Legal Update: disclosure, formats and context

The Upper Tribunal, in Surrey Heath Borough Council v IC and Morley [2014] UKUT 0330 (AAC), recently ruled that even where personal information about children appeared on Facebook, it was still personal data which would not be fair to disclose (section 40(2)). Mr Morley asked for information about members of the local authority’s youth council who had provided input into a planning application. The authority withheld the names of the youth councillors who were minors. In a majority decision, the First Tier Tribunal (Information Rights) (FTT) ordered that some of the names be disclosed, principally on the grounds that some of them appeared on the youth council’s (closed) Facebook page.

Judge Jacobs overturned the decision. As has been ruled in other cases of requests for names, the requestor has to show that he/she has a legitimate interest in knowing the names and that disclosure is necessary to satisfy that interest. A general argument about openness and transparency will not suffice. Judge Jacobs found that there was no legitimate interest in the disclosure of the names of the youth councillors. There was enough information in the public domain about the youth council and this particular planning decision to enable effective scrutiny without knowing the names in question. He also pointed out that there was no evidence that the individuals had agreed to their names being published on Facebook. Therefore it could not be argued that the youth councillors had implicitly consented to public disclosure of their identities in response to such a FoI request.

Judge Jacobs made it clear that his decision was based on the facts of this case and it could not be said that personal data of minors should never be disclosed under FoI. He did set out some guiding principles for future decisions involving the personal data of young people, especially in the social media context, but observed that the issues were not clear-cut and ‘it is by no means the last word on the subject’.

Legitimate interests were also examined by the Upper Tribunal in Farrand v IC and London Fire and Emergency Planning Authority [2014] UKUT 0310 (AAC), when it dismissed an appeal against the refusal to disclose some photographs of a flat after a fire. It did so on the grounds that the requested information was the occupant’s personal data and disclosure would not be fair (section 40(2)). Mr Farrand’s interests were to identify the cause of the fire so as to prevent its recurrence. While these were legitimate interests, it was not necessary, nor would it have helped his cause, for him to see the photographs. An experienced fire investigator had visited the flat and was unable to identify the precise cause other than a naked flame. His report was disclosed to Mr Farrand and this satisfied his interests.   

Section 8 of FoI states that a valid request for information is one which ‘describes the information required’. What if the requestor just wants copies of emails but does not refer to any ‘information’ within them?

In June, in Department of the Environment (Northern Ireland) v Information Commissioner EA/2013/0233, the FTT rejected a claim by the department that a request for copies of someone’s emails does not describe the information required. It was not persuaded by the argument that the request in question had asked for a medium on which information was held, rather than for information of a particular description. The FTT approved the commissioner’s guidance on this subject (‘Recognising a request made under the FoI (section 8)’) and agreed that the requestor was interested in specific, identifiable information even though he did not (and could not be expected to) know the exact subject matter of that information.

Section 11 of FoI allows an applicant to express a preference as to the way he/she wants the requested information communicated. This includes ‘the provision to the applicant of a copy of the information in permanent form or in another form acceptable to the applicant’. The public authority should give effect to that preference where ‘reasonably practicable’ to do so.

According to an April 2013 decision of the Upper Tribunal (Innes v the Information Commissioner and Buckinghamshire County Council [2013] UKUT 0188 (AAC)), this means that the requestor can specify whether the information should be supplied in paper or electronic form, not the precise format such as Word or Excel. Mr Innes had requested certain school admissions information in Excel format.

In July, the Court of Appeal (Innes v Information Commissioner [2014] EWCA Civ 1086)) overturned the Upper Tribunal’s decision. It ruled that section 11 allows a requestor to choose the precise format in which electronic information is provided, as long as it is reasonably practicable to provide it in that format. Underhill LJ said that it was a natural use of English to describe the software format in which a copy of the requested information was provided as an aspect of its ‘form’. The fact that Excel was more than simply a means of presenting information did not mean that the format could not be described as an aspect of the form of the information. He said that this interpretation fits with the apparent philosophy of the act, which is to give citizens the right of access to public information, at least in part so that they could make use of that information. What if information is requested in a format in which it is not already held? Note the words of Underhill LJ at paragraph 40 of his judgment: ‘If an authority is asked to provide information in a software format in which it is not already held (or into which it cannot readily be converted) it would be entitled to seek to rely on the reasonable practicability qualification; I doubt if it was part of the purpose of the act to oblige authorities to input information into a spreadsheet when it does not already exist in that form (though that was not of course the case here). The authority could likewise invoke the reasonable practicability qualification if the provision of information in the way sought would be inconsistent with the licence governing its use of particular software.’

Of course, where the information requested is a dataset, the new FoI dataset provisions (see Gazette, 16 September 2013) (new section 11(1A)), which came into force on 1 September last year, will take effect. These provisions require datasets to be disclosed, so far as is reasonably practicable, in an electronic form ‘which is capable of reuse’. This should be a machine-readable form using open standards, which enable its reuse and manipulation. RDF, JSON and XML are all machine-readable formats, but Word and Excel are not.

Section 14 allows an FoI request to be refused on the grounds that it is vexatious. According to the leading Upper Tribunal decision on this subject (Dransfield v IC (2012) UKUT 440 AAC) the key question is: ‘Is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FoI?’

Since an FTT decision in July 2011 (Duke v IC and University of Salford (EA/2011/0060)), we have known that when considering if a request is vexatious, a public authority can take account of the wider context of the request including, as in the above case, the substantial number of FoI requests made during a specific period by different people who have been encouraged to do so by the requestor.

In Sivier v Information Commissioner (EA/2013/0277) the FTT rejected an appeal of the information commissioner’s decision where the appellant’s request for information, which was in itself innocuous, had been rendered vexatious by his use of online messages inviting others to submit identical requests. As a result, 24 other individuals had sent the department information requests that were substantially the same as his request. They were received by the department within a few days of the publication by the appellant of two messages on a political blog. The appellant’s second message was posted four days after the request. The FTT also ruled that it is permissible for the public authority to take into account post-request events when they are, as here, so closely connected with the request that they can be interpreted as part of the implementation of a single strategy.

Ibrahim Hasan is a solicitor and director of Act Now Training (www.actnow.org.uk)