Wales and Northern Ireland

Chapter 24 explains how the Freedom of Information Act 2000 applies to Wales and Northern Ireland. It describes the scheme of devolution for Wales with the National Assembly for Wales and the Welsh Government and the way legislative power has been increased by the Government of Wales Act 2006 and how a reserved powers model of devolution has been agreed in a Command Paper Powers for a purpose: Towards a lasting devolution settlement for Wales. Next, the way freedom of information works in Wales is considered. The chapter then describes the scheme of devolution for Northern Ireland established following the Belfast Agreement on Friday 10 April 1998, including the Northern Ireland Assembly and the National Ireland Executive structured to ensure power-sharing and inclusivity. Section 88(2) of the 2000 Act states that the Act extends to Northern Ireland. Finally, the specific references to Northern Ireland in the 2000 Act are considered.

Enforcement

Chapter 6 deals with the ways in which public authorities may be encouraged and compelled to implement the right to know. A distinction is drawn between the powers of the Information Commissioner to promote good practice in accordance with the codes of practice outside the context of a particular request for information and the enforcement of such a request. Chapter 6 outlines the procedure for appealing to the Commissioner and the First-tier Tribunal and states how an appeal can come before the Upper Tribunal, the Court of Appeal, and the Supreme Court. It identifies the ways in which confidentiality is preserved during the appeal process: the closed material procedure and the national security appeals tribunal. It discusses the limits which the Courts have placed on ministerial vetoes; enforcement by contempt proceedings; and the position of third parties. The First-tier Tribunal Rules provide for their joinder.

The Internet

The internet is now the main way in which information is obtained. Chapter 13 considers the internet from a legal perspective, focusing on information and its disclosure. It seeks to provide a non-technical description of the operation of the internet as exemplified by the world wide web. It discusses the use of the internet by bodies subject to the Freedom of Information Act 2000 and other statutes and outlines some of the pitfalls of such use. For instance, a publication of information on a website operated from England may expose the publisher to civil or criminal liability in any country of the world on the basis of the law of those countries. The chapter explains the meaning of cookies, cloud computing, hackers, crackers and viruses. and discusses the problems of determining jurisdiction and seeking enforcement.

Privacy and the Internet

Chapter 14 deals with privacy, surveillance, and the right to know in the context of the internet. Edward Snowden’s disclosures of thousands of classified documents from the US National Security Agency served as a wake-up call. People are beginning to realize that government surveillance is widespread and intrusive, and that this intrusive power needs to be subject to legal safeguards. The chapter considers the legal constraints governing UK legislation and the impact of the decision in the Digital Rights Ireland case that EU Directive 2006/24/EC, which provided for the mass retention and disclosure of individuals’ online traffic data, is invalid. It considers the recent English cases and concludes by examining the framework which has been suggested for regulating the turbulent digital age in which we now live, drawing on David Anderson QC’s report ‘A Question of Trust’ and the European Court’s decision in the Google Spain case.

Whistle-Blowing

The principal focus of Chapter 19 is on the statutory protection from victimization of employees and other ‘workers’ who disclose information in the public interest under the provisions introduced into employment legislation by the Public Interest Disclosure Act 1998. It describes the purpose and scheme of the provisions (in their original form and as amended in 2013), and explains key concepts such as ‘protected disclosure’, ‘qualifying disclosure’ and ‘worker’. It then outlines the procedures and remedies applicable in the event of unfair dismissal or subjection to detriment for making a protected disclosure. How the legislation works in practice is illustrated by reference to cases decided in employment tribunals, the Employment Appeal Tribunal, and the higher courts. The chapter also takes a brief look at whistle-blowing duties imposed on auditors and actuaries of financial institutions and persons involved in administering pension schemes following the BCCI and Maxwell affairs in the 1990s.

Land Registration, the Census Act, and the Registration Acts

Chapter 22 draws attention to various contexts in which the state compels citizens to disclose information about their personal and financial affairs in the course of their everyday lives. It begins by looking at how much information about property ownership is made publicly available by the Land Registry, and what steps can be taken to keep some of that information private. It explains the system by which documents containing ‘prejudicial information’ may be designated ‘exempt information documents’. Second, the chapter considers how much personal information is elicited by the decennial census, and how its confidentiality is safeguarded. Reference is made to the ongoing debate about the necessity for a traditional census, given the volume of data the government already holds. Third, the chapter summarizes the effect of the various statutory requirements for registration of births, deaths, marriages, civil partnerships, and adoptions.

Historical Records

Chapter 7 examines the relationship between the freedom of information regime established by the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 and the pre-existing statutory regime governing the keeping of public records under the Public Records Act 1958. It describes the processes by which public records are transferred to the Public Record Office and opened to public access, and the progressive replacement of the ‘30-year rule’ with a ‘20-year rule’. It explains the separate, but related, concept of ‘historical records’ introduced by the 2000 Act, and the removal of certain exemptions by reference to the age of documents. The special procedures applicable to requests for information in transferred public records that have not been opened to the public are set out. The chapter then summarizes the guidance given to relevant authorities about the above matters by the Lord Chancellor’s Code of Practice and the National Archives.

Access to Information Held by Public Authorities

Chapter 4 considers the administrative structure created by the Freedom of Information Act 2000; the right to information itself; the public authorities that are subject to the right; and the way in which requests for information should be handled. The chapter addresses the form of the request; the definition of ‘information’; the problems that tribunals have had in deciding whether information is held by a public authority; time limits; the transfer of requests from one authority to another; the duty to provide advice and assistance; fees and costs; vexatious and repeated requests; and the notice which has to be given when a request is refused. The chapter then considers the automatic disclosure of information through publication schemes, the need for consultation with third parties, and record management.

Secrecy

This chapter concerns the statutory prohibitions on unauthorized disclosures of information contained in the Official Secrets Act 1989, and their interrelationship with the provisions of the Freedom of Information Act 2000. It identifies the categories of information protected by, and the persons subject to, the 1989 Act. The elements of the various offences created by that Act are discussed, in particular the requirements for disclosures to be made without lawful authority and to be damaging to a specified national interest. The chapter examines the question of compatibility between the 1989 Act and the right to freedom of expression under Article 10 of the European Convention on Human Rights, focusing on the House of Lords’ decision in the case of David Shayler. It concludes by considering which of the exemptions from the right of access under the 2000 Act may apply to information within the scope of the 1989 Act.

The Historical Background

Writing in 1972, HWR Wade drew attention to the difficulties which British law put in the way of the ordinary citizen trying to obtain or use information in government hands. Wade strikingly commented: ‘This ought to be a topic of administrative law, but it will not become one until Britain, like the United States, gives the public some sort of legal right against the government, and subscribes to the healthy American philosophy of “the public’s right to know”.’ Chapter 3 traces the development of administrative law in the 1960s, the campaign for freedom of information, the piecemeal legislative process, and the 1994 Code of Practice on Access to Government Information. The chapter concludes with an analysis of the 1997 White Paper Your Right to Know and the debates in Parliament as the 2000 Act was passed into law.