Undoubtedly one of the more mind-bending exemptions to apply under the Freedom of Information Act 2000 (FOIA) is the exemption for personal information (s.40) (although sections 30 and 36 are also up there!). This is partly due to s. 40’s close link with the Data Protection Act 1998 (DPA). Not one to hog the limelight, the DPA has typically been cited in past litigation as a secondary or even tertiary issue to the main action when there is a claim for breach of confidence or breach of privacy. This led to a scarcity of judicial rulings on the DPA prior to the FOIA. However, in the Tribunal and higher court decisions flowing from the FOIA, certain aspects of the DPA have frequently been examined when public authorities seek to rely on the s. 40 exemption. Consequently there have been a number of rulings on the scope of personal data and on the ‘legitimate interests’ ground as a legal basis for disclosing such information. These rulings have been based on the DPA which itself implements the EU Data Protection Directive 95/46/EC. But the Directive is due to be replaced by an EU Regulation in the next few years. What will this mean for how the s. 40 exemption under FOIA is interpreted?
The U.S. Supreme Court today in FCC v. AT&T, Inc., reversed the U.S. Court of Appeals for the Third Circuit, holding that “personal privacy” under the Freedom of Information Act (“FOIA”) does not extend to corporations even though they are defined as “persons” under the statute. Chief Justice Roberts, writing for the Court, expressed his “trust […]