Line to take - LTT104 - Information caught by regulation 12(4)(e)
- FOI/EIR: EIR
- Section/Regulation: reg 12(4)(e)
- Issue: Information caught by regulation 12(4)(e)
- Source: Policy team; Information Tribunal; DN; SICO
- Details: Friends of the Earth / ECGD (20 August 2007); Department for Business, Enterprise and Regulatory Reform (DBERR) / Friends of the Earth April 2008); Nicholson / The Scottish Ministers (SICO 15 April 2008)
- Related Lines to Take: LTT66
- Related Documents: Aarhus Convention, Defra detailed guidance Chapter 7, EC Directive 2003/4/EC, FER0098306 (Defra), EA/2006/0073 (ECGD), MOJ Guide to Freedom of Information act coverage, FER0088372 (Defra), FER0156849 (DfT), FER0070181 (DCLG), EA/2007/0072 (DBERR), 052/2008 (Nicholson)
- Contact: LB / LA
- Date: 30/09/2008
- Policy Reference: LTT104
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
Communications within one public authority will constitute internal communications for the purposes of regulation 12(4)(e). All central government departments (including executive agencies) are deemed to be one public authority for the purpose of this exception.
Communications between a public authority and a third party will not constitute internal communications except in very limited circumstances.
The definition of a communication is broad and will encompass any information intended to be communicated to others or to be placed on file where it may be consulted by others.
Regulation 12(4) of the EIR provides:
- “For the purpose of paragraph 1(a), a public authority may refuse to disclose information to the extent that—
- (e) the request involves the disclosure of internal communications.”
What does the exception cover?
Neither the EIRs, nor the directive from which they are derived, provide a definition of what constitutes an internal communication. The Aarhus Convention states, at article 3(c) that internal communications will be protected where “such an exemption is provided for in national law or customary practice...” Defra’s guidance on the application of exceptions states that the rationale behind the exception is that public authorities should have “a space within which to think in private” when reaching decisions. This suggests that the exception is the EIRs equivalent to sections 35 and 36 FOIA, which protects advice provided to public authorities’ decision makers.
The ICO has not interpreted the exception this narrowly and finds that whilst it will cover the sort of communications which would be protected by section 35 or 36 FOIA, it is also broad enough encompass any other internal communications, not simply those containing the opinions of a public authority’s staff. This is because whilst article 4(2) of the EC Directive states that “the grounds for refusal... shall be interpreted in a restrictive way” both the Directive and the EIRs relate only to ‘internal communications’ and do not specify that the information need be protected by customary practice or national law. The exception is therefore fairly wide in scope however should not prevent disclosure of information where this is in the public interest, as it is subject to the public interest test.
What constitutes a ‘communication’?
The view put forward by Coppell in ‘Information Rights’ (2007) is that where information is recorded simply to be used by its author, for example as an aide memoir, it will not constitute a communication. However, where the record is intended to be communicated to others or to be placed on file, where it may be consulted by others, the information will constitute a communication. This is in line with the Decision Notices issued by the ICO so far, which have taken a broad approach to the definition of ‘communications’ and have accepted that submission and advice to ministers, notes of meetings between a government department and representatives of external organisations (where those notes were to be used only by the department, see case FER0098306/ FER00983067) and minutes of meetings are covered by the exception.
What constitutes an ‘internal’ communication?
The Tribunal has expressed reservation about adopting a ‘standard test’ in determining what amounts to an ‘internal’ communication (see paragraph 94, DfT v ICO EA/2008/0052). The Commissioner agrees that interpreting what type of information will be caught by the exception ‘… will depend on the context and facts in each situation’ (paragraph 94). With this in mind, in judging what constitutes an ‘internal’ communication, the Commissioner will give consideration to the substance and form of the relationship between parties, the particular circumstances of the case and the nature of the information in question.
Below we envisage a number of channels of communication and, where relevant, explain why each will or will not constitute an internal communication for the purpose of this regulation.
(1) Communications within one public authority
Communications within any single public authority will be internal for the purposes of regulation 12(4)(e).
(2) Communications between two, seemingly separate, authorities
(i) communications between Government departments
Regulation 12(8) provides that:
- “For the purposes of paragraph (4)(e), internal communications include communications between government departments.”
This regulation was considered by the Information Tribunal in the case of Friends of the Earth v Information Commissioner and Export Credits and Guarantee Department. In that case, the appellant argued that the Directive which the EIRs implement did not intend interdepartmental (i.e. between government departments) communications to be protected by the internal communications exception. Both the ECGD and the Commissioner argued that “the definition within the Directive itself specifically addresses a case in which a public authority comprises a number of distinct government departments such as to be properly regarded as a ‘public authority” (paragraph 46). The Tribunal agreed with this view and found that communications between government departments were protected by regulation 12(4)(e). The ICO has therefore adopted this line.
The rationale for this view is that the Directive should apply equally to all member states, some which will have simple government structures, and some of which will be complex, like the UK. Those member states with complex structures of government should not be penalised by having to make their interdepartmental communications available, where a state with a single government body would be able to protect its communications by way of this regulation.
(ii) Communications between Government departments and executive agencies
Defra’s guidance states, at paragraph 188.8.131.52 that “executive agencies are part of their parent department”. The ICO adopted this approach in case FER0088372, where communications between Defra and one of its executive agencies were deemed to be ‘internal’ and therefore the exception applied to the requested information. This interpretation is supported by the MoJ’s guide to which authorities are covered by the Act, which explains at paragraph 3 that executive agencies are “part of their parent department for Freedom of Information purposes and therefore are not listed separately in Schedule 1”.
Applying the reasoning at paragraph (i) above, communications between an executive agency and department other than its parent department, or between executive agencies, will also constitute internal communications and therefore shall fall within the scope of the exception. Indeed, all communications between central government authorities are deemed to be internal for the purposes of this regulation.
(iii) Communications between any other two public authorities
Defra’s guidance at paragraph 184.108.40.206 states that the exception applies to “government administration in the broad sense” and that “the proper scope of the exception for ‘internal communications’ is communications internal to the whole area of the state covered by the definition of ‘public authority’ in Article 2(2)”.
The ICO has not adopted this approach, for the following reasons:
- regulation 12(8) makes specific mention of communications between government departments being covered by this exception. This regulation would serve no purpose if any state communication was to be deemed internal for the purposes of regulation 12(4) and
- it would extend the scope of regulation 12(4)(e) to cover any communication sent between public authorities and therefore potentially reduce the availability of information to the public.
Communications between two separate public authorities, for example between a central government department and a local authority, or between two local authorities, will not constitute internal communications for the purpose of regulation 12(4)(e).
A similar approach was taken by the Scottish Information Commissioner in his Decision 052/2008 (under the Environmental Information (Scotland) Regulations 2004 (paras 57 to 63).
(iv) Communications between a public authority and its external advisors/contractors/etc
While we recommend that, at the start of an investigation, case officers should assume that communications between a public authority and an external party, in most cases, will not be covered by the exception, the Tribunal in the case of DfT v ICO (also know as the Eddington decision/case - EA/2008/0052) has provided an example of circumstances that provide an exception to this rule.
In Dft v ICO, a request was made for the first draft of the report prepared by an unpaid, independent expert, Sir Rod Eddington (chief executive of British Airways plc), who had been commissioned to examine the relationship between transport links and the UK’s economic growth, productivity and stability within the context of the Government’s commitment to sustainable development. In his decision notice, the Commissioner concluded that Sir Rod Eddington was an external independent advisor, and that the exception in Regulation 12(4)(e) applies only to communications between members of staff within a public authority or between government departments.
The Tribunal concluded, in light of the public authority’s presentation of more developed evidence before them, that regulation 12(4)(e) was engaged. The Tribunal accepted that Sir Rod was ‘embedded in the civil service and that it is accurate to describe him as the head of a team of civil servants’ (paragraph 95), which was described as ‘an independently led internal working group rather than that of wholly external body’ (paragraph 85). The Tribunal decision notes that ‘[i]t is commonplace in modern government for the expertise of the central Civil Service to be supplemented by external advisors working under contract to a department’ and ‘that work carried out under such contract would amount to an internal communication’ (paragraph 86). The Tribunal agreed with the public authority’s argument that there ‘is no principled dividing line between the appointment of paid contractors and the situation in this case [unpaid, independent advisors]’ (paragraph 87) and that the source of the study, the funding and the support were all provided internally, with the decision on whether or not to publish, made by Ministers (paragraph 88). The Tribunal rejected as ‘artificial’ the distinction that the Commissioner’s had argued - that Sir Rod was not part of Whitehall, but was independent, working on an unpaid basis, with no written contract (paragraph 90-92).
The Tribunal concluded:
- ‘In short, Sir Rod was invited into what is referred to as the ‘thinking space’ or ‘safe space’ within which government Ministers and their advisers operate when policy options are still under discussion. In this way he had confidential access to Ministers’ and senior civil servants’ views on the economic and political feasibility of different potential policies and was able to taken them into account in reaching his own independent expert conclusions. It appears... that the Study was, in effect, run and managed by the senior civil servants appointed as team leaders, but that the Study’s overall course and direction was set by Sir Rod who was responsible for its ultimate conclusions and recommendations’ (paragraph 95)
The Tribunal drew additional support that the report was an internal communication from the fact that the circulation of the Draft Report was limited, although clarified that this was not a determinative factor (paragraph 97).
In case FER0070181, a request was made to DCLG for a planning inspector’s report. DCLG deemed the report to be an internal communication, and this decision was upheld by the Commissioner. It is not clear from the case whether the planning inspector was an employee of DCLG, or self employed and contracted to the public authority for the purpose of producing the requested report. However, it is likely that the same decision would be reached whatever the relationship between the authority and the inspector. This is because the inspector “constitutes an integral part of the same legal and administrative function as that performed by the Secretary of State himself” and could therefore be said to be part of the public authority for the purposes of producing his report.
There may be other exceptions in addition to those examples cited above; it will be for the public authority to argue why it considers the communication should be covered by the exception. If case officers are unclear as to whether an additional exception to this line has arisen, they should seek advice by submitting a request from a first-tier case review.
In the case of South Gloucestershire Council v ICO and Bovis Homes Ltd (EA/2009/0032), the Tribunal found that Development Appraisals on specified land prepared by external consultants for the Council were not internal communications for the purpose of regulation 12(4)(e). The Tribunal, in considering the scope of the regulation, agreed with paragraph 94 of the Eddington decision about not adopting a ‘standard test’ as to what amounts to an internal communication. In this case, the Tribunal rejected the Council’s argument that the consultants had been embedded into the Council in a manner analogous to circumstances in the Eddington case. The Tribunal rejected this argument; the Commissioner agrees with its consideration that the substance and form of the relationship between parties and the particular circumstances and nature of the communication in question are relevant factors when assessing whether a particular communication constitutes an ‘internal communication’.
In the annex to its decision in the Department for Business, Enterprise and Regulatory Reform v Information Commissioner and Friends of the Earth, the Tribunal stated, at paragraph 4.4, that “the recording of a discussion between a government department and lobbyists is part of an internal communication and therefore regulation 12(4)(e) is engaged”. This is consistent with the line described above, in that discussions with third parties which are recorded by a public authority and communicated internally will be considered internal communications for the purposes of regulation 12(4)(e). However, recorded information provided by a third party will not constitute an internal communication, no matter how it is later disseminated by the public authority.
(v) Communications between a public authority and a wholly owned company
Wholly owned bodies are separate legal entities with responsibility for carrying out particular functions. They are deemed to be public authorities in their own right, and are therefore required to adopt publication schemes, publish information in accordance with those schemes and respond to FOI requests. The ICO does not consider that communications between wholly owned companies and other public authorities (even the public authority that established them) are internal communications for the purposes of regulation 12(4)(e).