal DataHalton Borough Council, ICO Decision Notice ref FS0524012 1 April 2014 Governing Body of Reading School v (1) Information Commissioner (2) James Coombs EA/2013/0227, 15 April 2014 Jonathan Corke v Information Commissioner EA/2014/0012 3 June 2014Slide13
Recent Cases
Edem v Information Commissioner – Court of Appeal [2014] EWCA Civ 92.Surrey Heath Borough Council v (1)Information Commissioner (2) Morley [2014] UKUT 0339 (AAC)
Farrand
v (
1)Information
Commissioner
(2)
London Fire & Emergency Planning Authority [2014] UKUT 0310 (AAC)Slide14
FOI/EIR and Vexatious Requests
Section 14 of the Freedom of Information Act 2000Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatiousRegulation 12 (4) (b) of the Environmental Information Regulations 2004 …a public authority may refuse to disclose information … to the extent that the request for the information is manifestly unreasonable.” Slide15
Case Law
Upper Tribunal considered what constitutes a vexatious request in Information Commissioner v Devon CC and Dransfield [2012] UKUT 440 (AAC)Judge Nicholas Wikeley described section 14 as a “get out of jail free card” for public authoritiesKey factorsthe burden (on the public authority and its staff)
the
motive
(of the requester)
the
value or serious purpose
(of the request); and
any
harassment or distress
(of and to staff).Slide16
ICO Guidance
Revised guidance issued in May 2013Authorities should address the four themes.“Significant burden” becomes one factor rather than a first test.Well reasoned evidence is needed.Authorities should engage with applicants to help them understand why they consider a request to be vexatious.Slide17
EIR
ICO Guidance on dealing with “manifestly unreasonable requests” issued in March 2013may relate to the request being vexatious or the cost of compliance being too great“there is no material difference between a request that us vexatious under section 14(1) of FOIA and a request that is manifestly unreasonable on vexatious grounds under the EIR”“the exception is subject to the public interest test. In practice however, many of the issues relevant to the public interest test will already have been considered when deciding if the exception is engaged. Slide18
Cases since Dransfield
Cain v Information Commissioner (EA/2012/0226)Sivier v Information Commissioner (EA/2013/0277) Department of Education v (1) ICO (2) L.McInerney (EA/2013/0270)NS Chadha v IC EA/2013/260Slide19
Section 3 (2) Information held by public authority
Hackett v (1) IC (2) United Learning Trust EA/2012/265 Sandwell MBC FS50527537Innes v (1) IC (2) Buckinghamshire County Council 2014 EWCA Civ 1086Slide20
Section 43 Prejudice to Commercial Interests
Hugh Mills v IC EA/2013/0263 2 May 2014 Slide21
Publications/Guidance
Local Government Transparency CodeICO Audit of 16 Local Authorities ICO Publication : Definition Documents & Templates Guides for Model Publication SchemesICO Publication: CCTV Code of Practice Slide22
News
Privacy by DesignBeacon Technology Slide23
www.emlawshare.co.uk
Information Law and GovernanceEnforcement action by the ICOSlide24
Enforcement action by the ICO
Information Notice (section 43 DPA)GroundsContentFailure to complyDefencePrivilege and self incriminationSlide25
Enforcement action by the ICO
Enforcement Notice (section 40 DPA)GroundsContentFailure to comply, defenceRecent cases:Wolverhampton City Council 15 May 2014Glasgow City Council 4 June 2013Slide26
Enforcement action by the ICO
Assessment Notice (sections 41A – C DPA)AuditGroundsContentCode of PracticeFailure to comply – Schedule 9UndertakingsSlide27
Enforcement action by the ICO
Monetary Penalty Notice (section 55 DPA)Very high thresholdDeliberateKnew or ought to have knownSignificant damage or distressMaximum penalty £500,000Notice of intent and representationsSlide28
Enforcement action by the ICO
Monetary Penalty Notice (section 55 DPA)Aggravating and mitigating circumstancesEffect of contraventionBehavioural issuesImpact on Data ControllerRight of AppealEnforcementGuidanceSlide29
Enforcement action by the ICO
Monetary Penalty Notice (section 55 DPA)Recent casesMinistry of Justice August 2014 - £100,000Department of Justice Northern Ireland Jan 2014 - £185,000Slide30
Enforcement action by the ICO
Criminal ProsecutionFailure to notify (ss 17(1), 21(1))Failure to notify of changes (ss 20(1), 21(2) and (3)Jayesh ShahUnlawful obtaining of personal data (s55) Dalvinder SinghPenaltiesSlide31
Case Study: Niebel v Information Commissioner
Appeal against MPNBreach of PECR but appeal against section 55A not PECR breachCentral London Community Healthcare NHS TrustFailed to properly exercise discretionSelf reported so barredUnlawful not to extend discount periodAmount unsustainably highSlide32
Case Study: Niebel v Information Commissioner
Notice and representationsGrounds for challengeSerious contravention of a kind likely to cause significant damage and significant distressDeliberateKnew or ought to have knownSerious contravention would occurLikely to cause significant damage or distressSlide33
Case Study: Niebel v Information Commissioner
Request for particulars/statement of the contraventionEvidenceTacticsSlide34
Information Tribunal Procedure