Tag Archive for Definition of held

What we don’t know

FOIMan explains why some truths we cling to about the UK’s FOIA are not quite what they seem.

A few months ago I was delivering some FOI training to a local authority (always available at competitive rates, folks!). I was explaining how far council officers were expected to go when searching for information to answer an FOI request. In particular I stated that if it was known that information had been deleted but still potentially existed on a backup, the backup should be searched.

The council’s FOI officer cautiously picked me up on my assertion. They had, they told me, had a written statement from the Information Commissioner’s Office (ICO) that contradicted me. So surely I was wrong?

The truth is that despite what we are often led to believe, there are some aspects of FOI law that are not certain. The legal system has not yet settled on the ‘right’ answer. This is the case when it comes to debates about information held on backups and whether it is considered held. In the example above, neither I nor the ICO are technically wrong; but then strictly speaking we’re not right either. We’re both interpreting the existing law, and both interpretations are arguable.

This is because English law revolves around the concept of precedent. But precedent can only be set by courts that make a decision beyond a certain stage. In a recent Upper Tribunal decision (LO v Information Commissioner, [2019] UKUT 34 (AAC) (29 January 2019)), Judge Jacobs was critical of the Information Commissioner for treating decisions of the First-Tier Tribunal (FTT) as ‘authoritative statements of the law’. Strictly speaking, they’re not. When it comes to backups, we only have rulings of the FTT to go on, so there is no definitive answer yet on that issue. Interestingly, on this issue, the ICO choose not to accept the FTT’s approach without question in their guidance.

My latest piece for PDP’s Freedom of Information JournalWhat we don’t know (which you can access here) – looks at this issue in more depth – looking at the backups query, but also a couple of other questions which have not yet been answered definitively – perhaps surprisingly. You’ll see that there are disputes between the ICO, the FTT and the s.45 Code of Practice which will only be resolved if those matters reach the Upper Tribunal. It ends by asking what questions you may have about FOIA or the EIRs – as I’ve mentioned before, we’d like to answer some of your conundrums in a future issue of the Journal.

FOIMan’s Q&As: how many emails?

If a request asks for the number of emails sent by a public body, should it exclude emails that relate to personal or political matters?

Section 3(2) of FOIA says:

For the purposes of this Act, information is held by a public authority if—

(a)it is held by the authority, otherwise than on behalf of another person, or

(b)it is held by another person on behalf of the authority.

Where it says “otherwise than on behalf of another person”, s.3(2)(a) is usually interpreted to mean that emails sent or received in a personal capacity, or party political emails sent or received by politicians and their advisors, will not be held by a public authority. A decision that illustrates this interpretation is Montague v IC & Liverpool John Moores University (EA/2012/0109, 13 December 2012).

However, if someone asks for the number of emails sent or received by a particular individual at a public body, it will not be appropriate to exclude personal or political emails from total figures on the basis that the information is not held. This is discussed in Lotz v IC & DWP (EA/2016/0150, January 2017) at para 29:

There is a distinction between the content of a personal or political email sent from a DWP email account and the fact that one has been sent which might reflect upon the use of resources within the DWP (within the Act) rather than the content of the emails (which is not).

As the decision goes on to say, it might be appropriate to withhold such information if an exemption applies, for example the exemption for personal data at s.40(2). But for the purposes of FOI, the number of emails on a public body’s email server will be information held, whatever the nature of those emails’ content.

Source: Lotz v IC & DWP (EA/2016/0150, January 2017) at para 29

 

Laws and Original Order

FOIMan comments on reports that former Liberal Democrat Minister David Laws is refusing to hand over an infamous note to the National Archives.

We’ve seen plenty of FOI cases where the dispute was about whether the public body held the information concerned. There was Gove and Mrs Blurt, but there have also been disputes involving academy chains and private contractors and others beside.

This weekend it was reported that former Treasury minister and Liberal Democrat member of the coalition government, David Laws, was refusing to hand over the infamous note from Liam Byrne, his Labour predecessor, which indicated that there was “no money left” in 2010. The Treasury and National Archives have apparently both indicated that they would like Mr Laws to hand the note over as they believe it belongs to the State.

It’s not the first time that the ownership of historical papers relating to government has been a source of dispute. One of the reasons why there was so much criticism of the purchase of Churchill’s papers with £12.5 million of National Lottery money in the mid-1990s was that many believed that some of the papers were State papers removed by him when he left office.

When is a piece of correspondence a State paper and when is it personal correspondence? It’s not straightforward and just like FOI “held” decisions it will be a matter of examining the circumstances and context.

In this case, Mr Laws has indicated that he will leave the note to the State in his will. So why is this a big deal?

Aside from the potential financial implications, there are sound archival reasons why the National Archives will be keen to take custody of the note in question.

Firstly, a national archive is resourced to preserve documents for posterity. A note written in 2010 may not seem at risk, but in an individual’s possession it might be regularly handled, exposed to sunlight, coffee and wine spillage, and inadvertent misplacement. If Mr Laws is intending to wheel it out on the after dinner speaking circuit, these are clearly significant risks. That’s ignoring any inherent weaknesses in the paper – was it written on high quality acid-free paper or on cheap recycled paper that might yellow and fade faster? The National Archives’ conservators can slow and reverse damage to documents and all the better the sooner they have access.

Secondly, provenance or context is important when it comes to historical records. If a document is in the custody of a Record Office, locked away and only made public in controlled conditions, it is easy to prove its authenticity. If it is in private possession, and not properly safeguarded, then the risk is that it’s authenticity can be questioned. Doubt may arise that this is really the note that Liam Byrne authored. Maybe it’s been edited to make it more inflammatory; perhaps it was lost and replaced with a poor copy which failed to capture its nuances. This is perhaps less easy to demonstrate in this case where the history of a single paper has been well documented, but it is easy to see how it could become a serious problem with less public government files. How could we trust that they were reliable records of what occurred if we couldn’t be sure of where they’d been?

Mr Laws might have a good legal justification for believing that he “owns” the note. But given that he has already indicated his intention to return it to the State on his death, why not return it now? Refusing to do so might look to some like putting personal gain (even if just the kudos of being able to produce the controversial note at dinner parties) above service to the nation.

Source: http://www.dailymail.co.uk/news/article-3817781/Former-minister-David-Laws-battle-National-Archives-Treasury-priceless-no-money-left-note.html

 

FOIMan News to 18 July 2014

FOIMan reports on the latest FOI and information rights news stories.

The Information Commissioner's Annual Report was published this week.

The Information Commissioner’s Annual Report was published this week.

Information Commissioner uses launch of Annual Report to call for more resources and powers

 

The Information Commissioner, Christopher Graham, launched his office’s Annual Report for 2013/14 on Tuesday 15 July. Following on from his reported comments at an internal meeting earlier this year, Mr Graham highlighted the state of funding of his office, saying:

…to do our job properly, to represent people properly, we need stronger powers, more sustainable funding and a clearer guarantee of independence.

Law Commission advises Government to set up a comprehensive review of data sharing law

Last year the Law Commission opened a consultation on data sharing with a view to identifying perceived hurdles to data sharing in the UK. Last week (11 July) the Commission published its report on the consultation. It recommends a “full law reform project”:

…to create a principled and clear legal structure for data sharing, which will meet the needs of society.

It suggests that the project should map, clarify and modernise statutory provisions around data sharing, as well as looking at “soft law” such as guidance, Codes of Practice and sharing of best practice. The report was made to the Secretary of State for Justice, Chris Grayling.

Schools Trust holds information says Tribunal – eventually

In a week when the Education Secretary was removed from office, scrutiny fell on the complicated arrangements behind many academies, and the implications for FOI. Geraldine Hackett, a journalist, wanted to see the employment arrangements of the Chief Executive of the United Learning Trust, a Trust behind a number of academy schools. The Trust argued that they did not hold the information as the Chief Executive was employed by the Trust’s parent body, the United Church Schools Foundation Ltd. This argument had been upheld by the Information Commissioner and the First-Tier Information Tribunal. The Upper Tribunal overturned the FTT decision on a technicality and asked for a new First-Tier Tribunal to reconsider the case.

This time, the FTT found that because the information was held in filing cabinets that the Trust’s staff had access to, the information was held. The decision is in line with the important University of Newcastle Upper Tribunal decision which stated that “[h]old…is an ordinary English word and is not used in some technical sense…”. It also confirms the overall trend of decisions around the definition of “held” since then which suggests that if there is any doubt, the public authority probably holds the information in question. Robin Hopkins has analysed the case in more depth on 11KBW’s Panopticon Blog.

Data retention emergency legislation DRIPs through Parliament

The controversial emergency Bill requiring communications providers to retain data on telephone and internet use received Royal Assent in the same week that it was introduced to Parliament. It followed the European Court of Justice’s decision in April that the existing European Directive was unlawful as it represented a disproportionate intrusion into individuals’ privacy. At the time, the court said that the Directive:

entails an interference with the fundamental rights of practically the entire European population.

DPA without the Lawyer

DPA without the Lawyer

Publication of the Week

In a slight departure, this week I’m going to highlight a new book from The Centre for Investigative Journalism called DPA without the Lawyer. This is the latest in the series of books (including FOIA without the Lawyer and EIRs without the Lawyer) put together by the team at Request Initiative. DPA without the Lawyer is written by Jenna Corderoy and Brendan Montague and explains how journalists can take advantage of the subject access requirements of the Data Protection Act in their investigations.

 

FOIMan can deliver training in Freedom of Information, Data Protection and other information rights issues in your own premises. Get in touch for further details.

Practically Speaking Part V: Holding Your Own

FOIMan brings you the fifth in his series of articles for PDP’s Freedom of Information Journal.

Before Christmas, I started publishing a series of articles that were published in last year’s Freedom of Information Journal. This week I bring you the fifth in the series which looks at the difficulties in establishing whether information is held by public authorities. I’ll be returning to this subject at both the Information & Records Management Society Conference and PDP’s Freedom of Information Conference later this year.

In the sixth and final of the series – for now – I take a look at the issues surrounding approval of FOI responses by senior colleagues and the involvement of Press Officers in this process. Watch out for that next week.