Introduction 1. The Freedom of Information Act 2000 ('the Act') and the Environmental Information Regulations 2004 ('the EIR') have created a small number of cases that have made significant jurisprudence creating onerous new requirements for Local Government. 2. The full provisions of the Freedom of Information Act 2000 came into force for all Public Authorities in January 2005.
Local Government has been preparing for full implementation for a number of years ? certainly as long ago as February 2003 when Public Authorities were required to make information available through their "Publication Schemes". However, full implementation and making assessments as to how the Act and its provisions should be interpreted, has brought with it a whole host of potential legal pitfalls. 3. Two codes of practice have been created under the Act which will be of help to public authorities in meeting their new responsibilities. It will be important to follow both the letter and spirit of the statutory codes of practice pursuant to sections 45 and 46 of the Act so as to avoid costly litigation before the Information Commissioner and/or the Information Tribunal. 4.
The Access Code gives the skeletal framework for compliance, but in an area of law that is largely untested in the English courts, making sensible and informed decisions will be of paramount importance. 5. Exemptions from disclosing information include certain information relating to national security, information that would prejudice international relations, commercially sensitive information, and confidential information. Commercially sensitive information has already cause litigation in the early stages of implementation of the Act.
This will affect Local Authorities' ability to tender for work. Important cases 6. In John Connor Press Associates v Information Commissioner EA/2005/0005 (25 January 2006) a request was made by John Connor Press Associates to the National Maritime Museum in relation to payments made to an artist for work commissioned by the museum. The Commissioner held that: ? the museum was involved in active negotiations with another artist that the premature release of the details of the financial arrangements between the museum and the artist would prejudice the museum's bargaining position in these negotiations.
? the commercial interests exemption (s.43(2)) applied. ? that the public interest in withholding the information at the time outweighed the public interest in disclosing it. 7.
The decision was appealed to the Information Tribunal. The Tribunal considered the ambit of "likely to prejudice" in s.43(2) and held that: "The question we have to answer in relation to the first ground of appeal is whether disclosure of the particular information withheld . . . would have been "likely" to cause such prejudice to the [museum].
We interpret the expression "likely to prejudice" as meaning that the chance of prejudice being suffered should be more than a hypothetical or remote possibility; there must have been a real and significant risk. We draw support for that view from the words of Mr Justice Munby in R (on the application of Lord) v Secretary of State for the Home Office [2003] EWHC 2073 (Admin), a case in which the same expression fell to be construed under the Data Protection Act 1998. 8. The Tribunal also rejected a submission on behalf of the Information Commissioner that its jurisdiction under s.58 of the Act was limited to reviewing his decision on a public law judicial review basis.
9. Applying that test, the Tribunal found that the threshold of "likely to prejudice" had not been met on the basis that: ? a considerable amount of information had been disclosed by the museum which would have been of use to those with whom the museum was engaged in negotiations. ? some details of the contract with had already been disclosed. ? The works of art of the two artists were so different that they could not be used as comparables for purposes of a negotiation. 10.
In Harper v Information Commissioner EA/2005/0001 20/11/05 the Applicant made a FOIA request of the Royal Mail as to whether there had been requests for access to his personal file. The request was declined on the basis that that Royal Mail did not hold the record of the information asked for. The Commissioner accepted that Royal Mail did not hold the information. However, he found that the response was not sent within the 20 day time limit. 11. The Applicant appealed to the Information Tribunal.
The Tribunal upheld the Commissioner's decision, but went on to give some helpful guidance. The Tribunal considered that it was plain from the wording of s.1(4) that information can be held at one time, but not be held at the time that a request is received.
It gave as an example of a lawful deletion a computer database which is completely erased every six months. It found that, if a request is made on 1 January, and the 6-monthly deletion happened on 10 January, with the time for compliance expiring in late January, it "is possible to take account of that deletion." Conversely, a conscious decision to delete relevant information upon receiving a request would "not be in the ordinary course of business and would be unlawful." 12.
The Tribunal then considered whether it could be said that a public authority still "held" information which had been deleted from computer records. The Tribunal noted that most modern computer systems in fact did not actually "delete" information. The Tribunal gave practical guidance as to how authorities should attempt to recover data taking note of the following: ? the "restore" function in Windows.
? the use of "backup" tapes. ? the possibility of using "un-delete" or "recovery" software. 13.
It was further held that: "The extent of the measures that could reasonably be taken by a Public Authority to recover deleted data will be a matter of fact and degree in each individual case.
Ian Mann is a Public and Employment Law Barrister at 13 King's Bench Walk, Temple http://www.employment-barrister-uk.com and http://www.13kbw.co.uk
