Introduction
1. The Freedom of Information Act 2000 ( "the Act") and the Environmental Information Regulations 2004 (hereinafter "EIR") have a small number of cases involving a substantial case law to create onerous new demands on local government.
2. The full provisions of the Freedom of Information Act 2000 came into force for all public authorities in January 2005. Local government has been preparing for full implementation of a number of years - certainly in February 2003, when public authorities have been invited to the information provided through its "publication number Schemes." However, the full implementation and evaluation, as the law and its provisions to understand, it has a whole range of possible legal pitfalls.
3. Two codes were within the law, the aid to the public authorities in fulfilling their new duties. It is important to both the letter and spirit of the statutory rules of conduct in accordance with Sections 45 and 46 of the Act, in order to avoid costly litigation before the Information Commissioner and / or the information tribunal.
4. The Access Code provides the framework for the skeleton, but in an area of law, they are hardly in the English courts, the wise and informed decisions are paramount.
5. Exceptions to the disclosure of information, containing certain information relating to national security, information that would affect international relations, commercially sensitive and confidential information. Commercially sensitive information to lawsuits already in the early stages of implementation of the Act. This will be the local authorities the opportunity to tender for the work.
Important cases
6. John Connor Press Associates v Information Commissioner EA/2005/0005 (January 25, 2006) was a request from John Connor Press Associates, the National Maritime Museum in relation to payments made to an artist for work on behalf of the museum. The Commissioner, that:
• The museum has been in active negotiations with another artist, that the early release of details of financial arrangements between the museum and the artist would be the museum's negotiating position in these negotiations.
• protecting the commercial interests exemption (p.43 (2)) should be applied.
• that the public interest in withholding the information at the moment, against the public interest in disclosure is.
7. The decision was appealed to the Information Tribunal. The court considered the field of "affected" in p.43 (2) and found that:
"The question we have to answer in relation to the first ground of appeal is whether the disclosure of the information withheld. . . would "likely" to cause such prejudice to the [Museum]. We interpret the phrase "adversely affected" in the sense that the chance of prejudice to suffer should be more than a hypothetical or remote possibility, it has a real and grave danger. We draw support for this view from the words of Mr Justice Munby in R (on the application of Lord) v Secretary of State for the Home Office [2003] EWHC 2073 (Admin), a case in which the same expression to be fell under the Data Protection Act 1998.
8. The court also rejected a request on behalf of the Information Commissioner that its jurisdiction under S.58 of the Act was to review its decision on a public law judicial review basis.
9. Applying that test, the court found that the threshold of "prejudice" were not satisfied on the basis that:
• a considerable amount of information had been disclosed, by the museum would have been of use, with which the museum was in the negotiations.
• Some details of the contract have already been published.
• The artwork of two artists were so different that they could not be used as comparison for the purposes of a hearing.
10. In Harper v Information Commissioner EA/2005/0001 20/11/05 the declarant FOIA request from the Royal Mail if there were requests for access to his personal file. The request was rejected on the grounds that the Royal Mail is not the record of the information. The EU Commissioner, that Royal Mail do not have the information. However, he found that the answer is not within the 20 day period.
11. The applicant with the information tribunal. The court upheld the Commission's decision but declined to some helpful guidance. The court was of the opinion that it is clear from the wording of s.1 (4) This information may be at a time, but not at the time that a request has been received. There was an example of a legitimate deletion an electronic database, which completely erased every six months. It was noted that if an application is made on 1 January, and the 6-month removal was done on 10 January, with the time the end of January, it "is possible to take into account that the deletion. "Conversely, a conscious decision to delete information relevant to an application would" not in the ordinary course of business and would be illegal. "
12. The court then examined whether he could say that an authority is still "rather than" information that will be deleted from your computer. The court noted that most modern computer systems, in fact, not really "erase" information. The court gave practical guidance on how the authorities should try to restore data, the note of the following:
• the "restore" function in Windows.
• the use of "backup" tapes.
• the possibility of using "un-delete" or "recovery" software.
13. It was further noted that: "The extent of measures that can be adopted, by a public authority to recover deleted data are, in fact and degree in each case.
Ian Mann is a public and employment law barrister at 13 King's Bench Walk, Temple and http://www.employment-barrister-uk.com http://www.13kbw.co.uk
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