Comments on: Parliament exempt from own law; regulator powerless to order disclosure http://www.yrtk.org/2006/parliament-exempt-from-own-law-regulator-powerless-to-order-disclosure/ A guide to the Freedom of Information Act & other access laws Fri, 12 Mar 2010 12:01:24 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Nick Evans http://www.yrtk.org/2006/parliament-exempt-from-own-law-regulator-powerless-to-order-disclosure/comment-page-1/#comment-3503 Nick Evans Thu, 21 Sep 2006 15:07:32 +0000 http://www.yrtk.org/2006/parliament-exempt-from-own-law-regulator-powerless-to-order-disclosure/#comment-3503 The fact that s.36(2) imports a reasonableness test (the certificate can only be given if it's the Speaker's reasonable opinion that the information release will be prejudicial) does imply that a review must be possible of whether the Speaker was reasonable to hold that opinion. The Information Tribunal might well feel that it's outside their jurisdiction, but it would probably be open to the IC, or indeed Heather, to seek a judicial review of the decision to give the certificate. The fact that s.36(2) imports a reasonableness test (the certificate can only be given if it’s the Speaker’s reasonable opinion that the information release will be prejudicial) does imply that a review must be possible of whether the Speaker was reasonable to hold that opinion. The Information Tribunal might well feel that it’s outside their jurisdiction, but it would probably be open to the IC, or indeed Heather, to seek a judicial review of the decision to give the certificate.

]]> By: Marcus Turle http://www.yrtk.org/2006/parliament-exempt-from-own-law-regulator-powerless-to-order-disclosure/comment-page-1/#comment-3443 Marcus Turle Fri, 15 Sep 2006 11:35:53 +0000 http://www.yrtk.org/2006/parliament-exempt-from-own-law-regulator-powerless-to-order-disclosure/#comment-3443 Heather I haven't read this decision notice (it's not up on the ICO website yet) but, as a lawyer specialising in freedom of information, I'm interested in the comment that the Commissioner is "powerless to order disclosure" in the face of a s.36 certificate. I have had cause to think about this in another context and it is indeed striking that while s.60 of FOIA gives a right of appeal against certificates issued under ss.23 and 24 (both relating to security matters), there seems to be no equivalent for s.36. I am not convinced, however, that precludes a challenge and I am very surprised if, as your article suggests, the Commissioner has taken this view. Marcus Turle Partner, Field Fisher Waterhouse Heather

I haven’t read this decision notice (it’s not up on the ICO website yet) but, as a lawyer specialising in freedom of information, I’m interested in the comment that the Commissioner is “powerless to order disclosure” in the face of a s.36 certificate. I have had cause to think about this in another context and it is indeed striking that while s.60 of FOIA gives a right of appeal against certificates issued under ss.23 and 24 (both relating to security matters), there seems to be no equivalent for s.36. I am not convinced, however, that precludes a challenge and I am very surprised if, as your article suggests, the Commissioner has taken this view.

Marcus Turle
Partner, Field Fisher Waterhouse

]]> By: heather http://www.yrtk.org/2006/parliament-exempt-from-own-law-regulator-powerless-to-order-disclosure/comment-page-1/#comment-3441 heather Fri, 15 Sep 2006 10:42:20 +0000 http://www.yrtk.org/2006/parliament-exempt-from-own-law-regulator-powerless-to-order-disclosure/#comment-3441 As an addendum: Mike Granatt from the Speaker's Office has been in touch to say that they have found a record of the certificates. Four certificates (including the one sent to the Commissioner) have been issued. The other three were issued to individuals requesting information under the Freedom of Information Act. Two were issued under s.36 (prejudicial to the effective conduct of public affairs), including my case, and two more under s.34 (parliamentary privilege. So far, my case is the first instance where a certificate was issued to the Commissioner to block disclosure. As an addendum: Mike Granatt from the Speaker’s Office has been in touch to say that they have found a record of the certificates.

Four certificates (including the one sent to the Commissioner) have been issued. The other three were issued to individuals requesting information under the Freedom of Information Act. Two were issued under s.36 (prejudicial to the effective conduct of public affairs), including my case, and two more under s.34 (parliamentary privilege. So far, my case is the first instance where a certificate was issued to the Commissioner to block disclosure.

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