INFORMATION COMMISSIONER AND TRIBUNAL DECISIONS - NEXT FOI CASE LAW UPDATE 6TH JUNE 2024. RESERVE YOUR PLACE NOW!

Our work

We have nearly 40 years’ experience of campaigning for freedom of information and unique expertise in the operation of the FOI Act. 

Campaigns

We campaign to improve and defend freedom of information to hold government and public authorities to account. Read more about our current campaigns.

Policy and lobbying

We provide briefings to parliamentarians, respond to government consultations and give evidence to parliamentary committees on issues which have implications for Freedom of Information. These briefings – including our briefings on the FOI bill as it went through Parliament – are all on the site.

Advice and information

We provide advice to FOI requesters, mainly from people wanting to know whether a refusal to disclose information is justified or seeking assistance in complaining to the Information Commissioner or Tribunal.

We have published a short guide to making requests under the Freedom of Information Act and related Environmental Information Regulations. For general enquiries about the legislation please read this first before contacting us.

Examples of cases where we have assisted include:

  • We represented a campaigner seeking to improve the treatment of trafficking victims in a tribunal appeal. The Home Office had refused her request for various statistics on cost grounds. In our view it had taken into account costs which were not permitted under the relevant regulations. These included the time that officials spent waiting for computer operations to finish, the costs of providing the results in a format the requester had not asked for and supplying explanatory notes. The Information Commissioner had initially supported the Home Office but withdrew that support at the tribunal stage. Her appeal was successful, denying the Home Office a decision which it would otherwise have sought to rely on in future cases.
    Esslemont & Information Commissioner & Home Office, EA/2020/0008
  • We assisted a requester who had been seeking detailed route maps for the proposed Oxford-Cambridge Expressway, one option for which would pass close to his home. At the Upper Tribunal (UT), both Highways England and the Information Commissioner argued that, because the Expressway decision-making process was ongoing, the maps could be withheld under an exception in the Environmental Information Regulations 2004 for  information relating to ‘material in the course of completion’. The UT ruled that the exception did not apply and, in a binding precedent, held that ‘material’ could only refer to something with a physical existence not to a process.
    Highways England & Information Commissioner & Manisty [2018] UKUT 423 (AAC)
  • We supported a requester seeking a Project Assessment Review of the viability of the government’s smart metering programme. We had advised him at the First-tier Tribunal, represented him at the Upper Tribunal and helped find him legal representation for the Court of Appeal. The court’s 2017 decision agreed with the view that we had initially advanced, that the assessment involved environmental information. This has resulted in an expanded definition of ‘environmental information’ which now includes information which does not itself refer to the environment but relates directly to a measure which affects the environment.The wider definition is particularly helpful, because a ministerial veto available under the FOI Act cannot be used to block disclosure of environmental information. The information in this case was of a class which had previously been vetoed.
    Department for Business, Energy and Industrial Strategy v Information Commissioner & Alex Henney, [2017] EWCA Civ 844
  • A requester had asked the Home Office for correspondence between it and the governments of Jersey, Guernsey and the Isle of Man about their possible involvement in the resettlement of Syrian refugees. The Home Office refused the request and the refusal was upheld by the Information Commissioner. However, the First-tier Tribunal (FTT) ordered disclosure. The Home Office, supported by the Attorneys General of the three islands then sought permission to appeal to the Upper Tribunal on the grounds that the FTT had made several errors of law. These involved the weight that should be given to a minister’s opinion under a particular FOI exemption (section 36(2)), the claim that the tribunal had applied the wrong test under the exemption and the suggestion that it had treated the islands as if they were local authorities not foreign states thus ignoring the possible harm to the UK’s international relations. The Campaign represented the requester at an Upper Tribunal hearing, arguing that none of these alleged errors had been made. The Upper Tribunal agreed and refused the Home Office permission to appeal.
    The Home Office v Information Commissioner and Mr Anthony Webber, EA/2017/0281, 12 July 2018.
  • A woman died in hospital aged 101 after being admitted with a broken arm. Her son later complained about her treatment. He was sent the results of the trust’s findings into his complaint but his FOI request for the material generated during the investigation itself was refused. The Information Commissioner upheld the refusal under the Act’s exemption for a breach of confidence. We pointed out that this exemption only applied to information supplied to the authority by some ‘other person’. Information obtained by an authority from its own employees in connection with their workplace duties is considered to have been produced by the authority itself, not obtained from another person. We drafted a section for his submission citing previous Tribunal decisions and Ministry of Justice guidance to this effect. The Tribunal agreed and ordered disclosure of the majority of the withheld information.
    EA/2011/0055, Mr C M Johnston & Information Commissioner
  • The report of an independent police investigation into the shortcomings of a police force’s murder inquiry was withheld from the victim’s sister. The Information Commissioner  upheld the refusal. The ICO considered that as the report had been produced in response to the sister’s complaint it was her own personal data and thus exempt under FOI but potentially accessible to her under the Data Protection Act (DPA). Only a third of the report was later disclosed to her under the DPA. We told her that only the parts of the report referring to relations between herself and the police could be her personal data: information about the murder inquiry could not be. We advised her to insist on a formal decision notice (the ICO had closed her case without one) so that she could appeal to the Tribunal. We drafted her grounds of appeal and helped her find pro bono legal representation. The Tribunal overturned the ICO’s decision, ordered disclosure of more than 90% of the disputed report and ruled on the correct approach in such cases.
    EA/2009/0083, Joanna Bryce & Information Commissioner & Cambridgeshire Constabulary
  • A requester had been refused information about the levels of toxic materials on a heavily contaminated former industrial site. Open cast mining was being considered although there was a school and housing nearby. The Information Commissioner ordered the Regional Development Agency (RDA) to disclose the information but it appealed on the grounds that the data would be misinterpreted, cause unnecessary alarm and jeopardise future development. We drafted a Tribunal submission for the requester pointing out that one of the two exemptions relied on by the RDA could not apply to information about environmental emissions, a point which the ICO had not mentioned.  Three days after receiving this submission the RDA abandoned its appeal (while maintaining that this was due to the forthcoming abolition of RDAs).  It went on to disclose a heavily redacted version of the information. The requester subsequently applied for the full information from the new owners of the land, citing the Campaign’s arguments, and received it in full.
    Information Commissioner Decision FER50395418, Advantage West Midlands Regional Development Agency
  • An NHS trust refused to release information that it had supplied to the Health Service Ombudsman about the requester’s complaint to the Ombudsman. The ICO ruled that the trust was prohibited from releasing that information by a statutory restriction normally assumed to apply only to the Ombudsman. This states that “Information obtained by [the Ombudsman] in the course of or for the purposes of an investigation shall not be disclosed” but without saying by whom it may not be disclosed. This was generally understood to refer only to the Ombudsman but the ICO interpreted this as applying to anyone who had supplied information to the Ombudsman and anyone else who also held that information. The decision would have created an entirely new layer of secrecy around the work of the Ombudsman. The Campaign was permitted to intervene in the hearing, despite the ICO’s repeated objections. We argued that the ICO’s interpretation would prevent people who had complained to the Ombudsman from disclosing information about their problem to anyone else, an inconceivable restriction on the Article 10 ECHR right to freedom expression. An NHS body would not be permitted to disclose information which it had supplied to the Ombudsman even to a GP or consultant for the patient’s continued treatment. The Tribunal agreed that these consequences could not have been intended by Parliament and overturned the ICO’s decision.
    EA/2011/0183 Miguel Cubells and Information Commissioner and Wrightington, Wigan & Leigh NHS Foundation Trust
  • The ICO ruled that short passages of 1961 correspondence relating to the “Congo crisis” of the 1960s would still be likely to damage international relations if released in 2008. The requester appealed, arguing that the information was not exempt and even if it was the public interest favoured disclosure because of the benefits to public understanding in both the UK and the Democratic Republic of Congo. The ICO replied that only the benefits to the UK public could be considered and that any benefits to the people of the Congo were irrelevant to the Act’s public interest test. The requester appealed. The Campaign drafted a submission to the Tribunal arguing that in appropriate cases it was inconceivable that the Act’s public interest test could take no account of benefits which were solely experienced overseas, for example, in preventing loss of life, helping relieve natural disasters or preventing the loss of endangered species. The Tribunal did not rule on the issue as the Appeal was withdrawn when it was discovered that the disputed information was already in the public domain. We have published the submission in case the same issue arises in a future case.
    Information Commissioner Decision  FS50252765, The National Archives
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