Entries from February 2007 ↓

There have been a number of recent decisions of note in the world of freedom of information.

Some recent decisions have looked at the interaction between the Data Protection Act and the Freedom of Information Act.

Doncaster Metropolitan Council has been ordered to reveal the names of some officials who repaid money to the Council following excessive expenses claims. The details of those who made voluntary repayments will not be disclosed, but the details of those who were convicted following a criminal prosecution. Such a disclosure would not contravene the Data Protection Act as the information is the result of a conviction which has followed due process and took place in the relatively recent past.

Braintree District Council has been ordered to disclose a list of council properties which it owned, only excluding addresses in respect of which a data subject had exercised their right under s10 to object to the disclosure of their personal data. The Council may also exclude from the list any addresses whose disclosure to a member of the public might reasonably be considered likely to cause distress to any resident of those properties. This is a surprising decision which seems to give priority to the right under the Freedom of Information Act. The ICO considered that whilst the information was personal data, there was not a breach of the data protection principles. In particular, he discounted the claim that it would be in breach of principle 2, use of data for a purpose other than that it was obtained for, as this would defeat all FOIA requests.

Finally, the Information Tribunal in the case of Dr Christopher Lamb v Information Commissioner has imposed a positive duty on public authorities to seek clarification of a request, pursuant to their s16 duty to provide advice and assistance to an applicant for information, in order to prevent the true nature of a requested to be “transformed into something other than what may have been thought to be its original ambit and purpose”.

The courts have once again had reason to consider a contractual obligation to act reasonably and in good faith in the case of Tramtrack Croydon Ltd v London Bus Services Ltd [2007] EWHC 107 (Comm). In the contract the parties had agreed to agree (acting reasonably) some particular financial arrangments and to refer any failure to agree to expert determination. Considering the authorities including Walford v Miles [1992] 1 All ER 453, the parties did not contest that the clause was unenforceable for lack of certainty, and the court went on to confirm this stating: “In those circumstances the Court can, in my judgment, decide, in the case of dispute, at least what they, and the expert, acting reasonably, are bound to take into account or ignore. An agreement such as this should not be construed to mean that the parties (or the expert) may legitimately take into account anything (however unreasonable or irrelevant) they choose, or that their contractual fate is to be determined by whatever the appointed expert happens (on whatever basis) to decide. Reasonableness is a criterion on which the Court (and the expert) can make a judgment; and, if the parties cannot agree whether it would be unreasonable to take into account, or to exclude, a particular consideration, the Court may determine the question.”

Yesterday, the European Commission published its long awaited “Green Paper on the Review of Consumer Acquis” - the body of rights held by consumers in the European Union.

The review covers the 8 main directives aimed at protecting consumers, including the familiar roll-call of the Unfair Terms in Consumer Contracts Directive, the Consumer Sales and Guarantees Directive, the Distance Selling Directive, the Doorstep Selling Directive and the Package Travel Directive. It pulls on a number of surveys which show that despite attempts at harmonisation, trade between member states in consumer goods is not what it could be - many businesses would like to sell to consumers in other member states but are fearful of doing so because of varying regulatory requirements, and many consumers who purchase goods from another member state are running into difficulties when their rights vary state to state.

The main objective of the review is to remove this stumbling block, allowing consumers and businesses within the European Union to trade without concern as to where the other party is based, primarily to benefit consumers by allowing for consistency, but also to reduce the burden of SMEs by creating a more predictable regulatory environment within the European Union.

The green paper is consulting on a number of issues including the proposed approach (either a vertical approach requiring the revision of individual directives, or a horizontal approach requiring the implementation of a framework addressing issues for all consumer contracts), the definitions of consumer and professional (recognising that there is not currently a consistent approach to this), the potential introduction of a general duty to act in good faith, and detailed questions regarding unfair terms, withdrawal, delivery, remedies and other issues.

Responses to the consultation are requested by 15 May 2007. The green paper can be found here.

The Department for Constitutional Affairs has announced that it intends to take forward the ICO’s suggestion that custodial sentences be available for breach of s55 of the Data Protection Act 1998. This will be introduced when parliamentary time allows.