Data Protection and Freedom of Information Update - November 2009

Monday 16th November 2009

News

Journalism Derogation: British Broadcasting Corporation v (1) Steven Sugar (2) Information Commissioner [2009] EWHC 2349 (Admin)

In the long-running proceedings concerning whether a report created for the BBC on its Middle East news coverage was outside the scope of the Freedom of Information Act 2000 (the "Act"), the High Court has ruled that the report was held for the purposes of journalism and therefore fell within the scope of the derogation in Schedule 1.

In doing so, the court quashed the Information Tribunal's decision and restored the Information Commissioner's original decision.

Irwin J confirmed that the derogation should have a wide scope and should not be divided as suggested by the Tribunal, which had ruled that functional journalism was covered by the derogation, but not journalism relating to policy and strategy. It follows a series of earlier judgments (including a House of Lords' decision), about whether the Tribunal had jurisdiction to hear the appeal from the Commissioner's original decision.

'Unacceptable'  level of data loss

The Information Commissioner (the "ICO") has warned that the number of incidents of loss or theft of personal data has risen to an "unacceptable" level in the past year.

The ICO said NHS hospitals holding private medical records were among the worst offenders. http://news.bbc.co.uk/1/hi/uk_politics/8354655.stm

Burglary and theft account for a third of data security breaches

New figures from the ICO reveal that burglaries and theft are the single biggest security risks for organisations processing people’s personal details.
http://www.ico.gov.uk/upload/documents/pressreleases/2009/nadpo_111109.pdf

Maidstone and Tunbridge Wells NHS to improve data security

Maidstone and Tunbridge Wells NHS Trust has pledged to improve the security of patients’ personal information after the ICO found it in breach of the Data Protection Act.

The ICO was provided with a report from the Director of ICT regarding the theft of a laptop computer.
http://www.ico.gov.uk/upload/documents/pressreleases/2009/maidstone_undertaking_101109.pdf

Decision Notices

Case Ref: FER0272686
Public Authority: Department for Environment Food and Rural Affairs (Defra)
Summary: The complainant requested information relating to a meeting that took place between Lord Hunt (Defra) and the Mayor of London.

After a delay in providing a response the public authority refused to disclose the information citing Environmental  Information Regulation ("EIR") 12(4)(e) which states that internal communications within a public authority can be withheld. The decision was later upheld in the internal review.

The Commissioner found that regulation 12(4)(e) was not engaged and therefore required the information to be released within 35 working days.
http://www.ico.gov.uk/upload/documents/decisionnotices/2009/fer_0272686.pdf

Case Ref: FS50211630
Public Authority: Chief Constable of Lancashire Constabulary
Summary: The complainant requested procedures, protocols and policies for the sharing of information between Lancashire Constabulary and other public authorities.

The public authority refused the request, citing the exemption provided by section 22(1) of the Act (information intended for future publication). The basis for this was that the information requested by the complainant was being reviewed as part of the steps being taken by the public authority to comply with the Management of Police Information Code of Practice and would be made available via its publication scheme in due course.

The Commissioner found that this exemption was not applied correctly as the public authority did not have an intention to publish the information within a reasonable period from the date of the request. Additionally, in refusing to disclose the information requested on the basis of this exemption, the public authority failed to comply with the requirements of sections 1(1)(b) and 10(1).

The Commissioner also found that the public authority failed to comply with the requirement of section 17(3)(b) in that it did not explain to the complainant why it believed that the public interest in the maintenance of the exemption outweighed the public interest in disclosure. The public authority was required to disclose the information in question.  
http://www.ico.gov.uk/upload/documents/decisionnotices/2009/fs_50211630.pdf

Case Ref: FS50220528
Public Authority: University of Oxford
Summary: The complainant requested from the public authority a copy of an initial review of a National Audit Office report on stroke care conducted by an academic member of its staff.

The public authority initially relied on section 43(2) to refuse the request. During the course of the Commissioner’s investigation, it also sought to rely on section 36 of the Act.

The Commissioner determined that the public authority correctly applied section 36(2)(b)(ii) to withhold information and did not require the public authority to take any further action.

However, the Commissioner found that the authority breached section 17(1)(b) and (c) by failing to state, by the time of the completion of the internal review, that it was relying on section 36(2)(b)(ii) and by not explaining why it applied.
http://www.ico.gov.uk/upload/documents/decisionnotices/2009/fs_50220528.pdf

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