This briefing looks at the effect of the freedom of information regime, based on the findings of recent government assessments. It also briefly considers some key decisions that form part of the developing body of freedom of information case law, which are outlined in the context of some general trends that have emerged.

The freedom of information regime

Under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR), any individual or organisation has a right to access information held by over 100,000 public authorities, subject to certain important exemptions and exceptions (a separate regime exists in Scotland). Requests for information do not need to say why the information is wanted or what it is wanted for. Public authorities subject to this freedom of information regime, from government departments to museums, are required to respond to all information requests they receive (usually within 20 working days). They also have a duty to advise and assist those making requests or proposing to make them. The regime has been in force since 1 January 2005.

Effect of the regime

In June 2007 the government published its Second Annual Report on the operation of the FOIA in Central Government, which provides statistics on the effect of this legislation on all major departments of state and various government agencies during 2006.

The implementation of the FOIA was described by a parliamentary select committee last year as having been a ‘significant success’ overall. The government has endorsed this view.

The following statistics taken from the Second Annual Report provide an indication of the overall trends in central government for 2006.

The number of ‘non-routine’ FOIA and EIR requests received by the 43 monitored central government bodies during 2006 fell by 12 per cent from the number received in 2005 and stabilised at approximately 8,000 per quarter.

The provision of timely responses to requests has improved, with 91 per cent of requests being answered within the required deadline in 2006, compared with 87 per cent in 2005. This improvement follows a commitment given by the government last year, in response to recommendations made by the parliamentary select committee referred to above, to work with the Information Commissioner’s Office (ICO) to raise standards so that authorities consistently provide more timely responses to requests.

In 2006, nearly two-thirds of all ‘resolvable’ requests received across central government (meaning requests where a substantive response was possible) were granted in full. In about one in five cases, the requested information was withheld in full.

The most commonly applied exemptions to disclosure under the FOIA were section 40, personal information (1,893 requests), and section 41, information provided in confidence (782 requests).

As was recognised by the government in its Second Annual Report, the administrative demands that the regime places on public authorities can be substantial.

In October 2006, the government commissioned an independent review of the cost burden to the public sector in complying with freedom of informationrequests. The findings of this review included the following.

The total annual cost to central government of handling FOIA requests was estimated to be £24.4m. The wider public sector was found to receive at least 87,000 requests annually, with local authorities receiving around 60,000 of the total. The total annual cost of handling these requests was estimated to be £11.1m.

A small percentage of requests placed disproportionate resource burdens on public authorities, particularly in terms of officials’ time. Approximately 5 per cent of central government requests were found to cost more than £1,000 and account for more than 45 per cent of the cost of time spent dealing with initial requests.

In June 2007 the government closed a public consultation on new draft fees regulations that were published in response to these findings, and its final proposals on these are now awaited. If adopted, the new regulations would allow public authorities to take into account more factors than they can at present (such as reading time) when assessing whether dealing with a request would cost them more than the ‘appropriate limit’ (£600 for central government and £450 for the wider public sector), above which they can decline to comply. This means they would be likely to have to comply with fewer requests than they do currently.

Developing case law

Those who make freedom of information requests can complain to the ICO if they feel a public authority has failed to comply with its obligations under the FOIA or the EIR, and when a decision notice is issued by the ICO there is a right of appeal to the Information Tribunal (Tribunal). There is now an emerging body of freedom of information case law based on the decisions of the ICO and the Tribunal, many of which relate to public authorities’ application of exemptions and exceptions to requested information. Some key decisions are outlined below in the context of some general trends that have emerged.

Expansive application of the regime

Generally speaking, both the ICO and Tribunal have taken decisions that favour an expansive application of the regime, in particular when determining the scope of the public authority definition, and also when assessing whether information is being held on behalf of public authorities.

Several cases demonstrate that the ICO and Tribunal will adopt a broad interpretation of the definition of ‘public authority’ under the EIR. In Port of London Authority v ICO and Hibbert (May 2007), the Tribunal rejected the Authority’s arguments that it was not subject to the EIR. This was partly because it was satisfied that if the Authority were not responsible for certain functions, the government would need to ensure another body was tasked with them, and also because the Authority was subject to a degree of control by government and had accountability to parliament. As such, the Tribunal regarded the Authority to be carrying out functions of public administration.

Similarly, in Environmental Resources Management Ltd (ERM) (June 2006), the ICO decided the consultancy firm was a public authority under the EIR solely in relation to an environmental assessment that another public authority had commissioned it to carry out on its behalf. Through contract, the other authority had delegated its regulatory duty to carry out the assessment, with the result that ERM was held to have exercised functions of a public nature relating to the environment under the control of a public body. As such, the company’s initial failure to provide requested information about the assessment was a breach of the EIR.

The ICO has also been prepared to extend the scope of the regime to information held by third parties in situations that might not be expected. For example, in Leeds City Council (April 2007) the Council refused a request for information about an opinion survey it had commissioned, on the basis that it did not hold the information requested. However, the ICO decided the market research company that carried out the survey held individual questionnaire responses, which formed part of the requested information, on behalf of the Council. This was broadly because the Council had retained the contractual right to inspect the documents for quality monitoring purposes (although there seems to have been no expectation that these individual responses would be provided to the Council). As a result, the Council was directed to disclose information in the possession of a third party company in circumstances that neither party seems to have anticipated.

Evidence-based support required for invoking exemptions

Guidance published by the government refers to the importance to public authorities of analysing and articulating the reasons for relying on exemptions when responding to applicants, and this has been reinforced in the case law. Generally, experience has shown that public authorities should be careful to substantiate any reliance they place on exemptions when refusing requests.

In one of its early freedom of information decisions, John Connor Press Associates Ltd v ICO (January 2006), the Tribunal considered whether the National Maritime Museum was right to have withheld information about payments it had made to an artist on commercial prejudice grounds (section 43 FOIA). In concluding it was wrong to have done so, the Tribunal stated that, when considering whether disclosure would be ‘likely’ to prejudice commercial interests under section 43, public authorities must identify a real and significant risk of prejudice, rather than a hypothetical or remote possibility.

In Oxford City Council (February 2007), the Council cited reliance on section 43 when withholding information about the sale of some land. However, the ICO found that the Council had provided so little evidence to support its contention that commercial interests would be adversely affected by release of the information that it could not accept the exemption was engaged at all. As a result, there was no need for any public interest arguments to be considered. The ICO also pointed out defects in the Council’s refusal notice, in particular that it had failed to provide an adequate explanation for the refusal.

Importance of the public interest test

Another broad theme that has emerged from the case law is the emphasis placed by the ICO and Tribunal on public interest considerations when analysing the way exemptions have been applied. This trend has even extended to consideration of section 41 FOIA (information provided in confidence), which is an ‘absolute’ exemption and so is not subject to the statutory public interest test that applies to ‘qualified’ exemptions under the FOIA.

The Tribunal considered this exemption (among others) in detail in Derry City Council v ICO (December 2006), which involved the Council’s refusal to disclose information about a contract it had entered into with Ryanair regarding the airline’s use of Derry City Airport. This decision was significant for a number of reasons, including the Tribunal’s finding that a concluded contract between a public authority and a third party does not fall within section 41, broadly on the basis that it is created by the parties rather than constituting information obtained by the authority from the third party. The Tribunal went on to consider how, under the law of confidentiality, the defence to a claim for breach of confidence based on the public interest in disclosure affected the application of section 41. It concluded that the public interest defence operated in a very similar way to the public interest test under the FOIA. As a result, it seems that public authorities should carefully consider the public interest arguments in favour of disclosure when relying on section 41, despite this being an absolute exemption. This means there might often be little difference in practice between seeking to rely on this exemption rather than on section 43 (commercial interests).

The significance of public interest factors has also been emphasised in the context of section 36 FOIA, which exempts information from disclosure where its release would, or would be likely to, inhibit the free and frank provision of advice or the free and frank exchange of views for the purposes of deliberation or would otherwise prejudice, or be likely to prejudice, the effective conduct of public affairs. This qualified exemption was considered in detail by the Tribunal in Guardian Newspapers Ltd and Heather Brooke v ICO and BBC (January 2007), which involved a request for disclosure of the minutes of the BBC governors’ meeting following publication of the Hutton Inquiry report. In its decision, the Tribunal overruled the ICO to conclude that the BBC should disclose the minutes. In reaching this decision, the Tribunal considered (among other things) the law on the balance of the public interest where section 36 applies. It found the following.

The ‘default setting’ is in favour of disclosure. Even though there is no express presumption in favour of disclosure in the FOIA (as there is in the EIR), there is an assumption built into the FOIA that disclosure is in itself of value and in the public interest, to promote transparency and accountability.

As a general rule, the public interest in maintaining an exemption diminishes over time. In this case, the requests were made more than a year after the relevant meeting and at a time when the matters the meeting had discussed were no longer the subject of deliberations.

Importance is not the same as sensitivity. On the facts the BBC overstated the degree of sensitivity associated with subject matter of the very highest importance. What might be regarded as less important information (such as prospective staff cuts) might be far more sensitive.

The principles set out in this decision have since been cited by the ICO in numerous decisions involving the application of the section 36 exemption.

Our advice

Over the last year we have given advice to a range of commercial bodies and public authorities on the operation of the FOIA and the EIR. This has included the following.

Advising businesses on protecting their information when dealing with public authorities.

Advising on the application of exemptions and the public interest test in a range of different situations. Drafting contractual provisions to deal with the effect of the FOIA and the EIR on contractual confidentiality clauses.

Advising public authorities on responding to information requests and handling internal reviews. Setting up systems for public authorities to enable them to deal efficiently with information requests