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ICO Decision Notice - FS50441903

ICO Decision Notice - FS50441903

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Published by: AlexanderHanff on Oct 29, 2012
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12/04/2012

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Reference: FS504419031
 Freedom of Information Act 2000 (FOIA)Decision notice
Date: 16 October 2012Public Authority: Information CommissionerAddress: Wycliffe HouseWater LaneWilmslowSK9 5AFComplainant: Alexander Hanff Address: 26 Prospect StreetLA1 3BJ
Note: This decision notice concerns a complaint made against theInformation Commissioner (the Commissioner). The Commissioneris both the regulator of the FOIA and a public authority subject tothe FOIA. He is therefore under a duty as regulator to make aformal determination of a complaint made against him as a publicauthority. It should be noted, however, that the complainant has aright of appeal against the Commissioner’s decision, details of whichare given at the end of this notice. In this notice the term ‘ICO’ isused to denote the ICO dealing with the request, and the term ‘Commissioner’ denotes the ICO dealing with the complaint.
Decision
1. The complainant made a freedom of information request to the ICO forcorrespondence with the Department for Culture Media and Sportregarding the changes to the e-privacy directive. The ICO disclosedsome information falling within the scope of the request but otherinformation was withheld under the section 36(2)(b)(ii) (inhibit free andfrank exchange of views) and section 42 (legal professional privilege)exemptions. The Commissioner has investigated the complaint and hasfound that both exemptions are engaged and the public interest inmaintaining each exemption outweighs the public interest in disclosure.The Commissioner requires no steps to be taken.
 
Reference: FS504419032
Background
2. The Privacy and Electronic Communications (EC Directive) Regulations2003 cover the use of cookies and similar technologies. Cookies aresmall files which are downloaded onto a computer when a user visits awebsite. They allow a website to recognise the computer and can dovarious things such as remembering your preferences.3. The 2003 regulations originally implemented a European Directive 2002/58/EC – which was concerned with the protection of privacy in theelectronic communications sector (“the e-privacy directive”). In 2009the e-privacy directive was amended by a further EU directive –2009/136/EC – which included a requirement to obtain consent for theuse of cookies and similar technologies. Governments in Europe haduntil 25 May 2011 to introduce the changes into their own law and theUK introduced the amendments through The Privacy and ElectronicCommunications (EC Directive) (Amendment) Regulations 2011. Furtherdetails are available from the Commissioner’s guidance issued on theuse of cookies and similar technologies.
1
 
Request and response
2. On 10 January 2012 the complainant made a freedom of informationrequest to the ICO which read as follows:
“Please provide copies of all communications between the Department for Media, Culture and Sport (and/or Ed Vaizey) and the InformationCommissioner’s Office (and/or Christopher Graham) between January 1
st 
 2011 and May 26
th
2011 with regards to changes to the ePrivacy Directive due to be transposed into UK Law by 26
th
May 2011.” 
3. The ICO responded on 7 February 2012 and provided some informationwithin the scope of the request (with some personal informationredacted). However it refused to provide other information that it held,stating that this information was exempt under sections 36(2)(b)(ii) and
1
 http://www.ico.gov.uk/for_organisations/privacy_and_electronic_communications/the_guide /cookies.asp 
 
Reference: FS50441903342. Names of some officials and other personal data was redacted underthe section 40 exemption (personal information).4. The complainant requested an internal review on 8 February 2012.5. The ICO presented the findings of its internal review on 2 March 2012 atwhich point it upheld its original position in relation to sections36(2)(b)(ii) and 42.
 Scope of the case
6. The complainant contacted the Commissioner to complain about thedecision to refuse his request under section 36(2)(b)(ii) and section 42of the Act. The complainant did not challenge the ICO’s application of section 40.
Reasons for decision
Section 42 – legal professional privilege7. The Commissioner has first considered the application of section 42which provides for an exemption for information in respect of which aclaim to legal professional privilege could be maintained in legalproceedings.8. Legal professional privilege is a common law concept that protects theconfidentiality of communications between a lawyer and client. It hasbeen described by the Information Tribunal as:
“a set of rules or principles which are designed to protect theconfidentiality of legal or legally related communications and exchangesbetween the client and his, her or its lawyers, as well as exchangeswhich contain or refer to legal advice which might be imparted to theclient, and even exchanges between the clients and third parties if suchcommunication or exchanges come into being for the purpose of  preparing for litigation.” 
2
 
2
Bellamy v The Information Commissioner and the Secretary of State for Trade & Industry[EA/2005/0023], para. 9.

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