Tweet
The Information Commissioner's Office (ICO), which oversees compliance with the Freedom of Information (FOI) Act, has published guidance on what information local authorities can and cannot release.
Though FOI legislation says that public authorities should release information about how they operate it also says that authorities should not disclose information whose release is prohibited by other laws.
The Financial Services and Markets Act (FSMA) says that authorities should not disclose certain confidential financial information and extends that protection to bodies who have received the information from a public body.
The ICO's guidance explains the interaction of the two laws, which is complicated further by the fact that some information is exempt from the FSMA's protection.
Information is exempt from that protection if it is required for the performnce of a 'public function', though an FOI request itself cannot qualify as that 'public function'.
"Section 348 of the FSMA can prevent the disclosure of confidential information by a '’primary recipient' (which includes the FSA [Financial Services Authority] and Secretary of State), or if it is obtained from a ''primary recipient'," said the guidance.
"The disclosure of confidential information is allowed under the FSMA if it is for the performance of a 'public function'; however complying with an FOIA request is not regarded as a 'public function'," it said.
The guidance described a case which was heard by the Information Tribunal which examined this point. An individual objected to the FSA's rejection of an FOI request, saying that they should not rely on section 348 of the FSMA.
He argued that fulfilling the FOI request was itself a public function and therefore the FSMA's bar on the release of the information did not apply. The Information Tribunal did not agree.
"Compliance with the requirements of FOI [Act] is not the performance of a function, public or private, of FSA," said the Tribunal in its ruling. "It is merely obedience to the statute."
The guidance explains what qualifies as the kind of 'confidential information' which the FSMA bars from release.
It says that it is "information which relates to the business or other affairs of any person; and was received by the primary recipient for the purposes of any functions of the FSA; or the Secretary of State under any provision made under the FSMA and has not already been made available to the public without breaching the section 348 of the FSMA; or been anonymised".
ICO publishes guidance on some exemptions from FOI requests | Pinsent Masons LLP
Though FOI legislation says that public authorities should release information about how they operate it also says that authorities should not disclose information whose release is prohibited by other laws.
The Financial Services and Markets Act (FSMA) says that authorities should not disclose certain confidential financial information and extends that protection to bodies who have received the information from a public body.
The ICO's guidance explains the interaction of the two laws, which is complicated further by the fact that some information is exempt from the FSMA's protection.
Information is exempt from that protection if it is required for the performnce of a 'public function', though an FOI request itself cannot qualify as that 'public function'.
"Section 348 of the FSMA can prevent the disclosure of confidential information by a '’primary recipient' (which includes the FSA [Financial Services Authority] and Secretary of State), or if it is obtained from a ''primary recipient'," said the guidance.
"The disclosure of confidential information is allowed under the FSMA if it is for the performance of a 'public function'; however complying with an FOIA request is not regarded as a 'public function'," it said.
The guidance described a case which was heard by the Information Tribunal which examined this point. An individual objected to the FSA's rejection of an FOI request, saying that they should not rely on section 348 of the FSMA.
He argued that fulfilling the FOI request was itself a public function and therefore the FSMA's bar on the release of the information did not apply. The Information Tribunal did not agree.
"Compliance with the requirements of FOI [Act] is not the performance of a function, public or private, of FSA," said the Tribunal in its ruling. "It is merely obedience to the statute."
The guidance explains what qualifies as the kind of 'confidential information' which the FSMA bars from release.
It says that it is "information which relates to the business or other affairs of any person; and was received by the primary recipient for the purposes of any functions of the FSA; or the Secretary of State under any provision made under the FSMA and has not already been made available to the public without breaching the section 348 of the FSMA; or been anonymised".
ICO publishes guidance on some exemptions from FOI requests | Pinsent Masons LLP
