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Home Positive Action Group Our Charter and Objectives Open and Accountable PAG Submission to Consultation on Freedom of Information Bill - Draft Bill: Clauses 48-50

PAG Submission to Consultation on Freedom of Information Bill - Draft Bill: Clauses 48-50

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Article Index
PAG Submission to Consultation on Freedom of Information Bill
Executive Summary
Draft Bill Clauses 5 to 10
Draft Bill: Clauses 11-14
Draft Bill: Clauses 18-22
Draft Bill: Clauses 27-31
Draft Bill: Clauses 34-42
Draft Bill:Clauses 43-47
Draft Bill: Clauses 48-50
Draft Bill: Clauses 53-67
All Pages
Clause 48 – Applications for decision by the Information Commissioner

(1) A person may apply to the Information Commissioner for a decision on –

(a) whether a request for information has been complied with in accordance with this Act; or

(b) whether a refusal to comply with a request for information, other than absolutely exempt information, was justified.

Comment

(b) is unnecessary, since it is already covered by (a).

Moreover, it raises the question of why (b) appears to exclude the possibility of seeking a decision on a refusal to comply with a request for absolutely exempt information (i.e. was the authority correct to find that the absolute exemption applied). The answer may be that this falls within (a) but in that case so does a request involving a qualified exemption.

(3) However, the Information Commissioner need not do so if he or she is satisfied that –

(a) the applicant has not exhausted any complaints procedure provided by the relevant public authority;

Comment

The word relevant should be omitted

(d) the application has been withdrawn, abandoned or previously determined by the Commissioner

Comment 

The phrase “previously determined by the Commissioner” should be removed.

The harm that may be done by disclosure changes with time, as does the relative public interest for or against disclosure. The fact that the Commissioner may have ruled, say, two years ago that the same request should be refused does not mean that the same decision should stand 2 years later.

What if the applicant has complained to the Commissioner, say, 3 months ago, and since made a new identical request to the authority and had the same answer? If he now complains to the Commissioner, the Commissioner can check whether anything has changed since his last decision. If he finds nothing has changed, he just issues a one paragraph decision notice to that effect restating his earlier findings. If he finds something significant has changed, he reaches a new decision. There’s no need for him to have the power to refuse to look at the new complaint.

 (4) The Information Commissioner must –

(a) if subsection (3) applies, notify the applicant that no decision will be made and the grounds for not doing so; or

(b) in any other case, give notice of the Commissioner’s decision (a “decision

notice”) to the applicant and the public authority

Comment

In the spirit of the Act there should be a requirement to publish the decision notice

(5) Subsection (6) applies if the Information Commissioner decides that a public

authority –

(a) has failed to comply with this Act; or

(b) was not justified in refusing to comply with the request for information.

Comment

(b) is unecessary. This will provide consistency with the recommendation for Clause 48(1)

Clause 50 – Information notices

(7) This section does not oblige a public authority to give the Commissioner information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.

Comment

This is extremely damaging - and not found in the UK or Scottish Acts. Under clause 39, Legal professional privilege (LPP) is a qualified exemption. That means that information which is subject to LPP (generally legal advice) can be requested under the Act and may have to be disclosed on public interest grounds.

It may well be quite difficult to succeed with such a case, because strong weight is given to the public interest in protecting the confidentiality of legal advice.

But if someone complains to the IoM Information Commissioner about a refusal to disclose legal advice the Commissioner will not be able to require the authority to show the disputed legal advice to him (which he would do by issuing an Information Notice, if the information was not voluntarily handed over). This is the effect of clause 50(7). As a result he cannot satisfy himself that it is in fact legal advice; and he cannot investigate whether the balance of public interest favours disclosure or not.

The equivalent provision in the UK Act is far, far narrower. It reads as follows:

(5) An authority shall not be required by virtue of this section to furnish the Commissioner with any information in respect of-

(a) any communication between a professional legal adviser and his client in connection with the giving of legal advice to the client with respect to his obligations, liabilities or rights under this Act, or

(b) any communication between a professional legal adviser and his client, or between such an adviser or his client and any other person, made in connection with or in contemplation of proceedings under or arising out of this Act (including proceedings before the Tribunal) and for the purposes of such proceedings. 

The Scottish Act has the same provision, but framed diferently. What this means is that the UK/Scottish Commissioners cannot see any legal advice which an authority have been given about the authority’s own obligations under the FOI Act or about how they should handle any Tribunal or court case brought under the FOI Act. But they can see any other legal advice.

All that is protected under the UK/Scottish provisions is legal advice on whether the authority is applying the FOI Act correctly. This means that if someone asks a UK public authority for its legal advice on, say, a planning application, that advice might be disclosable on public interest grounds. If the Commissioner needs to see the advice to rule on a complaint, he is entitled to it.

That would not be the case under the IoM Bill.

Clause 51 – Enforcement notices

(2) The steps must be within the time specified in the notice

Comment

Should presumably read “be taken within”

Clause 52 – Failure to comply with notices

(1) The Information Commissioner may certify in writing to the High Court that a public authority has failed to comply with –

(a) a decision notice by not taking any steps it is required to take under the notice;

Comment 

Suggest that the words... “by not taking any steps it is required to take under the notice;” be left out. However, the Commissioner should be able to refer any failure to comply with a decision notice to the High Court, including a failure to comply with a time limit.

Clause 60 – Historical records

 (1) Unless an order under subsection (3) provides otherwise, a record becomes a historical record 30 years after the end of the calendar year in which it was created.

Comment

 

Comments   

 
0 #2 RE: PAG Submission to Consultation on Freedom of Information BillGuest 2011-11-01 20:34
I cannot accept that a Crown Dependency should have entirely separate legislation to the UK. The cost of modern governance is beyond that which our island could collect through fair taxation. Therefore, I propose that our Civil Service should be an extention of the UK operation, on some matters.
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0 #1 Peel Commissioners view of Draft FoI Billroy 2010-09-28 11:59
http://www.iomtoday.co.im/news/Peel-board-critical-of-Freedom.6503601.jp
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