Archive for The Exemption Index

The Exemption Index: Section 42 – the exemption for legal professional privilege

Exemption Index logoFOIMan examines the exemption protecting legal advice.

Summary

If you’re being sued, you will no doubt want to seek legal advice. Even if you’re not, but you want to make sure your activities are compliant with legal requirements, you would want to seek such advice.

There is an established convention that such advice is confidential, with good reason. If you ask for advice, and the advice comes back saying that your case is weak, you don’t want those who might litigate against you to get access to it. It’s up to their lawyers to make the case against you. If you thought that adverse advice might be disclosed, you probably wouldn’t ask for it in the first place, as it could leave you in a weaker position.

That’s why there is an exemption to cover this. But perhaps surprisingly, it is subject to a public interest test. So in some cases, it might be disclosed.

Information affected

Advice (and requests for advice) from solicitors, barristers or legal executives.

Things that FOI Officers need to know

  • there are 2 types of information covered by legal professional privilege – litigation advice and legal advice
  • be clear who the client is, and who is giving the legal advice
  • keep it to yourselves – if the advice is shared beyond those it is given to, there is a risk that it could be said that the advice is no longer confidential (and therefore no longer protected by privilege)
  • information that already existed before the advice was sought (to give an FOI-world example – a document that has been requested under FOI that you have sent to an in-house lawyer for their opinion on whether an exemption might apply) will not be protected by legal professional privilege, but if the information (perhaps in the form of an attachment or enclosure) has been prepared specifically to support the legal advice then it would attract protection.
  • if it is legal advice that has been kept confidential there is a very good chance that it will be exempt – whilst there is a public interest test, both the Commissioner and Tribunals agree that there is a substantial public interest in maintaining legal professional privilege
  • That said – there are factors that might weigh in favour of disclosure – see below.

Things that requesters need to know

  • whilst it is recognised that there is a substantial public interest in maintaining privilege, the very fact that s42 is qualified means that in some circumstances legal advice will be disclosed
  • as always, timing is a factor – if the risk of litigation has lessened, then there will be less of a public interest in maintaining the exemption
  • if the advice is not on an issue affecting individuals, it has been argued that the public interest in withholding it will be lessened
  • if the substance of the advice has previously been disclosed in an unrestricted manner, it may be that firstly legal professional privilege may not apply; but that even if it did, the public interest in withholding it is reduced.

Essential case law

Recommended reading

The Exemption Index: Section 43 – the exemption for commercial interests

Exemption Index logoFOIMan examines the commonly used exemption protecting information which if disclosed would prejudice commercial interests.

Summary

You’re a public authority and you want lots of companies to bid for your contracts so that you can ensure that you pay as little as possible for a good service. In order to ensure that the company you hire knows what it’s talking about, you need them to give you lots of information about their methods, and what they in particular can bring to the contract. But you’re worried that FOI will scare them off because anything they give you could become fair game for their competitors.

Then imagine yourself on the other side of a commercial venture. Your company has a great opportunity to pick up a valuable public sector contract. But dare you entrust your methods – which have been developed at great expense and through years of experience – to this public body? If your competitors got hold of your methodology and pricing structure, your advantage over them will be wiped out overnight. You’d be back to square one.

These concerns are what section 43 of the Act is designed to allay. The exemption provides a way to block disclosure of information that will harm the commercial interests of both public bodies and other organisations that they do business with. But it is a qualified exemption – subject to a public interest test – so there are no absolute guarantees…

This exemption is closely related to section 41 – the exemption for information provided in confidence, and may well apply where the specific requirements of that exemption mean that it can’t be used to protect documentation.

Information affected

Information that would (or would be likely to) affect the commercial interests of any party – including the public body itself. Could include documentation relating to procurement activities – contracts, tender submissions, sales figures, an authority’s purchasing position, but also things like a public body’s own marketing activities or products it has developed in a competitive market-place (eg course documentation in the higher education arena – though see comments below).

Things that FOI Officers need to know

  • the first subsection provides protection for “trade secrets”. This isn’t defined in the Act, but one Tribunal gave the example of the secret recipe for Coca-Cola (para 52). We might also refer to the “Colonel’s secret recipe” or Tony the Tiger’s special formula (if you’re of a certain age). Basically, it should be information used in business that is highly confidential, which gives its owner a competitive edge. Importantly, it shouldn’t be possible for someone to discover or reproduce it (para 53). There isn’t a great deal of case law on this subsection, perhaps because in most cases such information would be encompassed by the absolute exemption at section 41.
  • Some people think that the “trade secrets” exemption is an absolute exemption – this isn’t true. It is necessary to conduct a public interest test, even if you are convinced that the information concerned is a “trade secret”.
  • The more commonly used subsection at section 43 is the one for where disclosure “would, or would be likely to, prejudice the commercial interests of any person.”
  • The first stage in applying this subsection of the exemption is to establish whether the information is commercial in nature. “Commercial interests” can be interpreted broadly (para 42) (though see the discussion of financial interests v commercial interests under Things that requesters need to know below). Activities relating to the purchase or sale of goods or services (p4) can be described as commercial; but also anything affecting an organisation’s ability to be competitive in a market place. It is perfectly feasible for a public authority, even one that operates as a charity, to have commercial interests (para 31).
  • Given that both companies selling goods or services to public authorities, and the authorities themselves, can have commercial interests, it is important to state whose commercial interests you think will be prejudiced by disclosure. It may, of course, be both in some circumstances.
  • The next step is to set out what prejudice you envisage (p6) – in other words, what is the harm in disclosure? The widely accepted approach to this is set out in Hogan v IC, and summarised in the Commissioner’s guidance. You must remember to state how likely you consider the prejudice to be – choose between “would” and “would be likely to”.
  • If you are arguing that a third party – for example, a contractor – will be prejudiced by disclosure, make sure you consult them. The Commissioner and Tribunals have made clear (para 24) that they want to see evidence of the third party’s views.
  • As always, you must set out which information the exemption applies to. In relation to procurement activities, guidance issued by the Office of Government Commerce (OGC) has been recognised by Tribunals as being a useful guide as to what should and shouldn’t be withheld. One Tribunal indicated (para 87) that authorities should have to justify departing from this guidance (especially if withholding information that the OGC guidance indicates can be disclosed).
  • This subsection of s.43 is also subject to a public interest test. The OGC guidance referenced above states that: “[t]here is a strong public interest in showing who public money is being spent with, how much public money is being spent…and how the supplier arrived at the price…”.  Against that, many of the arguments an authority sets out as to the prejudice that disclosure would cause may well also serve as arguments as to why withholding the information would be in the public interest. For example, there is a public interest in public bodies being able to contract services effectively, so anything which prevents that (such as companies being fearful that commercially sensitive information will be disclosed to their competitors) will not be in the public interest. Generally speaking, it is not in the public interest for the market for particular goods or services to be distorted, through, for example, a company’s ability to compete being damaged. In the Student Loans Company case (para 55), the Tribunal took the view that damage to the ability of the company to pursue debtors was a valid argument in support of the exemption.
  • One area that has proved controversial is course materials. Whilst generally recognising that the organisation producing them has commercial interests (para 31), the Tribunals have proved reluctant to accept that disclosure would be likely to have a prejudicial effect. Universities have struggled to make this argument, but training materials developed by other public bodies are also difficult to withhold. The Commissioner does, however, appear to accept that in some circumstances, the exemption will apply to course materials – particularly where the materials are unique and the producer of the materials is operating in a competitive commercial environment.
  • As with many exemptions, there is the option to “neither confirm nor deny” whether information is held if it would or would be likely to prejudice the commercial interests of any party.

Things that requesters need to know

  • First off, has the public authority applied the exemption correctly? One common mistake is the conflation of “commercial” with “financial” interests. In Department for Work & Pensions v IC & Zola, the Tribunal agreed with the Commissioner in stating that possible increased expenditure on benefits was a financial interest, not a commercial one.
  • It’s not enough that there are commercial interests affected. The public authority has to demonstrate that they would, or would be likely to be, prejudiced. This was the problem that University of Central Lancashire had.
  • Public authorities should not apply “blanket” exemptions to whole contracts. It is necessary for them to analyse which sections need to be withheld (see the analysis at para 90), and to disclose the rest.

Essential case law

Recommended reading

FOI Man says…

The Exemption Index: Section 40 – the exemption for personal data

Exemption Index logoFOIMan looks at how the exemption at section 40 of the Freedom of Information Act should be applied.

Summary

Accessing information is a good thing. We’re all pretty agreed on that as a general principle. But there are some exceptions. Perhaps the most obvious need for an exception is where disclosing information would impact someone’s right to privacy. This is where section 40 of the Freedom of Information Act comes in.

Information relating to living, identifiable, individuals – or personal data – is protected by the Data Protection Act (DPA). That legislation established a framework for the handling of this data. Furthermore, it also gave individuals a right of access to information relating to themselves. Section 40 acts as the fulcrum around which FOI and DPA rights revolve – it prevents them from being in conflict.

This exemption, and the issues around personal data, are extremely complex. It is the most cited exemption, and there are many decisions relating to it. It is therefore impossible to provide a comprehensive description in this format. What follows is an attempt to highlight the key considerations and signpost other sources of guidance.

Information affected

Information falling within the definition of personal data in the DPA – ie information relating to living identifiable individuals.

Things that FOI Officers need to know

  • The first thing to consider is whether the information is personal data. Without getting into a long technical discussion, this has often been a source of debate, not least since the (in)famous Durant ruling, which suggested that personal data should be narrowly defined. This year’s Edem case, looking at whether the names of two officials were personal data, has offered some comfort by establishing that names can be personal data, at least in specific contexts.
  • Clause 1 of Section 40 exempts information relating to the requester from disclosure under FOI. It is still accessible via the subject access right of DPA. If you can do so, handle it as a subject access request. Strictly speaking, you still have to answer a request made under FOI within 20 working days, so the ICO advise letting the requester know what you are doing within this timeframe (even if you then use the full 40 calendar days available for subject access requests). Before answering a subject access request you need to be assured as to the requester’s identity (so you may need to ask for proof of identity), and if your organisation charges a fee for DPA requests, you will want this before taking action.
  • Requests for personal information relating to other individuals may be refused if disclosure would breach any of the Data Protection principles listed at Schedule 1 of DPA; or if an individual has exercised their DPA section 10 right (to prevent processing likely to cause damage or distress); or if the information is exempt from subject access rights under an exemption in Part IV of DPA. In the latter two cases, section 40 is a qualified exemption, so a public interest test would need to be carried out.
  • In practice, the most common reason for applying section 40 is that disclosure would breach the first Data Protection principle. This principle requires that anything you do with the data is “fair and lawful” and also that it can be justified using one of the conditions in schedule 2 of DPA, and if falling within the definition of “sensitive personal data” at section 2 of DPA, a condition at schedule 3. What does this mean?

o   lawful means that if there is an Act of Parliament, or a common law duty (such as a duty of confidence), to the effect that such information should not be disclosed, then that must be obeyed

o   fair means considering the expectations of the affected individual(s) and the potential impact of disclosure on them

o   if the information is sensitive personal data (for example, information about a person’s health, religion or ethnicity), it can only be disclosed with their explicit consent or if they have already made it public

o   consent is a possible justification for disclosure if it is personal data not falling under the definition of sensitive personal data. Alternatively, disclosure could also be justified if it is necessary in pursuing the legitimate interests of the public body, or the requester (and potentially any wider audience), as long as it would not cause unwarranted prejudice to the rights and freedoms or legitimate interests of the affected individual – in effect (in an FOI context), this is like a public interest test, balancing the rights of the individual against the requester and the public.  Note, though, that the information can only be disclosed when relying on this condition if disclosure is necessary to meet the interest in disclosure.

  • Most of the time, personal data will not be disclosed. However, the Information Commissioner, the Government and others have over time made clear that some personal information relating to public employees’ public roles in particular should be disclosed. For example, the latest version of the Local Government Transparency Code requires salaries of council staff earning over £50,000 to be made public. Clearly there is a consensus that accountability of (especially senior) public officials is a legitimate interest. Interestingly the Code only requires salaries to be disclosed in £5,000 bands – disclosure of specific salaries is not thought necessary to achieve this accountability. In one case, though, the First Tier Tribunal ruled that disclosure of a Chief Executive’s specific salary was necessary.
  • Even senior officials have a reasonable expectation of confidentiality when it comes to severance arrangements, unless there is a good argument to the contrary.

Things that requesters need to know

  • If data has been successfully anonymised to the extent that the requester would not be able to identify the individual(s) (even if the public authority could still identify them using other data in its possession), then the data is not subject to the exemption and can be disclosed. So it may be worth pressing a public authority that refuses a request using section 40 to see if they can release data in an anonymised form.
  • The more senior and/or public facing an official, the more likely it is that personal information relating to their public role should be disclosed. This is relevant in relation to public employees, but also in respect of politicians. This might be salary information, expenses information or contact information, for example.
  • A legitimate interest can be a private interest.

Essential Case Law

Corporate Officer of the House of Commons v Information Commissioner & Leapman, Brooke & Thomas, EA/2007/0060-63, 0122-23 & 0131

Trago Mills (South Devon) Limited v Information Commissioner, EA/2012/0028

Edem v Information Commissioner & Financial Services Authority [2014] EWCA Civ 92

Recommended Reading

Information Commissioner’s guidance on personal information, v1.3, August 2013

Information Commissioner’s guidance on requests for personal data about public employees, v1.2, May 2013

What’s in a name? Court of Appeal gives judgment in Edem, Panopticon Blog, February 2014

FOIMan says…

Should a public body disclose details of requests made by a named individual? April 2012

Exact salary should be disclosed says Tribunal, April 2013

The Exemption Index: Section 22A – the exemption for unpublished research data

Exemption Index logoFOIMan applies The Exemption Index to the new exemption for research data.

Summary

For the first time in a little while we have a new exemption in the Freedom of Information Act. There is no case law, and no guidance – yet – from the Information Commissioner. So I’m going to gingerly feel my way through the darkness and give you some first impressions of what this exemption will mean.

We have some clues. The exemption came about as a result of lobbying from universities during the post-legislative scrutiny. As usual with any legislation we can see what Ministers said during the passing of the Act in Hansard. And in this case we also know that the exemption is based on a similar one in the Scottish legislation – so we can see how that exemption is applied north of the border.

David Willetts, Minister of State in the Business, Innovation and Skills Department, explained during the Intellectual Property Act’s passage through Parliament that:

“The new exemption…should give substantial reassurance to the academic community that important research and related information obtained or derived from ongoing research programmes will receive appropriate protection under the FOI Act.”

Information affected

Research data where there is an intention to publish a report of the research and disclosure would or would be likely to prejudice the research, participants in the research, or the interests of a public authority.

Things that FOI Officers need to know

  • There is nothing to say that only academic institutions can benefit from this exemption – any public authority conducting research could use it.
  • The exemption is potentially very broad. This is implicit in the fact that it exists in addition to the section 22 exemption. The very fact that Parliament thought that a further exemption was necessary indicates that it provides more protection than that original exemption.
  • David Willetts confirmed this in Parliament when he said “[s.22A] builds on the protection offered by section 22 by providing specific protection for material that is part of a research programme whose results are intended for publication. But the protection it offers is not just for the results; it extends to any information that is obtained in the course of, or is derived from, a research programme.” The implication appears to be that the exemption will cover any information related to the research programme – even information that will not be published as part of the intended publication.
  • There is no time limit for publication given in the section 22A. This is also the case for section 22, though the length of time before publication has often been a factor that the Information Commissioner has focussed on when assessing the public interest in disclosure. My suspicion is that the Commissioner and Tribunals will accept that the period of pre-publication will in practice be longer for research information. Partly this is due to the distinction that Parliament has made for this data. The exemption is an explicit recognition that such data may need to be kept – unpublished – for much longer periods. This is even more obvious in the Scottish legislation on which the exemption is based. The future publication exemption is time-limited to an intention to publish within 12 weeks. No such time-limit applies to the research data equivalent.
  • The Scottish Commissioner’s guidance on the equivalent exemption in FOISA suggests that if at any point a decision is taken not to publish the research, then the exemption will cease to apply.
  • Note that the exemption is a prejudice-based exemption. As with other similar exemptions, it will be necessary to demonstrate firstly that the exemption is relevant – is it related to a research programme; secondly what the prejudice or harm would be; and thirdly how likely that prejudice will be – is it a case of “would” or “would be likely”.
  • It is subject to a public interest test – so you’ll need to balance the arguments for and against as with other qualified exemptions.

Things that requesters need to know

  • Even in Scotland, the equivalent exemption has not been tested – there are no decisions relating to this that have been taken by the Scottish Commissioner. So we’ve got very little to go on here.
  • The Scottish Commissioner’s guidance points out that during parliamentary debate in Scotland, it was stressed that the intention was that the exemption should be used for “genuine academic research” as opposed to “simple data collection or the analysis of such data”. As I’ve written above, there is nothing in the way the UK exemption is worded to clearly rule out its use by public authorities outside academia. However, it may be that future challenges could turn on this definition of “research programme”.

Essential case law

  • As indicated, there is a sparcity of case law to help with this.
  • Decisions mentioned in the Section 22 Exemption Index may be of some help – especially those relating to academic bodies.

Recommended reading

FOI Man says…

The Exemption Index: Section 22 – information intended for future publication

Exemption Index logoFOIMan looks at the qualified exemption covering information intended for future publication.

Summary

Imagine that you are a famous author. You’ve spent months, if not years, working on your latest novel. Another draft and all the typos will be gone. Another draft and it will be perfect. But not quite yet. Then you get a call from your publisher.

“Sorry,” they say, “but one of your fans has requested that we send them a copy of your book now.”

“But, you can’t let them, it’s not ready!”

“Well, we have to, it’s the law.”

You’re going to be pretty miffed to say the least. Public authorities publish all sorts of information all the time. Often reports involve meticulous research, drafting and preparation. So potentially FOI could place them in the same position as our author. That’s what the exemption for future publication is all about. Protecting the drafting process.

Of course, public authorities could abuse that. They could just use the exemption to delay the release of any information that they don’t want to disclose right now because it is politically inconvenient. So the exemption is drafted – and interpreted – in a way that limits its use. And once the information has been published – it no longer applies to any of the affected information.

Note that a new exemption covering future publication of research data (section 22A) will be introduced by the Intellectual Property Act which at the time of writing is awaiting Royal Assent.

Information affected

Information that the public authority already intends to publish at a future date at the time that the request is received.

Things that FOI Officers need to know

  • There must be a settled intention to publish the information at the time the request is received.
  • Drafts and data collected as part of the preparation of the publication can potentially be withheld using this exemption – up to the point when the information is published.
  • The exemption doesn’t just cover formally published information – it can be used for notes of a speech that will be broadcast, for example, or information that will be made available in a Record Office/archives for inspection.
  • A definite date is not required. However, the Commissioner takes the view that timing is a key factor when deciding whether withholding the information is “reasonable in all the circumstances” (FS51021803, para 60).
  • Publication means publication by anybody – it doesn’t have to have been drafted by the public authority itself.
  • In order to demonstrate that withholding the information is “reasonable in all the circumstances”, make sure there is evidence that this is not just a knee jerk reaction – have you at least considered the possibility of disclosing the information?
  • It’s easy to forget that this is a qualified exemption – you have to carry out a public interest test. The Commissioner says that the more distant or uncertain the date of publication, the greater the public interest in disclosure. Arguments against disclosure that can be effective include that it would require staff to spend time on accelerating publication rather than other activities in the public interest; or that confidence in the process may be undermined; or that it might result in inaccurate, unchecked information being disclosed prematurely, misleading the public; or that disclosure might jeopardise longer-term value of the information (eg if there is an intention to publish commercially – see para 21 of QMU v IC).

Things that requesters need to know

  • Publication means to the general public. If the public authority is only intending to make the information available to a restricted audience, then the exemption doesn’t apply.
  • The exemption only applies to information that the public authority intends to publish. Many, if not most, Commissioner decisions to overturn s.22 refusals are done so on this basis.
  • If any of the information was originally collected for publication, but has subsequently been rejected, it will not be covered by the exemption. If the authority is not sure which information will be published then the exemption does not apply (FS51021803, paras 61-63).
  • The exemption is subject to a public interest test, so you should always challenge a response where it appears that this has not been carried out. Arguments in favour of disclosure that may be successful include that publication will be significantly delayed; or that early publication will not unduly disrupt the authority’s plans.

Essential case law

Recommended reading

FOI Man says…