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Information Rights

Law and Practice

By: Philip Coppel
Media of Information Rights
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Published: 15-07-2010
Format: Hardback
Edition: 3rd
Extent: 1632
ISBN: 9781849460118
Imprint: Hart Publishing
RRP : £110.00
 

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Loren Epson

About Information Rights

This is the third edition of the leading practitioner's work on freedom of information. Designed to provide in-depth legal analysis and practical guidance, this book has become the first port of call for anyone either seeking or handling requests for official information. The latest edition maintains its authorship of expert lawyers. The two years since the previous edition have seen numerous important decisions from the courts and from the Information Tribunal on freedom of information law. The learning from all these has been incorporated into the text, enabling a practitioner to see immediately all relevant cases and the principles that emerge from them.
The book is logically organised so that the practitioner can quickly find the topic of choice. The work commences with an historical analysis that sets out the object of the legislation and its relationship with other aspects of public law. Full references to Hansard and other Parliamentary materials is provided. This is followed by a summary of the regime in five comparative jurisdictions, providing a useful testbed for anticipated effects of disclosure and a normative yardstick. The impact of the Human Rights Act 1998 is given separate consideration. Next follows a series of chapters dealing with rights of access under provisions apart from the FOI Act: access to information held by EU bodies; access to information under the Data Protection Act; access to information under the Environmental Information Regulations; public records; and access under numerous other provisions in legislation. Together, these provide the practitioner with sources of access that might otherwise be overlooked. All are arranged thematically.
The book then considers practical aspects of information requests: the persons who may make them; the bodies to whom they may be made; the time allowed for responding; the modes of response; fees and vexatious requests; the duty to advise and assist; the codes of practice; government guidance and its status; transferring of requests; third party consultation.
The next 13 chapters, comprising over half the book, are devoted to exemptions. These start with two important chapters dealing with general principles, including the notions of "prejudice" and the "public interest." The arrangement of these chapters reflects the arrangement of the FOI Act, but the text is careful to include analogous references to the Environmental Information Regulations and the Data Protection Act 1998. With each chapter, the exemption is carefully analysed, starting with its Parliamentary history (giving full references to Hansard and other Parliamentary material) and the treatment given in the comparative jurisdictions. The analysis then turns to consider all court judgments and tribunal decisions dealing with the exemption. The principles are stated in the text, with footnotes giving all available references. Whether to prepare a case or to prepare a response to a request, these chapters allow the practitioner to get on top of the exemption rapidly and authoritatively.
The book concludes with three chapters setting out the role of the Information Commissioner and the Tribunal, appeals and enforcement. The chapter on appeals allows the practitioner to be familiar with the processes followed in the tribunal, picking up on the jurisprudence as it has emerged over the last five or so years.
Appendices include: precedent requests for information; a step-by-step guide to responding to a request; comparative tables; and a table of the FOI Act's Parliamentary history.
Finally, the book includes an annotated copy of the FOIA Act, the Data Protection Act 1998, the Environmental Information Regulations 2004, all subordinate legislation made under them, EU legislation, Tribunal rules and practice directions, and the Codes of Practice.
Throughout the book, full web references are given (including to all cases), facilitating ready access to primary material.

Table Of Contents

Chapter 1 – Eliciting Official Information
1. Overview of Official Information Access Legislation
2. Terminology
3. The Rationale for Official Information Access Legislation
4. Background to the Freedom of Information Act 2000
5. The Open Government Code of Practice
6. Enactment of the Freedom of Information Act 2000
7. Scotland, Wales and Northern Ireland
Chapter 2 – The Comparative Jurisdictions
1. Information Rights Legislation Elsewhere
2. United States of America
3. Commonwealth of Australia
4. New Zealand
5. Canada
6. Republic of Ireland
Chapter 3 – The Influence of the European Convention on Human Rights etc
Estelle Dehon
1. The Influence of the Human Rights Act 1998 on Information Rights .
2. Article 8 of the ECHR
3. Article 10 of the ECHR
4. Other Articles of the ECHR .
5. Impact of the Human Rights Act 1998
Chapter 4 – Rights of Access under European Union Law
Anna Bicarregui
1. Background
2. The Code of Practice and Decisions 93/731 and 94/90
3. Regulation 1049/2001
Chapter 5 – Access to Personal Information under the Data Protection Act 1998
Estelle Dehon
1. General Principles
2. The Scope of the Rights: Personal Data
3. The Nature of the Rights
4. The Request
5. The Response
6. Disentitlement
7. Exemptions
8. Appeals
9. Enforcement
Chapter 6 – Access under the Environmental Information Regulations
1. Provenance of the Environmental Information Regulations
2. Environmental Information .
3. The Right to Environmental Information
4. The Response
5. Exceptions – General Principles
6. Specific Exceptions
7. Appeals and Enforcement
Chapter 7 – Public Records
1. Background
2. Public Record Bodies
3. The Preservation of Records
4. Access to Public Records: The New Regime
5. Decision-making Responsibility in Relation to Public Records
Chapter 8 – Other Domestic Rights of Access
Saima Hanif (sections 1–7), Hodge Malek QC (section 8), HHJ Shanks (section 9)
1. Local Government
2. Health, Medical and Care Records
3. Planning, Environmental, Public Health and Safety Information
4. Land Information
5. Personal Information
6. Economic and Business Information
7. Educational Records
8. Information Rights in connection with Civil Litigation
9. Information Rights in connection with Criminal Proceedings
Chapter 9 – The Right to Information
1. The Nature of Information
2. The Holding Requirement
3. Persons Entitled to Exercise the Rights
4. Bodies against which the Rights may be Exercised .
5. Scottish Bodies against which the Right may be Exercised
6. The Obligation to Disclose and Constraints on Disclosure
7. Discretionary Disclosure of Information
Chapter 10 – The Duty to Advise and Assist, Codes of Practice and Publication Schemes
Anna Bicarregui
1. The Duty to Advise and Assist
2. The Codes of Practice
3. Publication Schemes
4. Departmental Guidance
Chapter 11 – The Request
Anna Bicarregui (sections 1–6)
1. The Request for Information
2. Particularising the Request
3. Fees
4. Time for Compliance
5. Transferring Requests for Information
6. Failure to Locate Information
7. Consultation with Third Parties
Chapter 12 – Disentitlement
Anna Bicarregui
1. Excessive Cost of Compliance
2. Vexatious Requests
3. Repeat Requests
Chapter 13 – The Response
Anna Bicarregui
1. The Duty to Search
2. Non-substantive Responses
3. Refusal to Communicate
4. Communication of Information
Chapter 14 – Exemptions: General Principles
Oliver Sanders (section 6)
1. The Unit of Exemption
2. The Duty to Confirm or Deny
3. The Discretion to Maintain an Exemption
4. Classification of Exemptions
5. Interpretation of Exemptions and Onus
6. Conclusive Certificates
Chapter 15 – Prejudice and the Public Interest
1. The Public Interest
2. Weighing the Public Interest: Disclosure
3. Weighing the Public Interest: Confirmation and Denial
4. Ascertaining and Weighing Prejudice
Chapter 16 – Information Otherwise Accessible
1. Information Otherwise Accessible
2. Information Intended for Future Publication
3. Environmental Information
Chapter 17 – Security Bodies, National Security and Defence
Oliver Sanders
1. Introduction
2. The Security Bodies
3. Information Supplied by, or relating to, the Security Bodies
4. Information whose Exemption is required for National Security Purposes
5. National Security Certificates and the Operation of the Related Exemptions
6. Information Prejudicial to Defence or the Armed Forces
Chapter 18 – International and Internal Relations
Oliver Sanders (section 2)
1. International Relations
2. Internal Relations
Chapter 19 – Economic and Financial Interests
Economic and Financial Interests
Chapter 20 – Investigation, Audit, Law Enforcement and the Courts
HHJ Shanks
1. Introduction
2. Information held for purposes of Criminal Investigations or Proceedings
3. Information relating to the Obtaining of Information from Confidential Sources
4. Information whose Disclosure might Prejudice the Enforcement of Criminal Law
5. Other Law Enforcement
6. Other Investigatory and Regulatory Functions
7. Civil Proceedings
8. Audit
Chapter 21 – Privilege
Hodge Malek QC (section 2)
1. Parliamentary Privilege
2. Legal Professional Privilege
Chapter 22 – Policy Formulation and Public Affairs
Sarah Hannett
1. Introduction
2. Information Relating to the Formulation of Government Policy, etc
3. Information the Disclosure of which would be Prejudicial to Public Affairs
Chapter 23 – Health and Safety
Health and Safety
Chapter 24 – Personal Information
Estelle Dehon
1. Introduction
2. Personal Data of which the Applicant is the Data Subject
3. Personal Data of which the Applicant is not the Data Subject
Chapter 25 – Confidential Information
Richard Spearman QC
1. Breach of Confidence: Introduction
2. Conventional Breach of Confidence
3. Privacy and Breach of Confidence
4. Trade Secrets
5. Prejudice to Commercial Interests
6. International Confidences
7. Environmental Information and Confidentiality
Chapter 26 – Miscellaneous Exemptions
Oliver Sanders (sections 1–2), HHJ Shanks (sections 3–5), Estelle Dehon (section 6)
1. Communications with Her Majesty, etc
2. Honours and Dignities
3. Prohibitions on Disclosure
4. Prohibitions By or Under Enactment
5. Incompatibility with Community Obligations
6. Contempt of Court
7. Miscellaneous Exemptions under the Data Protection Act 1998
Chapter 27 – The Information Commissioners and the Information Tribunal
HHJ Shanks
1. The Functions and Duties of the Information Commissioners
2. Monitoring Compliance with the Acts
3. The First-Tier and Upper Tribunals
Chapter 28 – Appeals
HHJ Shanks
A. APPEALS UNDER THE FREEDOM OF INFORMATION ACTS
1. First Stage: Internal Reconsideration
2. Second Stage: Application to the Information Commissioner
3. Third Stage: Appeal to the Tribunals
4. Fourth Stage: Appeal from First-Tier Tribunal to Upper Tribunal
5. Fifth Stage: Appeal from Upper Tribunal to Court of Appeal
6. Judicial Review
7. Third Parties: Institution of Appeals and Participation in Appeals
B. APPEALS UNDER THE DATA PROTECTION ACT 1998
8. Ordinary Appeals
9. National Security Certificate Appeals
10. Judicial Review 884
11.Third Parties: Institution of Appeals and Participation in Appeals
Chapter 29 – Enforcement
HHJ Shanks
1. Freedom of Information Acts
2. Data Protection Act 1998
Materials
Principal legislative sources
1. Freedom of Information Act 2000
2. Data Protection Act 1998
3. Environmental Information Regulations 2004 (SI 2004/3391)
4. Public Records Act 1958
FOIA Statutory Instruments
1. Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (SI 2004/3244)
2. Freedom of Information (Time for Compliance with Request) Regulations 2004 (SI 2004/3364)
3. Freedom of Information (Excluded Welsh Authorities) Order 2002 (SI 2002/2832)
DPA Statutory Instruments
1. Data Protection (Conditions under Paragraph 3 of Part II of Schedule 1) Order 2000 (SI 2000/185)
2. Data Protection (Functions of Designated Authority) Order 2000 (SI 2000/186)
3. Data Protection (Fees under section 19(7)) Regulations 2000 (SI 2000/187)
4. Data Protection (Subject Access) (Fees and Miscellaneous Provisions) Regulations 2000 (SI 2000/191)
5. Data Protection (Subject Access Modification) (Health) Order 2000 (SI 2000/413)
6. Data Protection (Subject Access Modification) (Education) Order 2000 (SI 2000/414)
7. Data Protection (Subject Access Modification) (Social Work) Order 2000 (SI 2000/415)
8. Data Protection (Crown Appointments) Order 2000 (SI 2000/416)
9. Data Protection (Processing of Sensitive Personal Data) Order 2000 (SI 2000/417)
10.Data Protection (Miscellaneous Subject Access Exemptions) Order 2000 (SI 2000/419)
11.Data Protection (Processing of Sensitive Personal Data) (Elected Representatives) Order 2002 (SI 2002/2905)
12.Data Protection (Processing of Sensitive Personal Data) Order 2006 (SI 2006/2068)
13.Data Protection (Processing of Sensitive Personal Data) Order 2009 (SI 2009/1811)
Tribunal Rules, Orders and Practice Notes
1. Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2009/1976)
2. Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698)
3. First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 (SI 2008/2835)
4. First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 (SI 2008/2684)
5. Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal Order 2008 (SI 2008/2692)
6. Transfer of Tribunal Functions Order 2010 (SI 2010/22)
7. Appeals from the Upper Tribunal to the Court of Appeal Order 2008 (SI 2008/2834)
8. Practice Note: Protection of Confidential Information in Information Rights Appeals Before the First-tier Tribunal (1 February 2010)
9. Guidance Note 2: Permission to Appeal on or after 18 January 2010 (9 February 2010)
10.Office Note 2: Discretionary Transfers of Information Rights Appeals on or after 18 January 2010
Statutory Codes of Practice
1. Secretary of State for Constitutional Affairs' Code of Practice on the discharge of public authorities' functions under Part I of the Freedom of Information Act 2000 Issued under section 45 of the Act (laid before Parliament on 25 November 2004)
2. Lord Chancellor's Code of Practice on the management of records issued under section 46 of the Freedom of Information Act 2000 (laid before Parliament on 16 July 2009)
3. DEFRA Code of Practice on the discharge of the obligations of public authorities issued under regulation 16 of the Environmental Information Regulations 2004 (issued February 2005)
European Union Directives and Regulations
1. Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (24 October 1995)
2. European Union Regulation 1049/2001
3. Directive 2003/4/EC of the European Parliament and of the Council on Public Access to Environmental Information and Repealing Council Directive 90/313/EEC (28 January 2003)
Conventions
1. Convention on Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matters (25 June 1998) – Aarhus Convention
Precedents
1. Simple request under the Freedom of Information Act 2000
2. Request under the Freedom of Information Act 2000 where a qualified exemption is likely to be relied upon
3. Request under the Data Protection Act 1998 for personal information relating to the applicant
4. Request under the Environmental Information Regulations 2004
5. Composite request under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004
6. Request for internal review (complaint)
7. Complaint to the Information Commissioner
8. Appeal to the First-Tier Tribunal
9. Joinder Notice
Procedural Guides for Dealing with Requests for Information
1. Dealing with a request under the Freedom of Information Act 2000
2. Dealing with a request under the Environmental Information Regulations 2004
Parliamentary History of the Freedom of Information Act 2000
FOIA and FOI(S)A Comparative Table

Reviews

“Thankfully, this new text provides commentary on not just the FOIA but also related Acts which govern access to information – for example the Data Protection Act 1998 and Regulation of Investigatory Powers Act 2000. The inclusion of this material, rather than focusing primarily on the FOIA, is an excellent decision by the editor as it enables the text to provide a manageable and accurate account of the law relating to rights over information...The material is laid out logically so that even an inexperienced reader can follow the law, and the development of it, with considerable ease. Excellent reference is also made to other jurisdictions which allows the reader to understand the avenues that the law may take...The material is both accessible and insightful. The text makes excellent use of footnotes which means that large footnotes appear so that the fluidity of the main text is not spoilt. This allows the reader to quickly understand the material...In conclusion, this is an excellent text which provides an interesting and accurate account of the law relating to the access of information. I would recommend that anyone interested in this area of law should purchase this well-priced text.” –  Student Law Journal, Review of the 1st Edition which was published by Sweet & Maxwell, 2004

“In this book Coppel provides a comprehensive well indexed guide to the law of information rights… it provides a useful reference for both those working in the public sector who need to deal with requests for information under FoIA and those members of the public who want to use FoIA to gain access to publicly held information...In my view, this is a book which achieves the author's aim as stated in the preface to provide a practitioners' text, ''not just [for] . . . . legal practitioners but all those whose occupation involves seeking or handling requests for official information''” –  Marion Kinshuck, Legal Information Management, Volume 5, Review of the 1st Edition which was published by Sweet & Maxwell, 2004

“This new edition, and the first to be published by Hart, of Coppel's Information Rights is to be warmly welcomed by those with an interest in the legal regulation of accessing information in the United Kingdom...This text not only admirably sets out the main elements of the leading public law elements of these different regimes, it also provides detailed and accurate observations about how more traditionally “private law” rules have important roles to play in understanding the text's broader thematic subject matter. That is not to say that the text is packed with extraneous and irrelevant material; in fact the opposite is true. The material included is structured so that it is exceptionally useful for honing in on specific rules and cases. No doubt there is a great deal of material presented in the text, but that is not a result of self-indulgence, and perhaps more significantly the large amount of material is not reflected in an unreasonably high price. The great deal of material reflects the fact that the text is predominantly aimed at practitioners, though practitioners here must be broadly defined to include those dealing with information requests in the public sector, as much as lawyers and others attempting to prise information from those in the public sector. One has little doubt the text will be indispensable to United Kingdom practitioners, though that is not the only audience that would benefit from an acquaintance with the text. The text would also appeal to academics and would be a suitable reference text for advanced students with an interest in the area...Beyond the general orientation and intended audience for the text, the methodological content of the text also provides illustrative insights. The text provides the reader with a useful subsidiary narrative that contextualises the legislative genesis of the different rules alongside the pre-legislative scrutiny in order to assist the reader in taking a critical approach to the information laws...Information Rights is an exceptionally well-executed practitioners' monograph. It amply meets the needs of a busy practitioner in terms of detail and ease of access. It provides an academic audience with food for intellectual thought and, at times, crackles with a keen critical method. The fact that the text as a whole is in fact authored by a number of barristers and a judge, almost all of whom have some link to 4-5 Gray's Inn Square, is not apparent from reading the text – a huge compliment to the compilation of the text. The cost of the text makes it even more attractive, and it would be a bargain at double the price.” –  Daniel J Carr, Public Law Review, Volume 22

“It is becoming increasingly important that a guide be provided through the often murky and unexplained world of information law. The new edition ... proves to be that guide...The inclusion of comparative law throughout the book in the text and footnotes will prove a valuable source of thought-provoking material...There is no doubt that Information Rights is a book of extensive use for users of the information legislative regime, not only for professional lawyers but also for ordinary requestors and public authorities...Information Rights is an essential addition to the bookshelves of all those who have to navigate information law. Philip Coppel and his team of authors have produced a scholarly work of intensely practical use. It is and will continue to be an invaluable guide to people who actually have to practice in the area.” –  CJS Knight, Judicial Review

“If you're professionally involved in requesting information from officialdom, or handling such requests, this is a must-have reference book to the Freedom of Information Act and other freedom of information legalisation...If you specialize in this area, this book will keep you up to date...Within its almost 1,500 pages, this erudite and logically organized work of reference deals with the full range of issues pertaining to information rights...If you are a practitioner, then you'll infer that this is a practitioner's book and the leading work in this field...Whether you're preparing a case, or tasked with responding to a request, you will find ample research here to help you make sure that no exemption can ever get past you...As this very large volume reveals, it's jolly hard to wrench adequate answers from the grasping tentacles of reluctant officialdom. Good thing this book tells you exactly how to do it.” –  Philip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers,

“This, the third edition of Coppel's magesterial work, deals with the Act comprehensively and incisively...no one who has any serious interest in or involvement with the Act can afford to be without, or without ready access to, this important work of reference.” –  The Commonwealth Lawyer, Volume 19, No. 3

“The depth of analysis and thought that Philip Coppel brings to the topic is evident throughout....Careful analysis is a hallmark of the book which reflects, not merely an academic interest in the legal regime but a real and active interest in the wider societal issues involved in the development of the law in this area.... The text delivers excellent value for anyone working seriously in this area.” –  Review of previous edition by Rosemary Jay, Freedom of Information Journal

“Encyclopaedic and authoritative...a very useful guide to practitioners as well as those seeking official information” –  Review of previous edition in the New Law Journal

“This is not just a book for the library it is also a book to be held close at hand on any practitioner's desk, or in any public authority boardroom - the hope expressed by Coppel that his book will assist in resolving [FOI Act] complexities and in revealing its subtleties is realised in a well composed and intelligently written volume.” –  Review of previous edition in The Solicitors Journal

“...The best single resource in this area of the law.... Any practitioner who needs to consider information rights owes a considerable debt of thanks to Philip Coppel and his fellow authors.” –  Jonathan Crow QC, Review of previous edition in Public Law

“This is an outstanding piece of legal scholarship, which will provide invaluable assistance to practitioners interested in information rights whether they be based in the United Kingdom or in comparable overseas jurisdictions.” –  John Griffiths SC, Review of previous edition in Australian Journal of Administrative Law

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