Thursday 03 May 2012 by Ibrahim Hasan

Last year the justice select ­committee, chaired by Sir Alan Beith, launched a call for written evidence for its post-legislative scrutiny of the Freedom of Information Act 2000 (FoI). The committee invited written evidence on the following issues (although those responding were free to discuss other matters):

• Does the FoI work effectively?
• What are the strengths and weaknesses of the FoI?
• Is the FoI operating in the way that it was intended to?

The committee is now hearing oral evidence. Its website contains more details including dates of hearings as well as uncorrected transcripts of evidence. While much has been written and submitted to the committee about what changes the government should make to the FoI regime, some changes are more likely to be recommended by it than others.

Frivolous requests

The Information Commissioner's Office (ICO) has told the committee (and a recent conference) that it would be in favour of introducing an exemption to alleviate the burden of ­frivolous requests, such as zombie invasion plans. My view is that this is a sacrificial lamb being offered by the ICO to try and deflect some of the recent criticism directed towards it. Public authorities have claimed that the ICO is not doing enough to help them at a time when they are being inundated with nuisance requests that clearly have no purpose or value. However, the committee may feel it needs to go further to address such concerns.

Change to the costs regime

Many of those that have responded to the committee's call for evidence have expressed concern about the cost of dealing with FoI requests, although the basis of calculation of some of the figures seems highly dubious. It is likely that changes are made to allow more activities to be included as part of the cost limit of £450/£600 (under the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004), including perhaps the time it takes to redact exempt information from a document before disclosing the latter.

It seems that the government is already pre-judging the outcome of the committee's report. According to a BBC Newsnight report on 5 April 2012, a new fees regime could be introduced to reduce the number of FoI requests. Different tariffs could be used to charge different types of requestors. For more on this read Jonathan Baines' excellent guest post for the Save FoI blog.

Cabinet minutes

The previous government twice used the ministerial veto (under section 53) to exempt disclosure of cabinet minutes. On 24 February 2009, the then lord chancellor Jack Straw issued the first ever ministerial veto (see Cabinet Office and Christopher Lamb v IC (EA/2008/0024 & 0029)) when the tribunal decided to uphold the ruling by the information commissioner that minutes of cabinet meetings from 2003 discussing the Iraq war should be disclosed. On 10 December 2009, Straw did the same again in respect of a decision of the commissioner (Cabinet Office FS50100665) requiring disclosure of minutes of the cabinet ministerial committee on devolution to Scotland and Wales and the English Regions in 1997.

Recently, the attorney general Dominic Grieve used the veto to block release of cabinet minutes relating to Scottish and Welsh devolution. On each occasion the veto has been used the commissioner has issued a report to parliament expressing disappointment. However, recently he has said that if the government feels strongly about cabinet minutes being kept secret then an absolute exemption should be introduced. Bearing in mind what the prime minister and Lord O'Donnell (the former head of the civil service) have said recently about the FoI, this is a strong possibility.

Other possible changes

Looking at the various submissions to the committee, especially those from the ICO, it is also likely that statutory limits for internal reviews and the public-interest test are recommended to avoid delays in dealing with requests. It may also be recommended that now the FoI has bedded in, the role of the 'qualified person' (under section 36) be removed so that there is no delay in refusal notices being issued where this exemption is claimed.

Turning to recent tribunal decisions, one will stand out for local authorities and NHS bodies. The FoI potentially allows anyone to make a request for information about the deceased. Sometimes the exemption under section 41 can be used to refuse disclosure. This applies where a disclosure of confidential information, obtained from another party, would lead to an actionable breach of confidence. The leading Information Tribunal (as it was called then) case on this issue, Bluck v Information Commissioner and Epsom and St. Helier University Hospitals NHS Trust, EA/2006/0090, concerned the disclosure of medical records to the deceased's mother without the consent of the deceased's husband. The trust's decision to deny access, based on section 41, was upheld by the commissioner and the tribunal. Both ruled that the duty of confidentiality extends beyond death. If the information was disclosed there was, in theory at least, an actionable breach of confidence, which would allow the personal representative of the deceased (her husband) to sue the trust.

Sometimes information being requested about the deceased includes health records. These may be accessible under the Access to Health Records Act 1990. In such cases the exemption under section 21 of the FoI may be claimed, that is to say it is reasonably accessible by other means. Section 3 of the 1990 act gives, among others, the personal representatives of the deceased a right to access the health records of the deceased. Exceptions exist under section 4, such as where the patient had requested a note be made that they did not wish access to be given, and section 5.

Before applying the section 21 exemption, a public authority must carefully consider if the applicant indeed has a right of access under the 1990 act because it only applies in limited circumstances. First, if the requestor is not a personal representative of the deceased (or, to be technically correct, a person having a claim arising out of the death of the deceased) then they cannot access the information under the 1990 act. Second, the records being requested must be health records within the meaning of the act. A recent First-Tier Tribunal decision sheds more light on these points.

In Martyres v ICO and NHS Cambridgeshire (EA/2011/020), the requestor sought all information held by NHS Cambridgeshire (and its relevant community services provider) in respect of her deceased mother, including information about the care received by her mother at a care home she was staying at before her death. The requestor argued that she was the next of kin, proposed executor and trustee of one of the wills, and had a valid claim against her mother's estate under the intestacy rules.

Before the tribunal, the requestor argued that the commissioner had erred in concluding that the disputed information was exempt under section 41, as no actionable breach of confidence would arise from the disclosure of the information. The tribunal gave short shrift to this argument, which is not surprising given previous cases discussed above. Strangely, it concluded that the confidence was owed to the social workers.
I would have thought that it was more owed to the deceased. After all, it was information about her care and the social workers were acting in a professional capacity.

The requestor also contended that the commissioner should have found that the exemption under section 21 was engaged on the basis that 'as next of kin and nearest relative' she would have been entitled to obtain the disputed information under the 1990 act. The tribunal disagreed. While she was the nearest relative, she was not the personal representative and so had no rights under the 1990 act. Furthermore, the records being sought were not covered by the 1990 act because they were not health records. Section 1 of the 1990 act states that a 'health record' is defined as a record which 'consists of information relating to the physical or mental health of an individual who can be identified from that information, or from that and other information in the possession of the holder of the record; and has been made by or on behalf of a health professional in connection with the care of that individual' (my emphasis).

'Health professional' under the 1990 act has the same meaning as in the Data Protection Act 1998 (DPA). The tribunal found that social care professionals do not fall within the list of health professionals under section 69 of the DPA. The trust confirmed that the information held had not been prepared by or on behalf of a healthcare professional. Therefore the tribunal found that the requestor would not have been able to obtain the disputed information from the trust under the 1990 act and that the commissioner was correct to ­conclude that it was not reasonably accessible by other means. Therefore the section 21 exemption was not engaged.

Ibrahim Hasan is a solicitor and director of Act Now Training