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Wednesday, 7 May 2014

Information about alleged vehicle defect does not have to be disclosed

In a decision of the Information Commissioner [2014] UKICO FS50527543 the complainant had requested information held by VOSA regarding the Porsche Cayman vehicle, and in particular the VOSA safety evaluation of the vehicle throttle malfunction. The Driver and Vehicle Standards Agency stated that the information was exempt from disclosure under section 44 of the FOIA (prohibitions on disclosure), by virtue of the Enterprise Act 2002. Section 44(1)(a) of the FOIA says that information is exempt if its
disclosure is prohibited by, or under, any enactment.

Section 237 of the 2002 Act makes it an offence to disclose 'specified information' which relates to the affairs of an individual, or business of an  undertaking, during the lifetime of the individual or while the undertaking continues to exist. Section 238 clarifies that information is specified information if it comes to a public authority in connection with the exercise of its functions. The Information Tribunal has previously been asked to consider the use of section 237 as a statutory prohibition on disclosure and it has concluded it can be used in this way (Dey v ICO and OFT (EA/2006/0057)).

The Commissioner considers that the requested information is ‘specified information’ as defined under EA2002, section 238 (1) (c). This is because it has come to the DVSA in connection with the exercise of a function it has under, or by virtue of, 'such subordinate legislation as the Secretary of State may by order specify for the purposes of this subsection.' As the enforcement authority responsible for vehicle safety, the DVSA was exercising its function under the General Product Safety Regulations 2005. Those regulations (which implement the General Product Safety Directive 2001/95/EC) are subordinate legislation specified by the Secretary of State, and so fall within category (c) of section 238 (1) of the EA2002.

The Commissioner's decision is that the DVSA has correctly applied this exemption and does not need to take any further action.

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