On Friday May 18, MPs voted for a bill to remove both Houses of Parliament from the Freedom of Information Act. The bill also created a new exemption to allow public authorities to refuse to disclose the correspondence they have received from or sent to MPs.

The supporters of David Maclean’s Freedom of Information (Amendment) Bill claimed they were seeking to protect letters they wrote on behalf of individual constituents from disclosure. This is clearly not the bill’s main purpose since:

The Bill exempts all correspondence, on any subject, which an MP sends to a public authority (including a minister) and all correspondence which a public authority sends to an MP, whether or not it involves individual constituents. The exemption applies to letters dealing with policies, decisions, legislation and other matters that have no implications for anyone's privacy. Even letters from an authority asking MPs to vote for or against a particular bill would be exempt. On May 18, MPs debated an amendment which would have limited the exemption solely to correspondence dealing with individual constituents. The bill’s supporters rejected the amendment.

The Bill removes the House of Commons and the House of Lords from the FOI Act. But Parliament doesn’t hold MPs’ constituency correspondence. This is held by the MPs themselves. Removing Parliament from the Act cannot protect their privacy. But it would block requests for information about other matters such as breaches of security at Westminster, safety problems and excessive spending on contracts, buildings or other matters.

MPs’ correspondence on behalf of individual constituents is already protected under at least two existing exemptions in the FOI Act, those for information whose disclosure would breach the Data Protection Act or be a breach of confidence at common law (see below). These exemptions (and the legal sanctions which underpin them) are what the whole public sector relies on to protect the vast amount of personal data which it holds and which authorities communicate to each other or receive from all sources. This is what protects a psychiatrist’s letter to a GP, a police officer's note of an interview with the victim of serious crime, a prison service file about a dangerous prisoner or a neighbour's letter to social services about a neglected child. If these exemptions were deficient, the whole public sector would have been in outcry from the moment the FOI Act came into force.

A small number of MPs have said that they some of their correspondence on behalf of constituents has been disclosed. It has not always been clear whether such disclosures were made under the FOI Act or in some other way 1. However, if such personal data is being wrongly disclosed under the FOI Act it is likely that other sensitive information about members of the public (not just that in MPs’ letters) is also being released. For MPs to remove themselves from the FOI Act would do nothing to protect their constituents from this wider problem.
The answer is not to exclude MPs from the Act but to ensure that the problem is investigated and put right. This may mean ensuring that the authority has the necessary expertise and provides staff with proper training, guidance and supervision.

What about MPs’ expenses?

At the moment the House of Commons publishes information about MPs’ expenses each year. This is done under the House of Commons’ ‘publication scheme’, which it is required to have under the FOI Act 2. The Speaker of the House of Commons has promised that the Commons will continue to publish the same information about MPs’ expenses annually on a voluntary basis, even if the FOI Act’s duty to do so is removed. But this voluntary undertaking could be reversed in future. In any event, FOI requests can ask for more detailed information about expenses than is published in this way - and such requests would not be possible in future. For example, the House of Commons has been forced to release a breakdown of MPs' travel expenses showing their spending on rail, road and air travel, as a result of an Information Tribunal decision upholding an FOI request by Norman Baker MP. Although this breakdown would probably continue to be published in future, even if the Maclean bill is passed, similar new advances could not be made.

Which existing FOI exemptions protect constituents’ personal data?

There are at least two:

Section 40(2) of the Act exempts personal information about an identifiable individual whose disclosure would breach any of the data protection principles in the Data Protection Act. Any disclosure of correspondence from or to an MP about an identifiable constituent's problems would be exempt under this provision. This would include information about a problem involving a constituent’s health, housing or living conditions, entitlement to benefits or pensions, social work or education needs, dispute with another person, complaint against a public authority, immigration status, criminal record or dealings with the courts, police, probation services or similar matters. The mere fact that the MP had written to an authority about the constituent would probably be exempt under this provision.
The only exception would be if the constituent consented to the disclosure or had made the information available himself, for example, as part of a campaign to address a perceived injustice.
(Where the information related to someone acting in a public capacity, such as an official, the exemption would operate in a slightly different way and involve balancing the individual’s privacy rights against the public interest, for example, in knowing about the spending of public money.)

Section 41 of the Act exempts information whose disclosure would be a breach of confidence at common law. Information which a constituent gave to his MP about his personal circumstances would be held to have been provided in confidence, even if this had not been explicitly agreed. The same would be true for the MP’s letter to the public authority about the constituent. If the information itself was not already in the public domain, it would be protected by an obligation of confidence and exempt under section 41 3.

An authority which disclosed information that should have been protected by these exemptions would also be at risk of enforcement action for breach of the Data Protection Act or action in the courts for breach of confidence.

If the information relates to potential breaches of the law as many as three additional exemptions could also apply:

Section 31 exempts information whose disclosure would be likely to prejudice the prevention of detection of crime, the apprehension or prosecution of offenders, the administration of justice, the assessment or collection of tax, the operation of immigration controls, the maintenance of prison security or other regulatory functions.

Section 30(1) exempts information held by authorities in connection with criminal proceedings or investigations for which they have legal responsibility or which could have led to such proceedings.

Section 30(2) exempts information about to the obtaining of information from confidential sources about the above kinds of investigations or proceedings.
These three exemptions are subject to the Act’s public interest test.