Line to take - LTT109 - Information “obtained from” any person
- FOI/EIR: FOI
- Section/Regulation: s41
- Issue: Information “obtained from” any person
- Source: Information Tribunal
- Details: Derry City Council (11 December 2006); DBERR / Friends of the Earth (29 April 2008); DOH (18 November 2008)
- Related Lines to Take: LTT40, LTT93, LTT94, LTT95, LTT96, LTT97, LTT98
- Related Documents: EA/2006/0014 (Derry), EA/2007/0072 (DBERR) EA/2008/0018 (DOH)
- Contact: HD/GF
- Date: 13/02/2008
- Policy Reference: LTT109
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
In deciding whether information has been ‘obtained from any other person’ the Commissioner will focus on the content of the information rather than the mechanism by which it was imparted and recorded.
The exemption in relation to information provided in confidence at s41(1)(a) FOIA states that:
- 41 — (1) Information is exempt information if—
- it was obtained by the publlc authority from any other person (including another public authority) and
- the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person
This exemption was considered in the case of Derry City Council. Here, it was argued that a fax sent by Ryanair to Derry City Council setting out the terms it considered acceptable in operating a scheduled flight service from London to Derry was information obtained from another person.
The Tribunal did not agree and their conclusion is set out in LTT40 which states that a written agreement between two parties does not constitute information provided by one of them to the other, and therefore a concluded contract between a public authority and a third party does not fall within section 41(1)(a) of the Act.
The Commissioner’s awareness guidance (no. 2) states that this exemption will not apply to information that the public authority has generated itself. This reflects the fact that the exemption is not just concerned with the sensitivity of the information but that it also requires the information be obtained from another party. This is obviously to prevent public authorities from simply marking internal communications as ‘confidential’ to try to exempt them from disclosure.
This point was considered in the recent decision of the Tribunal involving the Department for Business, Enterprise and Regulatory Reform (DBERR) and the Friends of the Earth where the complainant requested a copy of information about meetings/correspondence between the DTI (the predecessor of DBERR) and the CBI. As the DTI had created the record of the information, the Commissioner concluded that the exemption was not engaged because the information was not obtained from another party.
The Tribunal rejected the Commissioner’s decision and found that although the record was created by the DTI, the information contained within it had been obtained from a third party. The Tribunal said it agreed with the submissions made by Counsel for the DBERR when she said that:-
- “…The Commissioner confuses the information imparted and the form in which it is recorded, or the party by whom it is recorded. The consequences of such an application, for example, are that highly confidential information passed by an informant to a police officer would be protected if it was recorded in a letter sent to the police by that source, but would not be protected if the police officer met the source, had a conversation, and then recorded it in a memorandum or statement. This privileges the accident of form (or record) over content, and cannot be correct.” (para 78).
The Commissioner therefore takes the view that there is no requirement for any physical passing of documents from one party to another to consider whether the information was “obtained from” a third party and therefore information which is transcribed or recorded by one party can fall under s41(1)(a) FOIA if that record contains information disclosed to it in whatever form from a third party.
Department of Health v ICO
The general approach in Derry was followed by the Tribunal in DoH v ICO, who were clear that a contract is mutually agreed and not obtained by either party (paragraph 34). In this case, the Tribunal rejected the PA’s argument that the requested information — a copy of the contract between DoH and a consulting company for the provision of Electronic Recruitment Services for the NHS — was information provided by a third party for the purposes of s41. It said that if information has been provided by the public authority, “its inclusion in a document compiled by [the consulting company] subsequently or a draft does not then transfer “ownership” of the information to [that company] for the purposes of considering the contract” (paragraph 33). It went on to say:
- “From the evidence it is clear that DoH undertook a detailed review of all the proposals and made suggestions of substance, often before a draft had been proposed. The installation of D0H ideas from the Invitation to Tender or discussions certainly negates the assertion that the information in the Contract was obtained from (the consulting company] just because it appeared in a document they compiled subsequently’ (paragraph 33).
The Commissioner is aware that there may be cases where the individual who has recorded the information has added his/her own assessment / critique / commentary / interpretation to the record. As such, it may not be possible to say that the entire record contains information obtained from the third party.
An exception to this principle is medical/social care records which the Commissioner accepts do represent information obtained from another person despite the notes not only recording a patient/client’s symptoms but also the assessment and interpretation of the professional concerned.