Professional Documents
Culture Documents
Recommendations
7. It is recommended that the conflict between ASPA and FOIA is resolved so that universities do not have to rely on the order of a Tribunal as protection from prosecution under section 24 of ASPA.
FOI 08
8. As a wider issue, the Government should proactively attempt to identify and resolve any other conflicts between FOIA and existing law, rather than relying on an educational charity bearing the costs of challenges through the tribunal system. 9. The ICO should make a judgement on all claimed exemptions when issuing decision notices, to avoid repetitive and costly tribunal hearings.
13. The Universitys reliance on these exemptions was upheld on internal review, and so BUAV appealed to the ICO for a review of the request.
FOI 08
16. The ICO did not go on to consider the grounds of health and safety and commercial interests. This proved to be a costly omission for the University.
Court of Appeal
21. The University applied for leave to appeal the Tribunals decision to the Court of Appeal on both of the preliminary issues. In a decision dated 29 June 2011, the Tribunal granted leave to appeal to the Court of Appeal on limited grounds, with respect to the criminal offence at section 24 of ASPA only. Leave to appeal was not granted with respect to the issue of whether or not the information was held by the University. 22. On 7 June 2011, the University received the personal view of a Home Office Inspector on the possible disclosure of the project licences under FOIA. Her view was that if there was release of the information held within either of the two project licences, there would have been an offence committed under section 24 of ASPA, by one (or more) of the statutory post holders. She felt that she would be obliged to report to the Secretary of State that section 24 of the Act had not been complied with, and to advise him on the action to be taken regarding the people involved in the release. 23. The University made contact with the Home Office to request an official view and to determine what their position would be if the University applied for them to be joined as an additional party to the appeal. The Home Office reply, dated 20 July 2011, stated that their position was that any statements they make about section 24 of ASPA are fact specific, and as they hadnt been involved in the case they would rather not make any comment. On the second point, they stated that the Secretary of State had no current plans to apply to join the proceedings, but that they would consider the Universitys application on its merits at the appropriate stage.
FOI 08
24. The University applied to the Court of Appeal for additional leave to appeal on the grounds of whether or not the information was held, and also applied for the Home Office to be joined as an additional party to the appeal. 25. In an order of the court dated 11 November 2011, the Court of Appeal refused permission to appeal on the grounds of whether or not the information was held. The court also refused permission to join the Home Office as an additional party. The Home Office had also given the view that they might well not actively participate in any event. 26. Given the Tribunal view that there could be no criminal offence if the information was held by the University, the prospect of success on the limited grounds was low. The University decided not to pursue this option any further and accepted the views of the Tribunals.