When I last wrote four months ago, I likened keeping the ICO’s library of guidance up-to-date and relevant to painting the Forth Bridge. As we come to the end of the financial year, I think it would be fair to say that we have worked through a fair few tins of Dulux.
Of the several pieces of guidance published on our website this week, the most extensive is our revised guidance explaining to central government departments how to apply the section 35 exemption that protects the safe space for policymaking and ministerial communications.
While less than 300 words, the exemptions in section 35 attract much attention. The line beyond which transparency begins to prevent effective government is one that must be drawn with considerable care, and as a responsible regulator, we see our role as crucial in helping to judge where it lies. There is much which can be learnt from ICO cases and decisions from the Tribunal and Higher Courts in the last eight years.
That context goes someway to explaining why extensive guidance is needed to explain a single section.
Much of the document is dedicated to gauging the public interest arguments in favour of maintaining the exemption, notably in assessing potential damage to policymaking from the content of the specific information and the timing of the request. There is also a detailed look at what is meant by ‘policymaking’, including who can make policy, and when policy formulation ends and implementation begins.
There are sections too on the oft-mentioned buzz words of safe space and chilling effect. It uses examples throughout, illustrating where the Commissioner or Tribunal upheld the use of section 35, and some where it was rejected.
This week we’ve also published the following guidance:
- Information in the public domain: issues to consider if the requested information (or some related info) is already publicly available, particularly how this will affect exemptions and the public interest test.
- Personal data of the requester and others: how to deal with requests for information which includes the personal data of several different data subjects, one of which is the requester. The guidance covers both the FOI Act and the EIR.
- Public Contract Regulations: the impact of regulation 43 of the Public Contract Regulations 2006 on the disclosure of information under both the FOI Act and the EIR.
- Information about the deceased: how to deal with these requests under both the FOI Act and the EIR.
We have also updated our guidance on:
- The prejudice test, The public interest test, and How exceptions and the public interest test work in the EIR: to clarify the position where the requested information is misleading or could be misunderstood.
- The effective conduct of public affairs (section 36): to reflect developments in our approach to safe space and chilling effect arguments in line with the section 35 guidance.
- Internal communications (regulation 12(4)(e)): to clarify that communications between a government department and NDPBs will not be caught by the exception, and reflect developments in our approach to safe space and chilling effect arguments.
- The Guide to FOI and The Guide to EIR on what constitutes a valid request, to clarify that this is not a hard test to satisfy. Most requests for information will trigger the Act or the EIR, even if they are vague or otherwise difficult to answer. However, the Act and the EIR contain other provisions to deal with requests which are too broad, unclear or unreasonable.
Plenty to read through, but we’re by no means putting our paintbrushes down yet: the next month will see more guidance still, most notably an important piece of work around vexatious requests.
You can keep up to date with new guidance in several ways:
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|Steve Wood‘s department develops the outputs that explain the ICO’s policy position on the proper application of information rights law and good practice, through lines to take, guidance, internal training, advice and specific projects.|