Transparency and openness for local authorities does not just mean disclosing information under the Freedom of Information Act 2000 (FoI). Section 3 of the Local Government, Planning and Land Act 1980 gives the secretary of state the power to issue a code of practice about the publication of information by local authorities relating to the discharge of their functions.
In May last year, Eric Pickles used this power to issue (what was then) a new Local Government Transparency Code.
An updated version of the code was issued in October. It applies in England only and replaces the previous version. The code requires councils (as well as, among others, national park authorities, fire and waste authorities and integrated transport authorities) to proactively publish certain categories of information. The Local Government (Transparency Requirements) (England) Regulations 2014, for the first time, make it a legal requirement for authorities to publish the data specified in part 2 of the code.
The updated code still requires the same information on spending, procurement and assets to be published as under the previous version. The main difference between the May and October codes is that the latter has added three new datasets to the list: namely information about how the authority delivers waste services, uses the parking revenue it collects, and tackles fraud.
The problem with the code is that it does not have an ‘enforcer’ like the information commissioner under FoI. Indeed, the Department for Communities and Local Government has pointed out in an FAQ document that it is not the commissioner’s role to enforce the code. It suggests that complainants can issue a judicial review claim in the High Court, complain to the Local Government Ombudsmen, or make an FoI request for the information.
Section 5 of the FoI enables the secretary of state to designate a body as a public authority if it appears to the secretary of state:
(a)… to exercise functions of a public nature, or
(b) is providing under a contract made with a public authority any service whose provision is a function of that authority.
The Freedom of Information (Designation as Public Authorities) Order 2015 came into force on 23 March. Network Rail (or more specifically a group of companies which are in the Network Rail group) is now subject to FoI. Much has been by said by politicians on all sides about extending the reach of FoI to private companies delivering public services. We will have to wait until the outcome of the general election to see if the deeds match the words.
New FoI exemption
A new qualified exemption is now available to public authorities by virtue of an amendment to FoI made by section 20 of the Intellectual Property Act 2014. Subsection 1(a) of new section 22A 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.
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). Any public authority can use this new exemption, not just universities.
Fees and section 16
Where the cost of dealing with a request for information is likely to be over the prescribed costs limit (£450/£600) a public authority can refuse the request. Section 16, though, places a duty on the authority to help an applicant bring their request within the costs limit. This could be by suggesting the applicant rephrase the request, or even split the request into two or more requests. How far does a public authority have to go in suggesting alternatives?
On 22 October, in Commissioner of Police for the Metropolis v The Information Commissioner and Donnie Mackenzie,  UKUT 479 (AAC), the Upper Tribunal ruled that the standard imposed by section 16 is set at a relatively low level. It agreed with the First-Tier Tribunal (Information Rights) (FTT), in Beckles v Information Commissioner (EA/2011/0073 & 0074), that: ‘S.16 requires a public authority, whether before or after the request is made, to suggest obvious alternative formulations of the request which will enable it to supply the core of the information sought within the cost limits. It is not required to exercise its imagination to proffer other possible solutions to the problem.’
Section 10(1) of FoI sets out the time limit for dealing with a request for information: ‘A public authority must comply… promptly and in any event not later than the twentieth working day following the date of receipt.’
Under the Environmental Information Regulations (EIR) the response to a request must be made ‘as soon as possible and no longer than 20 working days after the date of receipt’. In Keating v Information Commissioner and Oxford City Council (EA/2013/0226), the FTT said that whether it is an FoI or EIR request the principle is the same: ‘In our judgement, whichever time limit applies, it is necessary to be realistic. While both pieces of legislation contemplate a speedy response, the urgency intended is not such as to require a public authority to “drop everything” in order to reply.’
We now have a binding authority for this principle, in the form of the Upper Tribunal decision in John v ICO & Ofsted  UKUT 444 AAC.
Third-party personal data
Section 40 provides an exemption from disclosure of personal data about the requestor as well as that of third parties. With regards to the latter, the public authority must show that disclosure would breach of one of the Data Protection Principles (usually the first one).
In the absence of consent this usually requires consideration of condition 6(1) of Schedule 2 of the Data Protection Act 1998: ‘The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.’
In a recent Upper Tribunal Decision, Goldsmith International Business School v IC and Home Office (GIA/1643/2014), the judge endorsed the Information Commissioner’s eight rules when applying the test in condition 6. These are lengthy but essential reading for all FoI officers.
Names of legal advisers
Names of staff are clearly personal data. The test is, does the requestor have a legitimate interest in knowing the names and is disclosure necessary to satisfy that interest? In November, the FTT (in Timothy Couzens v IC EA/2014/0146) upheld the Care Quality Commission’s refusal to supply the names of individuals who provided it with legal advice on the deregistration of a care agency.
The FTT found that Couzens had ‘provided no persuasive argument that disclosure of the names in question would contribute to transparency, given that the substance of the legal advice has been disclosed, as a result of the CQC waiving its right to rely upon the exemption provided by FoI section 42 (legal professional privilege)’.
When considering how to respond to an FoI request a public authority should consider the mantra that FoI is ‘applicant’ and ‘motive blind’. The FTT decision in Hepple v IC and Durham County Council (EA/2013/0168) shows that this is not an absolute rule.
The background is that the council received an FoI request for a copy of the investigators’ report into a disciplinary incident at a pupil referral unit run by the council. At that time, disciplinary proceedings were pending against each of the suspended members of staff.
The council refused the request, relying on a number of exemptions including section 38 (health and safety). The FTT upheld the decision of the ICO on this point mainly because the requester had sent text messages to some of the individuals involved ‘with the purpose of menacing those whose addresses the appellant had acquired’. The FTT said ‘assessing an information request on this “motive blind” basis ought not to prevent us from considering the potential risk to safety posed by the requester him/herself’.
The section 42 exemption is often relied upon by public authorities when refusing to disclose legal advice. It is a qualified exemption. A few decisions have required disclosure of legal advice on public interest grounds but these have been few and far between. Indeed, following the tribunal decision in Bellamy v The Information Commissioner, which stated that there is an inherent public interest in maintaining privilege, most authorities were almost treating section 42 as an absolute exemption.
A September decision of the FTT reminds us that the public interest in disclosing legal advice has to be considered carefully. The Bingham Centre for the Rule of Law v Information Commissioner (EA/2014/0097) concerned a request to the Home Office for the independent legal advice, which was referred to in a Home Office report, entitled Intercept as Evidence.
The FTT disagreed with the ICO’s decision to uphold the refusal. It said that the arguments around whether intercept information should be admitted as evidence should be made public so that there could be a full and frank public debate: ‘All the arguments both for and against such a system should be aired in public with the various interest and pressure groups having an opportunity to consider existing legal (and other) opinions and to respond to them.
‘The majority felt that there would be an ultimate benefit in developing a good sound workable “intercept as evidence” system through such public debate and that the detrimental effect of disclosure was negligible if not non-existent.’
Water companies and the Environmental Information Regulations
On 23 February 2015, the Upper Tribunal ruled that water companies are subject to the Environmental Information Regulations 2004. In Fish Legal v Information Commissioner and others (2015) UKUT 0052 (AAC) the Tribunal applied the principles from the CJEU’s judgment of December 2013, (Fish Legal and Emily Shirley v Information Commissioner, United Utilities Water plc, Yorkshire Water Services Ltd, Southern Water Services Ltd) to rule that that water companies are covered by EIR, by virtue of their ‘special powers’.
It’s a complex and the lengthy judgment and my word limit will not allow me to even start discussing the issues here. Those advising water companies need to read (and reread) all sixty pages. No doubt the next round of this lengthy battle will see the parties square up in the Court of Appeal. Watch this space.
Ibrahim Hasan is a solicitor and director of Act Now Training