Government and Information Rights: The Law Relating to Access, Disclosure and their Regulation

This book was first published in 1990 when the information debate was in its infancy. It has provided readers with an expert analysis of the legal provisions on access to information rights, data protection and secrecy and confidentiality. The fifth edition addresses the profound changes that have affected all aspects of the relevant laws since 2011. Transparency and openness have become global themes of good governance – a point made by editions of this book since 1990. These principles have now become accepted in the international community. They feature increasingly in litigation and in the major legislation, most particularly the Freedom of Information Act 2000 and Environmental Information Regulations 2004 and the new Data Protection Act 2018 which resulted from fundamental changes in EU data protection laws (below). Other major reforms on information rights include the Re-use of Public Sector Information Regs 2015, the Protection of Freedoms Act 2012 and the surveillance reforms introduced by the Investigatory Powers Act 2016 which is subject to on-going modification and which provides a completely new framework for intelligence and surveillance in communications, the Justice and Security Act 2013, the Digital Economy Act 2017 and reforms in local government.

David Cameron claimed in 2012 in the white paper on Open Data that the UK government was the most open in the world. This theme has been continued by Mrs May. The authors will explain the wider context in which transparency is expected to operate such as open data and big data requirements and also consider the challenges of making use of such data in the operation of the public sector and the provision of public services through the Digital Economy 2017.

Since 2011, the date of the last edition, there have been the usual, unusual and numerous developments in legislation, regulations, as well as in domestic case law involving the Information Commissioner, Information tribunals and in the courts.

The UK Supreme Court has made several ground-breaking judgments in Freedom of Information (FOIA) case law including that on the subject of disclosure of Prince Charles’ correspondence with Ministers where the Supreme Court ruled that the Attorney General had acted unlawfully in issuing a veto preventing disclosure: Evans v Attorney General [2015] UKSC 21. The Supreme Court has also extended the ambit of the common law in relation to access to information and transparency in a case with enormous analogical potential: Kennedy v Charities Commission [2014] UKSC 20. There have also been important developments in EU law, ECHR law and in international law.

Data Protection law has also featured prominently in the case law of the UK Supreme Court and led to a ruling in July 2016 that Scottish proposals for a ‘children’s protector’ were in breach of Art 8 ECHR and the CFHR in so far as they allowed for transfers of personal data without adequate legal controls and safeguards: The Christian Institute v The Lord Advocate  [2016] UKSC 51.

Under EU law the Data Protection laws have been revised, resulting in the recent publication of the General Data Protection Regulation and Law Enforcement Directive. Whether the UK remains within the EU or not, the UK will have to comply with the EU framework in order to transfer data to EU member states. This point is emphasised in draft agreements with the EU on our withdrawal from the EU in the draft treaty and future relationship statement. A no deal scenario would have dire consequences for data exchange. Overseas transfer of data has featured in very important ECJ case law (Case Case 362/14 Schrems [2015]) involving data transfer to the USA. Domestic case law on data protection is becoming voluminous hardly surprising when the UK Parliamentary website states that the Data Protection Act 1998 is the most requested piece of legislation by viewers.

In March 2016 the review of the FOIA by an independent committee appointed by the Ministry of Justice concluded that the basic framework of FOIA was working well. It was widely reported that the committee would eviscerate the Act. This has not happened. Far from it. Several sensible reforms were suggested. These need to be analysed and will be acted upon. Other legislative reforms that have taken place in relation to FOIA will be examined.

This new edition will continue to inform the reader of the nature of the voluminous legal provisions on access and transparency in addition to FOIA and DPA to which government, central and local and devolved, as well as governmental institutions more widely, are subject. DPA also covers the private sector. The new edition will analyse these provisions and their legal significance and impact and suggest reforms.

The new edition would give greater prominence to the Environmental Information Regulations. A chapter would be devoted to these regulations. These, like FOIA, have spawned an enormous case law at all levels since the last edition. Although derived from EU law they are part of international obligations to which the UK has agreed to in the Aarhus Convention. Like the Data Protection laws these UK laws would likely remain unchanged by Brexit. If Brexit comes to pass vast tracts of EU law on the environment, public contracts, trade, regulation and finance and which are relevant to our book will remain as obligatory. These points have been made by the Council of the Bar of England and Wales in its position paper on the legal effects of Brexit.

The European Convention on Human Rights has been developed by the Strasbourg court and the UK courts to promote principles of transparency and openness. There has been discussion and consultations and a commission examining the replacement of the Human Rights Act by a British Bill of Rights and withdrawal from the ECHR. Regardless of what may occur, and even opponents of the ECHR have said that all the rights in the ECHR will remain in a domestic Bill of Rights, the development of rights of access to information and transparency as human rights, under the ECHR and domestic law, will proceed unabated. This development is fully analysed.

As well as data protection the UK courts have been developing the law of personal privacy. These developments have been emphasised in the judgments of PJS v Newsgroup Newspapers ltd [2016] UKSC 26. The Leveson report on press standards was by-passed but the implications of that report and also reforms in defamation will be analysed.

The information explosion has left no-one untouched.

Patrick Birkinshaw is the author of Government and Information: The Law Relating to Access, Disclosure and their Regulation, and Government and Information Rights