The Information Commissioner’s Office (“ICO”) has recently announced a tougher approach on enforcement of FOI matters. This comes at the same time as two conflicting decisions of the Information Tribunal (the "Tribunal") on the question of late reliance by public bodies on exemptions available under the Freedom of Information Act 2000 ("FOIA").

Home Office v Information Commissioner EA/2010/0011

The case of Home Office v Information Commissioner EA/2010/0011 was decided in June. In that case the Tribunal held that the Home Office was entitled to raise new exemptions in proceedings before the Tribunal, which it had not cited in its initial response to an FOIA request and that the Tribunal was obliged to consider them.

The case related to a request for the disclosure of information on the introduction of legislation abolishing successful asylum seekers' rights to back-payment of income support. Initially, the Home Office refused to provide the information, relying on section 35(1)(a) of FOIA (the development of government policy exemption). The requestor appealed to the Information Commissioner, who held that the exemption was engaged but that public interest favoured disclosure of the information.

The Home Office then appealed to the Tribunal, no longer relying on section 35(1)(a) but citing instead exemptions for internal communications (section 35(1)(b)), personal data (section 40(2)) and legal professional privilege (section 42).

The Tribunal held that certain elements of the information requested were protected by the sections 35(1), 40(2) and 42 exemptions and should not be disclosed.

The decision has attracted comment because the Tribunal held that it was not open to it to refuse to consider the late exemptions. This approach departed from the previously established position that the Tribunal had discretion to decide whether to permit late exemptions where justified and in exceptional circumstances.

The Commissioner of Police of the Metropolis v The Information Commissioner EA/2010/006

Days after the Home Office decision, the Tribunal issued a further decision contradicting its somewhat controversial approach in that case.

In The Commissioner of Police of the Metropolis v The Information Commissioner EA/2010/006, the Tribunal refused to consider late reliance by the Commissioner of Police on an exemption raised for the first time before it. The Tribunal held that there must be a "reasonable justification" to allow late reliance on an exemption as it would otherwise unfairly prejudice the requestor by making the appeal process unclear.

An unconnected appeal by the Department of Environment, Food and Rural Affairs on the same issue is currently pending before the Upper Tribunal. It is hoped this will clarify the position on late reliance, as this leaves the position unclear for both the public authority and the requesters.

ICO Gets Tougher on Enforcement

The decisions roughly coincide with an ICO press release outlining its new and "tougher approach" to enforcement of FOI matters. Mick Gorrill, Head of Enforcement at the ICO is quoted issuing a warning that: "the public bodies that continually fail to meet their legal obligations will face regulatory action…. After monitoring authorities' compliance with the Act, we will take action against those that abuse the system."

The press release focuses in several areas on timely response to FOI requests, noting that compliance with timelines is a key target. At present, between 20 and 25% of complaints made to the ICO relate in some respect to the response times of public bodies.

Consultation on Freedom of Information (Scotland) Act 2002 (FOISA)

In contrast the recent focus of FOI in Scotland has been on the question of potential extension of FOI. Following on from an announcement at the end of 2009 the Scottish Ministers have commenced a formal consultation on whether FOISA should be extended to the following bodies:

  • Contractors who build and maintain hospitals;
  • Contractors who build and maintain schools;
  • Contractors who run privately managed prisons and provide prisoner escort and court custody services;
  • Contractors who operate and maintain trunk roads under private finance contracts;
  • The Glasgow Housing Association;
  • The Association of Chief Police Officers in Scotland; and
  • Bodies used by local authorities to provide leisure, culture and sport services.

The consultation opened on 28 July 2010 and responses are requested by 2 November 2010. Full details can be found on http://www.scotland.gov.uk/consultations.