Freedom of Information Act 2014 – Factors to consider when deciding if records are exempt from disclosure
In this briefing, we consider a recent decision of the Office of the Information Commissioner (the “OIC”) which usefully restates the principles that should be applied in deciding whether records are exempt from disclosure under the Freedom of Information Act 2014 (the “Act”).
This decision makes it clear that a blanket refusal to disclose in respect of entire categories of records will not succeed before the OIC.
It also highlights that public bodies should be able to justify their refusal by reference to concrete harms that would impact their functions if the records were released.
Local Authority Ordered to Release Records under FOI in Employee Disciplinary Investigation
In this decision the OIC partially reversed the decision of a local authority (the “Council”) to refuse the release of certain records in relation to a disciplinary investigation concerning “Mr N.”
Mr N, a former employee of the Council, sought a number of records concerning the handling of an investigation and disciplinary process that was conducted in relation to him.
The Council partially granted his request. It withheld access to one record in part and a number of other records in full, on the basis of sections 30(1)(a) and (b), 31(1) and 37(1) of the Act (as discussed below).
Under section 22(1)(b) of the Act, it was the Council’s responsibility to prove to the OIC that its decision to not disclose the records was justified.
Prejudicing the Effectiveness of Investigations
The Council claimed that section 30(1)(a) of the Act applied to some of the records. Section 30(1)(a) allows a body to refuse a request where access could reasonably be expected to prejudice the effectiveness of an investigation.
It was the Council’s position that disclosure would impact its ability to get HR advice from the Local Government Management Agency and to defend itself in legal actions.
The OIC noted that the Council just asserted that the alleged harms would occur, but it did not identify how releasing the records in question would actually harm its ability to conduct investigations. The OIC further found that the Council had not considered each record individually in refusing the request.
Adverse Effect on Management
The Council also sought to rely on section 30(1)(b), which allows a body to refuse access to a record if the release of the record could be expected to have serious adverse effects on the body’s performance of its managerial functions, including the defence of industrial relations disputes. The Council argued that the disclosure would prejudice its management of staff, its ability to conduct appropriate investigations and its ability to get legal or professional advice.
The OIC held that the Council did not demonstrate how the various harms would arise based on the contents of the individual records concerned.
In rejecting the Council’s claim that litigation privilege applied to the records in question – a mandatory exemption under section 31(1)(a) – the OIC referred to the established case law in this area. For litigation privilege to apply to records, they must have been created for the dominant purpose of litigation.
The OIC held that while defending litigation might have been a consideration for the Council, it was not the dominant purpose for which the records were created. The Council was in fact just as – if not more – motivated by the purpose of ensuring that proper procedures were in place for the investigation and disciplinary hearing.
The Council sought to refuse some of the records on the basis of section 37 of the Act, which provides that a body shall refuse a request if access to the record concerned would involve disclosure of the personal information of a person other than the requester.
The OIC agreed that certain records contained the personal information of individuals other than the applicant, and that it was not feasible to separate them out. The OIC referred to section 37(5) of the Act, which provides that bodies may release records containing the personal information of third parties where the public interest outweighs the right to the individual’s privacy, or if the grant of the information would be to the benefit of the persons to whom it relates. However, these exceptions did not apply in this case.
Interestingly, the OIC did not suggest that certain separable personal data, such as a mobile number, should be redacted so that the rest of the record could be disclosed. Also, the OIC acknowledged that “in many instances, records covering sensitive issues such as complaints, allegations and disciplinary issues in the workplace will fall to be considered as personal information under section 33 of the Act.”
The decision underlines that public bodies must carefully assess each record, and the risks of disclosing each record, in order to withstand a challenge to their refusal to disclose.
The decision also highlights that a requester must be able to firmly establish that the public interest in disclosure outweighs a third party’s right to privacy in their personal information.
Although the OIC made no reference to the GDPR, analysis of the significance of an individual’s constitutional right to privacy is undoubtedly strengthened by recent developments in data protection law.