Entries Tagged 'Freedom of Information' ↓

Reports are that Richard Thomas will be continuing as Information Commissioner until his 60th birthday - I think that this provides some welcome consistency to the world of data protection and freedom of information, and just hope that he can continue his efforts to make the ICO more business focussed and efficient.

Information commissioner Richard Thomas reinstated until June 2009 - 04/04/2007 - Personnel Today

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”.

Yes!

The recent decision notice of the ICO made against Hertfordshire County Council accepted that some of the information being requested was subject to a contractual obligation of confidence (other information was not received from a third party, so the section 41 exemption could not apply anyway).  Not only that, but it had the necessary qualities of confidence (the circumstances imparted an obligation of confidence, the information was not trivial and was not available by other means).  But even so, the section 41 exemption did not mean that the information should be withheld.

Why?

Because in order for a disclosure to constitute an actionable breach of confidence, the common law of confidence requires that there is not a defence that the disclosure was in the public interest.  In this case the ICO considered that it was in the public interest to disclose how the Council was investing taxpayers’ money, and therefore there would have been no breach of that obligation.

Lesson: just because you have a confidentiality provision in your contract with a public authority does not mean that it will escape disclosure under FOIA.  You need to be really sure that the information truly is confidential, and that there is no overriding public interest requiring its disclosure.  Moreover, you must be aware that the only information protected is that moving from the private company to the public authority - the contract itself, information developed by both parties and information provided by the public authority will not benefit from the exemption.