Freedom of information law seminar: recap

On 26 April, Jeremy Isaacson and Ethan Ezra hosted our annual freedom of information law seminar. The key decision notices, Information Tribunal judgments and other updates were as follows.

ICO and Tribunal updates

1. Pembroke College, Oxford (8 November 2022, link here): The ICO upheld the College’s decision to withhold donor and donation information based on s.41 FOIA (protection of information supplied in confidence) and s.43 (disclosure would prejudice the College’s commercial interests).
2. British Museum (20 January 2023, link here): The ICO upheld the Museum’s decision to withhold sensitive information about Ethiopian artefacts based on s.27 (prejudice to the UK’s international relations). The facts of the case were relatively unique, but the key takeaway underlined the importance of avoiding relying on generic arguments and exemptions: the Museum had successfully relied on a lesser-used exemption.
3. University of Bristol (1 November 2022, link here): The ICO ordered the University to disclose copies of a draft report relating to the Edward Colston statue. Reliance on s.36(2)(b)(ii) (prejudice to the free and frank exchange of views) failed because the ICO found the draft text to be uncontroversial and noted that the issues were not live at the time of the request.
4. General Dental Council v ICO & O’Hooley (25 January 2022, unreported): The First-tier Tribunal disagreed with the ICO and upheld the GDC’s application of s.36 for withholding information relating to the GDC council’s deliberations. The salient issues were the reasonableness of the qualified person’s opinion, the need for a safe space to discuss sensitive issues, and the risk of a chilling effect on future deliberations.
5. Matalia v ICO & University of Cambridge (27 July 2022, link here): The University was entitled to refuse a request on the basis of s.14 (vexatiousness). The Tribunal noted the requester’s history of repeated, intransigent and aggressive requests to both the University and its predecessor in this matter. The requester was noted to have become driven increasingly by a “vendetta” rather than a proper purpose.
6. National Museum of Science and Industry (3 June 2021, link here): The ICO upheld another application of s.14. The salient issues were the requester’s targeting of a specific member of staff in his correspondence, another public authority having closed the requester’s complaint on this matter, the requester’s belittling language, and the lack of a public interest in disclosure.
7. NHS Business Services Authority v ICO & Spivack (6 August 2021, link here): The Upper Tribunal rejected NHSBSA’s application of s.40(2) (personal data) since the actual identification of individuals was not possible from the requested information.

New guidance and practice points

1. New ICO guidance on non-corporate communications (link here): Information relating to a public authority’s business which is stored on non-work devices could fall within the scope of an FOI request. Concealment / deletion of such information following receipt of a request could be an offence under s.77 of FOIA. The guidance helps public authorities manage / mitigate the use of non-work devices.
2. New services under the ICO’s “Better FOI” transformation programme: Following a consultation period, the ICO’s Better FOI programme has introduced several new initiatives. These include (among other schemes): (i) a new prioritisation framework for dealing with complaints with high public interest (link here), (ii) a toolkit for public authorities to deal with vexatious requests (link here), and (iii) new guidance on internal consultations when handling FOI requests (link here).

Please email Harrison Bartlett-Smith if you would like to obtain a copy of the slides and / or recording of the seminar.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, June 2023