1. Freedom of Information Act Update 15 th November 2006 Damien Welfare, 2-3 GIS

2. Re-cap from last update s16: duty to assist to avoid cost limit; IC can be expected always to consider s 16 Cost limits: may include new software Prejudice: bar rising on “likely”, after Connor, unless Derry appeal affects; test of “may very well” Vexatious: robust decision (B’ham) & guidance

3. Re-cap (cont) Ss 35 & 36: Public Interest Test leaning to disclosure Deleted data: attempt to restore if recycled/backed-up EIR charges for copies similar to FOI (Markinson case)

4. Cost limits – present position Duty to respond only where cost is up to £450 Cost covers: determining, locating, retrieving, extracting info, at £25 ph (c 18 hrs’ work) May charge formatting/copying/postage only where cost of reply is below limit. Above £450 limit, discretionary whether to reply, and may charge full cost

5. Costs - possible changes Outline proposals to revise Regulations on cost limits (Oct 06) - costs taken into account (add reading, consideration and consultation time) - aggregation of requests by any legal person (over what period?)

6. Legal professional privilege Dept of Environment (NI), FS50091688 National Assembly for Wales, FS5083791 Bellamy v IC EA/2005/0023: “strong element of public interest inbuilt... at least equally strong countervailing considerations [needed] to override” Kirkcaldie v IC (Tribunal), [EIR exemption], EA/2006/001 (“Thanet case”)

7. EIR/FOI boundary Thanet case: IT held Commissioner wrong to treat case concerning night-flying as FOI, rather than EIR “The Boundaries between EIR and FOI”, case examples, published on DEFRA website.

8. Vauxhall Tower case DCLG, 13 th June 2006, FER 0086629 1. Trend to treat land use planning as EIR 2. Develops s 35, FOIA. Public interest likely to favour disclosing most of submissions to Ministers (i)Factual background; (ii) matters framing decision = disclosable (iii) Advice as to option to pursue = withheld

9. Case Round-up 1 Environmental Resources Ltd – FER 0099259, 7/6/06 – consultancy was public authority under EIR Pembrokeshire CC – FS500676633, 6/6/06 – tender documents not confidential information (s 41)

10. Case round-up 2 Denbighshire CC – FS50068239, 27/7/06 – s40 and s 36 upheld over unexpected retirement of Director of Lifelong Learning Plymouth CC – FS50082251 (and 2 others), 23/8/06 – report into agencies’ performance following death of child from neglect not disclosable under s 36

11. Case round-up 3 Exeter CC – FS 50080412 – 7/8/06 – terms of land sale to Fire Service. No prejudice, or PIT favoured disclosure Wolverhampton – FS50065853, 28/9/06 – exemption of info re pension fund investments under ss 41, 43 not upheld

12. Case round-up 4 DCLG – FER0087051 – 28/9/06 – recommendations of GO to ODPM re 2 planning call-in cases. PIT favoured disclosure (cf DCLG case above)

13. Conclusions and questions IC backlog of cases diminishing Strong support for legal prof privilege Personal data exemptions regularly upheld Commercial prejudice less regularly upheld S 36, s 35, internal communications (EIR): PIT leans to disclosure (not Plymouth case) EIR cases increasingly significant