UK IP Office Reject

Freedom of Information Appeal

A few weeks ago we reported that the UK Copyright Office rejected a Freedom of Information request. One of our members made a request to the United Kingdom Intellectual Property Office (IPO) that confidential submissions made to it concerning copyright legislation by various organisations be made public. The IPO had invited submissions from organisations and individuals that it would consider when planning changes to copyright legislation. 

Over 140 submissions were made most of which were published by the IPO, however six submissions were made in confidence to the IPO. Two were from individuals and four from corporate respondents; the IPO decided that they were all exempt from release under the Freedom of Information Act, that it was not in the public interest to release them and rejected the Freedom of Information request.

Our member appealed against the IPO decision arguing that scrutiny of proposed legislation by the public and Parliament can only be conducted effectively by having access to all the information the Government considered in formulating its policy. His view was that failure in this respect undermines public confidence in the effective conduct of public policy and he was concerned that our legislators in Parliament and the House of Lords would also be denied access to these submissions.

Channel 4 Confidential Submission Published

The IPO considered the appeal and decided that they could release the confidential submission made by  Channel 4 but with sensitive commercial information redacted. We have published the Channel 4 submission but the IPO would not make public the three other corporate submissions. It was the Business Support Director of the IPO, Louise Smyth, who made this decision. Referring to Section 41 of the Freedom of Information Act she argued as follows;

Section 41 is an absolute exemption if information falls within this exemption there is no need to carry out a public interest test. However the common law duty of confidence contains an inherent public interest test which must be considered in order to decide if the information is exempt.

In carrying out this review I have weighed public interest in disclosure against the wider public interest in preserving the principle of confidentiality. The submissions were provided in confidence and contain sensitive information. I have decided that the public interest in maintaining this exemption outweighs public interest in disclosure.

I have also considered the redaction of sensitive commercial information. I am able to provide you with a redacted copy of one of the submissions, which is attached.

It is unclear from her argument why section 41 does not apply to Channel 4 but does apply to the other three corporate respondents. This argument will be tested by appealing against the decision of the IPO to the Information Commissioner.

With regard to the two private submissions the IPO decided that even by redacting they believed that there is a risk that the content of the submissions could reveal the identies of the individuals. We are content with this argument, our primary concern is with corporate respondents. When corporate respondents argue for changes in public policy these arguments are clearly a matter of public interest and this will be the basis of the appeal by our member to the Information Commissioner.