Freedom of information has been at the heart of the news agenda with the revelations made by the Daily Telegraph about MPs’ expenses. It’s worth remembering that, while the Telegraph came by the leaked information from someone in the House of Commons fees office, the public would have found out about hanging baskets, duck islands and mock Tudor beams soon anyway, because of a High Court ruling (June 2008) involving an FoI request by journalists to see how MPs spent their £22,000 ‘second home’ allowance (see [2008] Gazette, 18 September, 20).

On 11 May 2009, the Times wrote that ‘a Labour plot to suppress the future release of MPs’ expenses has been uncovered’. Senior Labour figures were reported as saying that the future privatisation of the fees office, which processes MPs’ expense claims, would mean that the information would no longer be held by the Commons and so not subject to the FoI act. This is not correct. Under section 3(2), information is still subject to the act if it is held on behalf of a public authority by another person; for example, by a contractor as part of the delivery of services to a public authority (see the information commissioner decisions involving the Department for Work and Pensions (17/11/2008) and Leeds City Council (10/04/2007), which emphasise this point.)

Court records are exempt from disclosure under section 32 of the act. It is an absolute exemption, which means that there is no requirement to apply the public interest test. Court records are defined as where information is held only by virtue of them being contained in:

(a) any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter;
(b) any document served upon, or by, a public authority for the purposes of proceedings in a particular cause or matter; or
(c) any document created by (i) a court, or (ii) a member of the administrative staff of a court, for the purposes of proceedings in a particular cause or matter.

The rationale behind this exemption is that the courts alone should control access to documents produced or created by the parties and served on the court and other parties.

In a recent appeal (Department for Business, Enterprise and Regulatory Reform v The Information Commissioner and Peninsula Business Services (28/04/2009)) the Information Tribunal had to decide whether the names and addresses of respondents in employment tribunal proceedings could be said to be held by virtue of their being contained in a court record. This information, originally in the form of ET1 and ET3 forms and pleadings, is subsequently entered on to the tribunal electronic case handling system by staff. The tribunal ruled that the section 32 exemption applied to electronic records as well as paper ones, and that the individual entries in the database were themselves court records and so the information requested was held only by virtue of it being contained in a court record. It mattered not that the information would also be used for management and statistical purposes.

Class-based exemptionsMedia interest in the circumstances surrounding the 7 July terrorist attacks continues, as does the police investigation. In a decision involving the commissioner of the Metropolitan Police Service (31/03/2009), the complainant requested seven items of CCTV footage showing the movements of the perpetrators that had been described in the Home Office report of those events. The public authority refused the request, citing sections 30 (investigations) and 38(1)(a) (endangerment to health).

Section 30 provides a class-based exemption and so the possible prejudicial effect of disclosure is not a relevant consideration when deciding whether this exemption is engaged. Therefore it was easy for the commissioner to rule that it was engaged in this case, since the CCTV images requested were held as part of the criminal investigation into the bombings. However, the nature of the prejudice that may result through disclosure, its magnitude and the likelihood of it arising are relevant when considering where the balance of the public interest lies.

In line with the direction provided by the Information Tribunal in the case of Toms v The Information Commissioner (EA/2005/0027), the commissioner considered that the following factors, among others, are pertinent when assessing such issues and thereby in identifying which public interest arguments in favour of maintaining the exemption are relevant in the case and in carrying out the weighing exercise. The factors include:In coming to the conclusion that the public interest favoured disclosure, the commissioner took account of the fact that CCTV footage of comparable content was already in the public domain at the time of the request, as were accurate descriptions of the content of the footage being requested in this case. He also gave weight to the need to inform the public of a matter of debate; namely, the controversy over the decision not to hold a public inquiry into the events, along with disputes over the official version of events due to lack of information.

  • the stage or stages reached in any particular investigation or criminal proceedings;
  • whether and to what extent the information has already been released into the public domain;
  • the significance or sensitivity of the information; and
  • the age of the information.

Although it was not cited by the public authority, the commissioner did find that the exemption provided by section 40(2) (personal information) was engaged in respect of footage from which individuals other than the perpetrators of the attacks can be identified. He ruled that, rather than withholding such footage, the public authority should pixellate images of third parties before disclosure.

Information ageOne of the factors identified above, as requiring careful consideration when applying the section 30 exemption, is the age of the information. The general rule is that the older the information about investigations and proceedings, the less sensitive it will be and the more likely it will be in the public interest to disclose. Listeners may wish to examine the Information Tribunal decision in Dr Peter Kelway v Information Commissioner and Northumbria Police (14/4/2009), where some information about police reports into an investigation, as well as forensic reports, were held to be disclosable. While section 30 was engaged, it was felt that the public interest in disclosure was stronger, especially taking into account that the investigation had closed at the time the request was made.

However, sometimes even very old information will be in the public interest to withhold under section 30. In The Metropolitan Police v Information Commissioner (30/3/2009), the Information Tribunal agreed with the public authority that disclosure of the names of previous informants of Special Branch from the 19th century was not in the public interest. This was because there was a strong public interest in reassuring current and future informants that their names and identities will not be disclosed even after they die. To do anything different would make it more difficult to recruit future informants and, bearing in mind the vital role they play in law enforcement, would put the public in danger.

Ibrahim Hasan, IBA Solicitors is also a director of Act Now Training