Posted on August 11th, 2009 No comments
Who would have thought that the Freedom of Information Act would need to be used to find out how best to cook a burger? But that’s what has happened.
The Information Commissioner has ordered the Food Standards Agency (FSA) to disclose the details of a slide used in a presentation by a US fast food chain (I wonder who this might be?) as to how it cooks its burgers.
All the information centres on an investigation by the Advisory Committee on the Microbiological Safety of Food (ACMSF) into the issue of cooking burgers safely.
In June 2004 the FSA sought the advice of the ACMSF on the UK’s existing guidance on the safe cooking time and temperature for burgers. This followed a suggestion from the US fast food company to the FSA that this guidance recommended cooking conditions that were more stringent than was necessary. The company believed that this led to overcooking and deterioration in the quality of some of its products.
In September 2004 the ACMSF set up an ad hoc group to review the advice issued by the Chief Medical Officer. Amongst the evidence it considered was a presentation from the US fast food company on the controls it used to ensure the safety of burgers from raw materials through to consumption. It provided data on the effectiveness of the regime in the US which differed from that in the UK.
When the applicant asked for the material considered by the ACMSF and the material submitted to it by the US fast food chain some of it was refused. The FSA claimed the information was exempt from disclosure because it was subject to S.22 (Intended for future publication), S.35(Formulation of Government Policy), S.40 (Personal Information) and S.41 (Information Provided in Confidence).
During the course of the three-year saga, the initial request was made in April 2006, much of the disputed information was passed to the applicant. However, the contents of one slide used during a presentation were still disputed. According to the FSA the slide was subject to S.41 (Information Provided in Confidence) and S.43 (Commercial Interests).
The Information Commissioner could not disclose what was in this slide but he ruled that neither exemption was engaged. On S.43 argument he said the risk of prejudice could not be said to be a “real and significant risk to the company”. Similarly he dismissed the S.41 argument on the same basis that the information was not subject to the exemption as the company would not suffer “detriment” if it were released.
The Commissioner also covered public interest arguments for both exemptions – although not needed as he ruled neither were engaged – and ruled that had the exemptions been engaged then the public interest would still have been in favour of releasing the information.
He also criticised the FSA for the way it released information in a piecemeal manner and that it should have “taken more care in the initial application of exemptions”. He also said the use of S.22 (Intended for Future Publication) was used incorrectly. Although the documents were disclosed to the applicant before they were published they were not released to a wider audience for two years. He said: “I am concerned that the public authority should make sure that before applying the exemption in future that it ascertains that there is a definite intention to publish the relevant information within a realistic and reasonably short timeframe from the point at which the request has been made.”
A full copy of the decision notice can be found by clicking [here].
I have asked the FSA for the name of the US fast food chain and a copy of the slide. You can see the request, and hopefully the response, by clicking [here].
12th August, 2009: I have been informed that the US fast food chain in question is McDonalds (fancy that!) and the organisation requesting the information was an e-Coli sufferers’ support group called HUSH. You can find out more here [link] .
17th August, 2009: The FSA got back to me on WhatDoTheyKnow [link] to confirm the fast food chain is McDonalds but that they are considering the Information Commissioner’s decision and if they don’t appeal the case they will let me have the slide – but I’ll have to wait until they make their mind up.
Posted on July 28th, 2009 No comments
A look at the cases in the pipeline for the Information Tribunal shows it is going to be a busy autumn for the court this year.
Hopefully the rulings should put some markers in the sand about what is and is not allowed to be exempted from disclosure under the Act.
The full list of cases has just been updated and can be found [here], but I’ve highlighted a few that I think are potentially the most interesting.
Royal Mail – 10th/11th Sept – Here the Information Commissioner ruled the amount spent on management consultants by the Post Office over the last five years should be disclosed despite protestations that the statistics should be covered by S.43 (Commercial Interests). Interesting as I can’t think many FoI officers would agree with the Royal Mail’s position on this one. The Commissioner decision was that the information was not covered by S.43 and didn’t even go on to examine the public interest test IF the exemption had been in play. [FS 50178376]
Department for Business, Enterprise and Regulatory Reform (BERR)
Department for Business, Enterprise and Regulatory Reform (BERR) – 22nd/23rd Sept – This could be a lively hearing in that it relates to the export licences granted to a company called EDO MBM Technology Ltd. This Brighton-based Aerospace Engineering Company, has been the subject of a campaign by local pressure groups who alleged that it had supplied Israel with military aircraft components. There have been a number of demonstrations and protests at the firm’s headquarters. This appeal relates to an attempt by an applicant to get hold of the export licences granted to EDO. The Commissioner agreed with BERR’s ruling on the matter that the information was covered by S.41 (Information Provided in Confidence). [FS 50180838]
Department for Culture, Media and Sport
Department for Culture, Media and Sport – 9th/10th Nov – This relates to internal Government memos on its casino policy, which changed a number of times. Here the Information Commissioner rejected arguments that documents should not be disclosed because the were covered by S.35 (Formulation of Government Policy) and S.43 (Commercial Interests). [FS 50160256]
Civil Aviation Authority (CAA)
Civil Aviation Authority (CAA) – 22nd/23rd October – I have written about this case before [Flight of Fancy shot down by ICO] where the CAA is refusing to issue safety reports on a cargo airline. It has claimed a S.31 (law enforcement) exemption but the Information Commissioner kicked that argument into touch saying the CAA had not shown how releasing such documents would prejudice its affairs. [FS 50168527]
Higher Education Funding Council for England (HEFCE)
Higher Education Funding Council for England (HEFCE) – 16th November – In this case the HEFCE doesn’t want to disclose the database it holds on the make-up and quality of university buildings. It claims the information is covered by a S.41 (Information Provided in Confidence) exemption, but the Commissioner ruled against the authority. Again I have blogged on this case in the past [Uni database to be opened to public scrutiny] and noted the Commissioner ruled the information was not covered by the exemption as there would be no ‘detriment’ to the universities who supplied it. [FS 50188864]
University of Central Lancashire
University of Central Lancashire – 3rd/4th and 5th of November – Pack your healing crystals and make sure you sleep on lay lines as this one is all about the ‘science’ of homeopathy. This case was brought by real scientist David Colquhoun, professor of pharmacology at University College London, who wanted all the papers relating to its homeopathy course. The university refused claiming the info was covered by S.36 (Prejudice to effective conduct of Public Affairs), S41 (Information Provided in Confidence) S.43 (Commercial Interests) and S.21 exemption (available by another means) on the basis that the applicant could pay to enroll on the course and after shelling out almost £10,000 over three years he could view the course documents. The Information Commissioner again rejected the University’s arguments and ordered the documents to be disclosed. The university has refused to back down and will now take its arguments to the druids’ court, sorry I mean the Tribunal. This is an interesting case in that it is at the focus of very public battles between so-called scientists and those that have been dubbed ‘bad-scientists’ in that they hold pseudo scientific beliefs. These arguments are now being hammered out in the libel courts and here at the Information Tribunal, which many would argue is not the proper use of these institutions. Again I have written on this topic before at [Details of “Bad Science” BSc to be revealed]. The Information Commissioner’s decision on the case can be found here [FS 50140374]Decisions BERR, CAA, department of culture media and sport, EDO, HEFCE, homeopathy, information tribunal, royal mail, S.21 (Available by another means), S.31 (Law Enforcement), s.35 (Formulation of Government policy), S.36 (Prejudice to effective conduct of Public Affairs), S.41 (Information Provided in Confidence), s.43 (Commercial Interests), university of Central Lancashire
Posted on May 5th, 2009 No comments
The Information Commissioner’s Office (ICO) has at last dealt with the oldest appeal on its desks – a case which it took just under FOUR years to resolve.
On January 12, 2005, an applicant asked West Yorkshire Police for the numbers of illegal firearms the force had seized in the last five years. The requester also asked: “Could I have copies of any reports prepared by, or received by West Yorkshire Police on the issue of gun crime or gun-related crime in the region or which include substantial reference to those issues over the same time period.”
Some information was provided to the applicant but when access to the reports was not forthcoming an appeal was lodged with the ICO on April 29, 2005.
The appeal notice stated that the reports were provided to the applicant in a redacted form but this didn’t satisfy the requestor. The redacted sections were justified by the police by the use of: Section 30 (Criminal Investigations), Section 38 (Health and Safety), Section 40 (Personal Information) and Section 41 (Information Provided in Confidence).
A ruling was made by the ICO in a decision notice [FS5073382] which was dated March 16, 2009 – three years and eleven months after the appeal was lodged.
It states that the redactions due to S.41 were incorrectly applied. The ICO ruled that although some of the information came from third parties it was the police that created the reports, even if some of the conclusions were based on the third party evidence. The ICO stated the exemption was not engaged because the information was not obtained from another party.
In relation to S.30 the ICO ruled there were two types of information – some that related to specific crimes and investigations and secondly data and reports which are an amalgamation of individual crimes. He ruled that the specific crime information was covered by the exemption and the public interest was in favour of the information being withheld. However, he said the more general information was not covered by S.30.
The decision notice says: “the Commissioner considers that the information which relates to patterns of criminal activity in geographical areas, patterns of crime occurrence, intelligence and analysis is not information relating to any specific investigation and therefore cannot be exempt under section 30(1).”
West Yorkshire Police had used S.40 and S.38 to protect the names of people in the report saying that to disclose them would be a breach of their personal data and would expose them to risk. The ICO agreed that it was personal data so didn’t then go on to consider if S.38 had been engaged on not.
The result of four years of waiting was that a total of 47 pieces from the six documents which had been redacted will now have to be disclosed to the applicant.
Posted on May 1st, 2009 No comments
I have found the following article in the Times Higher Education Supplement that I think is of interest. One of the most startling points of the following case – in which the university has been ordered to disclose all the materials associated with its homeopathy course – is that at one point they used the S.21 exemption (available by another means) on the basis that the applicant could pay to enroll on the course and after shelling out almost £10,000 over three years he could view the course documents. That argument failed. The university also unsuccessfully tried to apply S.36 (Prejudice to effective conduct of Public Affairs), S41 (Information Provided in Confidence) and S.43 (Commercial Interests).
The article said:
Teaching materials used on a BSc degree in homoeopathy must be released to a campaigner against “pseudo-scientific” courses, the Information Commissioner has ruled.
The ruling will force the University of Central Lancashire to submit to requests made under the Freedom of Information Act by David Colquhoun, professor of pharmacology at University College London, and could set a precedent for the sector.
Professor Colquhoun, who is well known for a blog he writes attacking what he sees as phoney science, first submitted requests for the material to Uclan in July 2006.
The university refused to comply on the grounds that the material was commercially confidential and could be reasonably accessed by other means – namely, by enrolling on the course.
In addition, it argued that “the effective conduct of public affairs” would be prejudiced or likely to be prejudiced by releasing the requested information.
Despite Uclan’s protests, Richard Thomas, the Information Commissioner, ruled that none of the exemptions that organisations can rely upon to withhold information applied in this case.
He said that the university could not be considered a commercial organisation for FoI purposes, and must now release the course materials, bar any case notes that refer to patients.
The course under scrutiny has closed, but Professor Colquhoun told Times Higher Education that this did not mean the information was no longer of interest or detract from the precedent set by the commissioner’s ruling.
“The course that prompted the request is no longer the point,” he said. “What matters is that all the usual exemptions claimed by universities have been ruled invalid.
“In future, they will not be able to refuse requests for teaching materials … people will be able to get hold of whole courses if they want to.”
A spokesman for Uclan said it would appeal the decision.
Posted on April 16th, 2009 No comments
A database which holds details on the state of repair of every university building and the cost of upgrading them will be opened up to public inspection following a decision by the Information Commissioner.
The Higher Education Funding Council for England (HEFCE) has failed in a bid to keep the database secret on the basis it was exempt from disclosure under S.41 (breach of confidence) of the Freedom of Information Act.
Following an appeal to the Information Commissioner’s Office (ICO) a decision notice (link) has been issued stating release of the information would not be an actionable breach of confidence.
The appeal was linked to a complex request for information about statistics held on a database by the HEFCE that were provided to it by all Higher Education Institutions in England.
In the database property such as halls of residences, lecture theatres and libraries have been categorised on a sliding scale from Condition A to Condition D. These results are then fed from the institutions to the HEFCE which maintains the database.
The HEFCE said that it could not give the information to the applicant as to do so would be a breach of confidence.
Following a protracted exchange between the ICO and HEFCE the Information Commissioner decided the data had the quality and obligation of confidence but refused to accept that release would result in a detriment to the bodies that supply the statistics.
The HEFCE successfully argued there was an obligation of confidence as its documents sent out to universities and colleges stated: “The Funding Council treat all information they receive from individual institutions as confidential unless it is collected specifically for publication.”
But the HEFCE’s arguments on detriment met with less favour. It claimed release of the data would:
- Undermine its own database as institutions would no longer submit statistics – The ICO said this argument was “tenuous” and he “was not convinced”.
- Individual institutions might find it harder to recruit staff and students if their reputation was damaged by the publication of the data – The ICO said the information was “high level statistical data” which in his opinion was too high for an inference to be drawn which would impact on a university’s ability to recruit staff and students.
- Institutions could end up besieged by approaches from suppliers offering their services to upgrade and repair their buildings – the ICO refused to accept this argument and even noted that the HEFCE agreed some universities might even benefit from this process.
In conclusion the Information Commissioner said: “Therefore after considering the arguments and evidence presented by the HEFCE the Commissioner does not believe that the disclosure of the information requested in this case would have a detrimental impact on the interests of the confiders. As such he is not persuaded that the disclosure of this information would result in an actionable breach of confidence. For that reason he does not believe that section 41 is engaged.”
Editor’s Note: This decision notice brings up some interesting points, particularly when viewed alongside the other recent S.41 exemption ruling in the case of the Department of Business, Enterprise and Regulatory Reform (BERR). See my post on the subject ‘The answer to the question…’ In this case the Commissioner accepts that an obligation of confidence is created by the wording associated with the documentation that is part of the disclosure process. However, he sees above this and rules that there is no real detriment to the institutions so no actionable breach of confidence exists. This is important because it means any organisation that holds third party data cannot rely on S.41 any more without looking into the specifics of what the data is. My own experience of this is that organisations often employ S.41 on the basis they know the third party would rather they didn’t reveal the information but without examining if a genuine detriment would occur and then failing to establish if there was a public interest, under breach of confidence, for that bond to be broken.
Posted on March 26th, 2009 2 comments
When a company or organisation makes a Freedom of Information request to a public authority can it expect its identity to remain secret? Amazingly it would appear the answer is: “Yes”.
A decision by the Information Commissioner [FS50187314] has decided that for a public authority to disclose the identity of an organisation making a request would be an actionable breach of confidence and so is exempt under the Act by virtue of S.41 (information provided in confidence).
The names of individual requestors have always tended to remain secret as the release of their identities was considered to be a breach of the Data Protection Act. Now however, it seems that companies, charities, pressure groups, residents’ associations and even political parties may be able to keep their requests secret.
Explaining the rationale behind the decision the Assistant Commissioner Anne Jones said the public authority owed the special interest group an obligation of confidence, the release of the group’s name had the quality of confidence and it would suffer detriment as a result of its release into the public arena. She also said that the public interest test, which is part of the Breach of Confidence laws as opposed to the Freedom of Information laws, was not powerful enough to allow the group’s name to become public.
Posted on March 9th, 2009 No commentsThe subject of delays within the Information Commissioner’s Office have been a hot topic in recent years. Some believe that the ICO is deliberately being underfunded in an attempt to neuter the power of the Freedom of Information Act.Many requesters and public authorities complain that the slow rate at which decisions are issued only aggravates the problem as practitioners are left in limbo not knowing what the Commissioner’s view is on important subjects. FoI News put in its own request to the Information Commissioner to find out which appeal had been sitting on his desk for the longest period of time.
…….On January 12, 2005, less than two weeks after the Act came into force somebody wrote to West Yorkshire Police asking for the numbers of illegal firearms the force had seized in the last five years. The requester also asked: “Could I have copies of any reports prepared by, or received by West Yorkshire Police on the issue of gun crime or gun-related crime in the region or which include substantial reference to those issues over the same time period.”
The police provided the requester with a table showing the numbers of weapons it had confiscated and this was sent through on February 1, 2005. However, there was a clash over the second part of the request relating to the reports held by the police. It refused to hand them over citing four exemptions: Section 30 (Criminal Investigations), Section 31 (Law Enforcement), Section 38 (Health and Safety) and Section 41 (Information Provided in Confidence).
An appeal was lodged by the applicant which was considered by the police force where the refusal decision was upheld. This appeal decision was communicated to the applicant on April 12, 2005.
The applicant then e-mailed an appeal to the Information Commissioner on April 29, 2005 and staff at the ICO logged it officially on May 14, 2005. What has happened to the appeal over the last three years and nine months is something of a mystery.
In a letter of October 2008 the ICO says: “By way of additional information, I have been advised that the case is currently waiting for the decision notice that has been prepared by the FoI case officer to be ‘signed off’ by a senior member of staff.” The ICO didn’t reveal the name of the applicant – exempt from disclosure under Section 40(2) of the Act.
West Yorkshire Police said it did not want to comment on the matter but confirmed it was still awaiting a decision and the matter had not been resolved informally.
Rest assured when a decision is forth-coming we will let you know about it and which complaint has replaced it as the ICO’s dust-gathering champion.