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Brexit amendment to FOIA

FOIMan highlights a new amendment to FOIA resulting from the UK’s planned departure from the European Union.

It’s all getting real isn’t it? Aside from all the shenanigans in the Conservative Party this week, we’re seeing more and more of the practical application of Brexit from government. And the Freedom of Information Act (FOIA) isn’t immune from this.

Under the European Union Withdrawal Act 2018, ministers can make amendments to legislation to ensure that it is compatible with the terms of Brexit using secondary legislation. Yesterday the government outlined changes that would be made using this mechanism to the Data Protection Act 2018 (and through that, the application of GDPR in the UK) if the UK leaves the EU with no deal. (The Information Commissioner has also issued guidance on how no deal will affect data protection, especially when it comes to international transfers of personal data.)

In truth, FOIA isn’t massively affected by Brexit. But it has been necessary for the government to lay regulations making one very specific amendment. Section 44 of FOIA provides an absolute exemption from the duty to provide information or confirm its existence in circumstances where other laws prevent disclosure. It avoids a conflict between FOIA and other laws. Specifically, s.44(1)(b) of FOIA specifies that information will be exempt from disclosure if it:

is incompatible with any EU obligation

Yesterday the Cabinet Office laid regulations before Parliament which simply replace the reference to ‘any EU obligation’ with ‘any retained EU obligation’.

And there we are – FOIA is ready for Brexit when (or if) it comes.

 


The Freedom of Information Officer's Handbook, Facet PublishingA reference guide to the FOIA exemptions is provided in the Freedom of Information Officer’s Handbook by Paul Gibbons, which will be published in January 2019. Readers and subscribers to this blog can pre-order copies direct from the publisher with a 30% discount (so it will only cost you £41.99) by emailing info(Replace this parenthesis with the @ sign)facetpublishing.co.uk and quoting the code FOIMAN (do not supply payment card or bank account details by email). The publisher’s distributor will then contact you to arrange payment and discuss despatch instructions.

FOI enforcement developments

FOIMan notes a couple of developments on FOI enforcement.

A brief note of two important enforcement actions taken by the Information Commissioner’s Office (ICO) in the last few weeks.

First off, the Royal Borough of Kensington and Chelsea has been given a Monetary Penalty Notice of £120,000 for accidentally disclosing personal data. The FOI Officer apparently failed to notice that a spreadsheet contained a pivot table which held personal data in it. This is similar of course to a previous MPN given to the London Borough of Islington a few years ago. The council was criticised in particular for failing to train its FOI Officers adequately.

Even more notably, and in a first, it was reported this week that the ICO is prosecuting a councillor with Thanet District Council in Kent under s.77. Whilst this provision has always been there to sanction the destruction, hiding or alteration of records to avoid FOI, it has never been used by the ICO. The case will be heard in September, so one to watch.

News Flash: new Information Commissioner announced

The Department for Culture, Media and Sport has announced that their nomination to take over from Christopher Graham is Elizabeth Denham.

NEWS1Ms. Denham is currently the Information and Privacy Commissioner in British Columbia, Canada. This would be the first time that a UK Commissioner would be appointed from overseas. It won’t be the first time that we will have a female Information Commissioner – Elizabeth France was the Commissioner at the time that both the Data Protection and Freedom of Information Acts received Royal Assent.

The current Commissioner has welcomed the nomination:

“Elizabeth Denham is an inspired choice for Information Commissioner. As commissioner for both privacy and access to information in a similar jurisdiction, Elizabeth has shown independence of judgement and toughness of character. She will be a great leader for the ICO as it adapts to the demands of the new data protection framework – and she’ll be an effective upholder of information rights both in the UK and internationally.”

Ms. Denham will have to go through a pre-scrutiny hearing from the DCMS Select Committee, but if all goes well, the Queen will appoint the new Commissioner by Letters Patent later this year. Once this process is complete, the new Commissioner will take office in June this year. Following changes made by the Protection of Freedoms Act in 2012, Elizabeth Denham can serve a single 7 year term as Information Commissioner.

 

1 February launch for Isle of Man FOI

FOIMan highlights the arrival of freedom of information to the Isle of Man.

Tynwald Hill

Tynwald Hill, where the Isle of Man’s laws are annually proclaimed to the people in an open government tradition dating back a millennium

Monday, 1 February, is a big day for a small country in the British Isles. The Isle of Man’s Freedom of Information Act received Royal Assent last year and the first requests under it will be made on Monday. At first only the Cabinet Office and the Department of Environment, Food and Agriculture (DEFA) will have a duty to respond to them, but by January 2018 all public bodies on the Island will have to do so.

Unless you are one of the 85,000 or so who live on the Island you won’t be able to make requests – one of the mechanisms designed to prevent FOI disrupting the provision of services by a relatively small public service. But Islanders will for the first time have a statutory right to information, and existing openness provisions, including the Code of Practice on Access to Government Information, which was introduced in 1996, will remain in place.

Despite the fact that most of us won’t directly benefit from this new right of access, any new piece of FOI legislation is a cause for celebration, and the Isle of Man’s law contains some interesting innovations which I’ll be examining in a forthcoming article. Whilst the FOI Commission continues to scrutinise the UK Act, it is interesting to look at how other jurisdictions tackle the concerns (however reasonable or otherwise we may consider them) that the Government here has raised. The very existence of the FOI Commission has influenced debate in the Isle of Man and no doubt elsewhere.

I’ve provided some assistance to the Isle of Man Government culminating most recently in the delivery of training to Cabinet Office and DEFA staff. Earlier this week I was asked to take part in briefings to the Island’s media and you can hear Manx Radio and 3FM‘s reports, and watch an interview with me for Manx.net to get a sense of what FOI might mean for the Isle of Man.

Merry Christmas

FOIMan wishes all his readers and clients a very happy Christmas.

foiman-santaThe last few months have been a bit quiet here on the blog – basically because I’ve been busy delivering training! Good news in many ways, but I do miss blogging so I will try to bring you more blogs and content in 2016. In the meantime, I’ve added the latest issue of FOIMan News to the Resources section of the site if you don’t already subscribe.

2016 looks like being a fascinating year in the world of information rights, what with the new Data Protection Regulation becoming law and the FOI Commission due to report. Keep visiting the FOIMan site and subscribe to FOIMan News to be kept up-to-date throughout 2016.

For now, have a fabulous Christmas and all the very best wishes from me for the new year ahead.