Busy autumn ahead for Information Tribunal

A look at the cases in the pipeline for the Information Tribunal shows it is going to be a busy autumn for the court this year.

Hopefully the rulings should put some markers in the sand about what is and is not allowed to be exempted from disclosure under the Act.

The full list of cases has just been updated and can be found [here], but I’ve highlighted a few that I think are potentially the most interesting.

Royal Mail

What is the Post Office's management consultancy bill?

Royal Mail – 10^th/11^th Sept – Here the Information Commissioner ruled the amount spent on management consultants by the Post Office over the last five years should be disclosed despite protestations that the statistics should be covered by S.43 (Commercial Interests). Interesting as I can’t think many FoI officers would agree with the Royal Mail’s position on this one. The Commissioner decision was that the information was not covered by S.43 and didn’t even go on to examine the public interest test IF the exemption had been in play. [FS 50178376]

Department for Business, Enterprise and Regulatory Reform (BERR)

Protestors at the EDO factory

 

 

Department for Business, Enterprise and Regulatory Reform (BERR) – 22^nd/23^rd Sept – This could be a lively hearing in that it relates to the export licences granted to a company called EDO MBM Technology Ltd. This Brighton-based Aerospace Engineering Company, has been the subject of a campaign by local pressure groups who alleged that it had supplied Israel with military aircraft components. There have been a number of demonstrations and protests at the firm’s headquarters. This appeal relates to an attempt by an applicant to get hold of the export licences granted to EDO. The Commissioner agreed with BERR’s ruling on the matter that the information was covered by S.41 (Information Provided in Confidence). [FS 50180838]

Department for Culture, Media and Sport

Department for Culture, Media and Sport – 9^th/10^th Nov – This relates to internal Government memos on its casino policy, which changed a number of times. Here the Information Commissioner rejected arguments that documents should not be disclosed because the were covered by S.35 (Formulation of Government Policy) and S.43 (Commercial Interests). [FS 50160256]

Civil Aviation Authority (CAA)

The CAA has responsibility for ensuring air safety in the UK

Civil Aviation Authority (CAA) – 22^nd/23^rd October – I have written about this case before [Flight of Fancy shot down by ICO] where the CAA is refusing to issue safety reports on a cargo airline. It has claimed a S.31 (law enforcement) exemption but the Information Commissioner kicked that argument into touch saying the CAA had not shown how releasing such documents would prejudice its affairs. [FS 50168527]

Higher Education Funding Council for England (HEFCE)

The student accommodation didn't quite look like the brochure pictures

Higher Education Funding Council for England (HEFCE) – 16^th November – In this case the HEFCE doesn’t want to disclose the database it holds on the make-up and quality of university buildings. It claims the information is covered by a S.41 (Information Provided in Confidence) exemption, but the Commissioner ruled against the authority. Again I have blogged on this case in the past [Uni database to be opened to public scrutiny] and noted the Commissioner ruled the information was not covered by the exemption as there would be no ‘detriment’ to the universities who supplied it. [FS 50188864]

University of Central Lancashire

A student preparing herself for the Homeopathy practical?

University of Central Lancashire – 3^rd/4^th and 5^th of November – Pack your healing crystals and make sure you sleep on lay lines as this one is all about the ‘science’ of homeopathy. This case was brought by real scientist David Colquhoun, professor of pharmacology at University College London, who wanted all the papers relating to its homeopathy course. The university refused claiming the info was covered by S.36 (Prejudice to effective conduct of Public Affairs), S41 (Information Provided in Confidence) S.43 (Commercial Interests) and S.21 exemption (available by another means) on the basis that the applicant could pay to enroll on the course and after shelling out almost £10,000 over three years he could view the course documents. The Information Commissioner again rejected the University’s arguments and ordered the documents to be disclosed. The university has refused to back down and will now take its arguments to the druids’ court, sorry I mean the Tribunal. This is an interesting case in that it is at the focus of very public battles between so-called scientists and those that have been dubbed ‘bad-scientists’ in that they hold pseudo scientific beliefs. These arguments are now being hammered out in the libel courts and here at the Information Tribunal, which many would argue is not the proper use of these institutions. Again I have written on this topic before at [Details of “Bad Science” BSc to be revealed]. The Information Commissioner’s decision on the case can be found here [FS 50140374]

Uni database to be opened to public scrutiny

The student accommodation didn't quite look like the brochure pictures

A database which holds details on the state of repair of every university building and the cost of upgrading them will be opened up to public inspection following a decision by the Information Commissioner.

The Higher Education Funding Council for England (HEFCE) has failed in a bid to keep the database secret on the basis it was exempt from disclosure under S.41 (breach of confidence) of the Freedom of Information Act.

Following an appeal to the Information Commissioner’s Office (ICO) a decision notice (link) has been issued stating release of the information would not be an actionable breach of confidence.

The appeal was linked to a complex request for information about statistics held on a database by the HEFCE that were provided to it by all Higher Education Institutions in England.

In the database property such as halls of residences, lecture theatres and libraries have been categorised on a sliding scale from Condition A to Condition D. These results are then fed from the institutions to the HEFCE which maintains the database.

The HEFCE said that it could not give the information to the applicant as to do so would be a breach of confidence.

Following a protracted exchange between the ICO and HEFCE the Information Commissioner decided the data had the quality and obligation of confidence but refused to accept that release would result in a detriment to the bodies that supply the statistics.

The HEFCE successfully argued there was an obligation of confidence as its documents sent out to universities and colleges stated: “The Funding Council treat all information they receive from individual institutions as confidential unless it is collected specifically for publication.”

But the HEFCE’s arguments on detriment met with less favour. It claimed release of the data would:

• Undermine its own database as institutions would no longer submit statistics - The ICO said this argument was “tenuous” and he “was not convinced”.
• Individual institutions might find it harder to recruit staff and students if their reputation was damaged by the publication of the data  - The ICO said the information was “high level statistical data” which in his opinion was too high for an inference to be drawn which would impact on a university’s ability to recruit staff and students.
• Institutions could end up besieged by approaches from suppliers offering their services to upgrade and repair their buildings - the ICO refused to accept this argument and even noted that the HEFCE agreed some universities might even benefit from this process.

In conclusion the Information Commissioner said: “Therefore after considering the arguments and evidence presented by the HEFCE the Commissioner does not believe that the disclosure of the information requested in this case would have a detrimental impact on the interests of the confiders. As such he is not persuaded that the disclosure of this information would result in an actionable breach of confidence. For that reason he does not believe that section 41 is engaged.”

Editor’s Note: This decision notice brings up some interesting points, particularly when viewed alongside the other recent S.41 exemption ruling in the case of the Department of Business, Enterprise and Regulatory Reform (BERR). See my post on the subject ‘The answer to the question…’ In this case the Commissioner accepts that an obligation of confidence is created by the wording associated with the documentation that is part of the disclosure process. However, he sees above this and rules that there is no real detriment to the institutions so no actionable breach of confidence exists. This is important because it means any organisation that holds third party data cannot rely on S.41 any more without looking into the specifics of what the data is. My own experience of this is that organisations often employ S.41 on the basis they know the third party would rather they didn’t reveal the information but without examining if a genuine detriment would occur and then failing to establish if there was a public interest, under breach of confidence, for that bond to be broken.