One of the key recommendations of the House of Commons Justice Select Committee in its July 2012 report on the Freedom of Information Act 2000 (FoI) was the introduction of a new exemption for academic research. The government accepted this recommendation in its official response late last year.
Clause 19 of the Intellectual Property Bill, currently proceeding through parliament, inserts this new exemption (section 22A) into FoI. Subsection 1(a) of clause 19 provides that information is exempt from disclosure if it relates to information obtained in the course of, or derived from, a programme of continuing research that is intended for future publication. Subsection (1)(b), however, provides that the information will be exempt only if disclosure would, or would be likely to, prejudice a matter listed in that subsection. The exemption will be a qualified one and so subject to the public interest test. Public authorities will not be required to confirm or deny that they hold section 22A information if, or to the extent that, compliance would, or would be likely to prejudice, any of the matters mentioned in subsection (1)(b).
What is information?
Section 84 of FoI defines information as ‘information recorded in any form’. This includes information held on paper, computer, video, audiotapes, as well as that contained in manuscript notes. Marks made on documents are also covered, according to an Information Tribunal decision from 2009 (O’Connell v the Information Commissioner and Crown Prosecution Service (EA/2009/0010)).
In the light of the above decision, it should come as no surprise that, in April this year the First-Tier Tribunal (Information Rights) ruled that images of MPs’ expense claim receipts comprised information to which the act applied (IPSA v Information Commissioner (EA/2012/0242)). The background to the request is that, following the MPs’ expenses scandal, the then newly formed Independent Parliamentary Standards Authority (IPSA) decided that it would not routinely publish images of the receipts submitted to IPSA by MPs in support of their expenses claims. Only text transcribed from the submitted receipts was to be published.
A journalist made an FoI request for the actual receipts submitted by a number of MPs. The question arose as to whether images of those receipts held by IPSA contained ‘information’ within the meaning of section 1 of FoI, which was not captured by the transcription process favoured by IPSA. The tribunal concluded that the definition of information (in this case) included logos, letterheads, ‘handwriting/manuscript comments’, and ‘the layout and style/design of the requested documents’ – each of which were not disclosed to the requester as a result of providing a transcription, rather than a copy, of the relevant receipts.
This is an interesting decision, especially for those public authorities which often insist, when refusing to supply actual documents (such as minutes of meetings) that FoI is about access to information not documents. Sometimes the requester is interested in the document which contains the requested information, as it will give a further insight into its background and the thoughts/observations of the producers/subjects of the document.
Until February 2013, there was no binding authority on the meaning of vexatious under section 14(1) of FoI, or manifestly unreasonable under regulation 12(4)(b) of the Environmental Information Regulations. In three distinct but related decisions, the Upper Tribunal has tried to plug this gap. The cases are Dransfield v IC (2012) UKUT 440 AAC, Craven v IC (2012) UKUT 442 AAC, and Ainslie v IC (2012) UKUT 441 AAC. According to Judge Wikeley, the appropriate question is: ‘Is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FoI?’
The Information Commissioner’s Office (ICO) has now produced detailed guidance based on these key decisions. The guidance sets out a new list of 13 indicators (replacing the previous five) of a vexatious request: abusive or aggressive language; burden on the authority; personal grudges; unreasonable persistence; unfounded accusations; intransigence; frequent or overlapping requests; deliberate intention to cause annoyance; scattergun approach; disproportionate effort; no obvious intent to obtain information; futile requests; frivolous requests.
The ICO emphasises that these are meant as a guide only and are not an exhaustive list. The guidance also addresses topics which are very familiar to FoI officers, including round robins, fishing expeditions and requesters acting in concert or in pursuance of a campaign.
The section 42 exemption (legal professional privilege) is often relied upon by public authorities when refusing to disclose legal advice. Not all advice given by a legal professional will attract this exemption though. It is important to ascertain who the advice was given by and what their role is within the public authority.
In February, the Information Commissioner ordered Cambridgeshire County Council (Ref: FS50457339) to disclose advice given by a chartered legal executive employed in its trading standards department to a company involved in a dispute. The commissioner concluded that the requested information did not attract legal professional privilege and was therefore not exempt from disclosure under section 42. He said: ‘The information must be communicated in a professional capacity, ie by a legal professional retained to provide legal services to their client. Consequently not all communications from a professional legal adviser will attract advice privilege.’
The communication in question needed to have been made for the principal or dominant purpose of seeking or giving legal advice. In the present case, the adviser was employed by the council as an adviser with expert legal knowledge to assist in providing advice and assistance to third parties on the council’s interpretation of trading standards legislation. This did not mean that he was employed as a professional legal adviser, funded by the council, to provide legal advice to third-party clients such as the company in question.
Also the commissioner did not believe that it could be said that the company in question had retained the services of the adviser in a professional capacity so that he could provide them with legal advice. Rather, the company appeared simply to have made use of the council’s trading standards advice service and was provided with advice, albeit by someone with a legal qualification. This advice did not attract legal professional privilege and so section 42 was not engaged.
Ibrahim Hasan is a solicitor and director of Act Now Training