The question whether the right to receive information under Article 10 ECHR affords members of the public a specific right of access to information held by public authorities is an important one for information law practitioners. This is a question which was explored in some detail by the Supreme Court in the case of Sugar v BBC. In Sugar, Lord Brown, who gave the principal judgment on the Article 10 issue, concluded that, the fact that: ‘every public authority has in one sense “the sensorial power of an information monopoly” in respect of its own documents’ does not mean that the Article 10 right to receive information was interfered with whenever a public authority refused access to information, particularly where the authority was acting consistently with domestic legislation governing access to information (§94). Thus, the fact that the BBC was not obliged under FOIA to disclose to Mr Sugar a particular report on its coverage of Middle Eastern affairs did not amount to an interference with Mr Sugar’s Article 10 rights (see further Julian Milford’s detailed post on the Sugar judgment).

The conclusions reached in Sugar have very recently been considered by the Court of Appeal in Kennedy v Charity Commission [2012] EWCA Civ 317 (see Robin Hopkins’ earlier post on the convoluted history of the Kennedy litigation). In Kennedy, a request had been made to the Charity Commission for disclosure of information relating to a charity set up by George Galloway. The Charity Commission refused to disclose the information on the ground that it was exempt under s. 32(2) FOIA (information held for the purposes of an inquiry). The effect of s. 32(2), when read together with ss. 62 and 63 FOIA, is that any information which is exempt under s. 32(2) remains exempt for 30 years. As the Court of Appeal observed, this ‘30 year rule’ applies irrespective of the content of the information, the harmlessness of the disclosure, the public interest in disclosure and the willingness of those who deployed the information in the course of the inquiry for it to be disclosed (§7). Mr Kennedy, a journalist, argued that this result unlawfully interfered with his right to receive information under Article 10. He went on to argue that the provisions of FOIA should be read down so as to enable the s. 32 exemption to be disapplied once the relevant inquiry has concluded. The tribunal (which decided Mr Kennedy’s appeal on the Article 10 issue before the Supreme Court’s judgment in Sugar was handed down) accepted Mr Kennedy’s argument. The Court of Appeal concluded that it was bound by the judgment in Sugar and, hence, Mr Kennedy’s case failed.

The Court of Appeal analysed the Sugar judgment in this way: 

• Only three members of the Supreme Court panel addressed the Article 10 issue: Lord Brown; Lord Mance and Lord Wilson. Lord Brown gave the principal judgment.

• Having analysed the relevant Strasbourg jurisprudence, Lord Brown concluded that the Article 10 right to receive information did not embrace a general right to access information held by the State. He went on to comment that, even had Article 10 embraced such a general right, there would have been no unlawful interference with that right on the facts of the Sugar case. This was because it was open to the State to legislate for a blanket exclusion for information held for the purposes of journalism, as was the case under FOIA. Lord Mance agreed with Lord Brown (§§42-45).

• Lord Wilson may have analysed the issues under Article 10 somewhat differently. However, as he made clear in his judgment, he agreed with the essence of Lord Brown’s judgment (§46 & 50).

• Their Lordships’ analysis of the Article 10 issue did not amount to obiter commentary. Instead, it formed part of the ratio of the judgment in Sugar (§§48-52).

• The judgment in Sugar was determinative of the Kennedy appeal. This was notwithstanding that Kennedy was factually distinguishable from Sugar, particularly as Mr Kennedy was a journalist and Mr Sugar was not. Lord Brown had specifically considered whether it would have made any difference to the application of Article 10 if Mr Sugar had been a journalist or some other variety of ‘social watchdog’. He concluded that it would have made no difference (see §§53-55).

• Even if Lord Brown’s judgment did not amount to the ratio of Sugar, the Court of Appeal would still have followed that judgment on the basis that it was a ‘very recent authoritative pronouncement by the Supreme Court’ (§59). 

Thus, Sugar was fatal to Mr Kennedy’s appeal before the Court of Appeal. However, importantly, the Court of Appeal gave Mr Kennedy permission to appeal to the Supreme Court. In granting permission, the Court of Appeal took into account that Mr Kennedy’s case was factually distinguishable from Mr Sugar’s case, particularly because Mr Kennedy was a journalist, whereas Mr Sugar was not, and also, in contrast with the BBC, the Charity Commission was not itself discharging journalistic functions. In taking these factually distinguishing features into account, the Court of Appeal appears to have been of the view that the Article 10 question may call for a different answer to the one arrived at in Sugar where the applicant is himself a journalist and the applicant’s request for disclosure does not bring into play the public authority’s own right to freedom of expression under Article 10. The Court also alluded to the seemingly draconian effects of the 30 year rule, as applied under s. 32(2) (see §62). For further analysis of the arguments in play in the Kennedy litigation, see Tim Pitt-Payne QC’s discussion of the Article 10 arguments in his paper which is posted here.

The First-Tier Tribunal has today handed down two important decisions in appeals concerning requests for disclosure of information relating to the Government’s controversial policy to radically overhaul the NHS: Department of Health v IC & John Healey MP (EA/2011/0287) and Department of Health v IC & Cecil (EA/2011/0286). Healey concerned a request for disclosure of a ‘transition risk register’ (TRR), essentially a set of risk assessments relating to the transition from the NHS as it was in 2010 to the NHS as it is proposed it should be once the reforms set out in the July 2010 White Paper have been implemented. Cecil concerned a request for disclosure of the ‘strategic risk register’ (SRR). The SRR contains the risk assessments for the NHS as a whole on a strategic and ongoing basis. In both cases, the DOH refused disclosure on the ground that disclosure of the registers would have a ‘chilling effect’ on the development of government policy and, accordingly, were exempt from disclosure under s. 35(1)(a) FOI (a.k.a. ‘the safe space’ exemption). The IC found that, whilst s. 35(1)(a) was engaged in respect of the registers, the public interest balance tipped in favour of their disclosure. Interestingly, the Tribunal dismissed the DOH’s appeal in respect of the TPRR but allowed it in respect of the SRR. The written reasons, which have yet to be promulgated, are no doubt going to make for interesting reading; so watch this space.

Thinktanks are now a well-entrenched feature of our political landscape. They potentially wield significant influence over policies and policy-makers. However, they are plainly not ‘public authorities’ for the purposes of the information access regime and, hence, are not susceptible to the application of FOIA or the EIR. That said, information relating to these organisations may in certain instances be held by public authorities which do fall within the purview of the access legislation. The question of whether that information is disclosable under FOIA or the EIR is one which was recently considered by the First-Tier Tribunal in Montague v IC (EA/2011/0177). In Montague, a request was made by a journalist for disclosure of the identity of an individual who had made a sizeable donation to Global Warming Policy Foundation (GWPF), a climate change sceptic thinktank chaired by Lord Lawson. The information in question was held by the Charity Commission (CC) as it had been provided to the CC by GWPF in the course of GWPF applying for charitable status. The requested information clearly amounted to the ‘personal data’ of the donor. The principal issue which arose in Montague was therefore whether the IC had correctly concluded that that data was exempt from disclosure under s. 40(2) FOIA. Mr Montague argued before the Tribunal that the IC had erred when he concluded that the information was exempt. This was not least because he had underestimated the GWPF’s influence over Government and policy-makers and, by extension, the public interest in accessing information which revealed who had funded GWPF.

The Tribunal rejected Mr Montague’s case. In a conclusion which will no doubt raise eyebrows in certain quarters, the Tribunal found that there was no evidence before it that GWPF exerted any actual influence over policy-makers. This was despite the fact that GWPF had itself claimed in its annual report that it exerted ‘significant influence’ over policy-makers. Importantly, the Tribunal also found that the donor in question was not an individual who had sought a career in the public eye. It went on to conclude that the charity was not ‘so influential as to make the disclosure of its financial affairs a matter of legitimate public interest outweighing the privacy rights of the data subject’ (para. 36). The Tribunal found that the result would have been the same had the EIR rather than FOIA been the applicable regime. However, it also commented obiter that the EIR did not apply to the information in any event as it did not amount to ‘environmental information’.

Timothy Pitt-Payne QC and Robin Hopkins spoke at the 11KBW Information law seminar; Data Protection for the 21st Century: The EU Reform Proposals on 21st February 2012. The papers from this seminar are now available to download – Robin Hopkins paper – click here ; Timothy Pitt-Payne QC paper click here

The question of whether and to what extent the personal data of public servants should be disclosed under FOIA is often a difficult one for public authorities to resolve. In the MPs’ expenses cases, the Commissioner and the Tribunal took a firm view that the legitimate interests of the public in accessing information relating to expenses outweighed any claims to privacy which the MPs might have. More recently, the Secretary of State has issued a code of recommended practice to local authorities inviting publication of salaries of senior officers (see further this earlier post on the code). But what level of data transparency is required if the personal data in question does not concern the expenditure of public monies but rather the way in which the private lives of public servants may intrude on their public duties? How does the s. 40 exemption play out in those circumstances? It was precisely these questions which the Tribunal was called upon to consider in the recent case of Greenwood & Bolton Metropolitan Borough Council v IC (EA/2011/0131).

In Greenwood, a request was made for disclosure of information revealing the declarations of interest which had been made by officials employed by Bolton MBC. The request was not limited either by reference to the nature of the interests in question or the seniority of the individual officers, although as it happened the relevant register of interests only recorded declarations from principal officers and above. The withheld information by its very nature comprised information about what individual officers got up to when they were not at work and, as such, was inherently private information. However, it was private information which plainly had a bearing on the discharge of the officers’ duties, hence its inclusion on the register of interests.

In a nuanced judgment, the Tribunal concluded that: the names, departments, sections and job titles of all officers who had made entries on the register should be disclosed and that, in addition, in relation to chief officers, information revealing other professional commitments (e.g. consultancies) should be disclosed but that the remainder of the information should be withheld. In reaching these conclusions, the Tribunal rejected arguments advanced by the Council that disclosure of any of the data would have a ‘chilling effect’ on the system of declarations. In its view, officers would still be inclined to make declarations, the disclosure notwithstanding, particularly because of the ‘auditor effect’, namely ‘disclosure would enable members of the public to scrutinize the information and challenge any inaccuracies or omissions’ which was ‘likely to add frankness in declaration’ (para. 30). However, it accepted that withholding the bulk of the requested information was justified. This was particularly in view of the facts that disclosure of some of the information would be likely to cause substantial distress and would be extremely intrusive into the lives of officers and, further, disclosure would interfere with the private lives of third parties involved in the interest in question (paras. 33-43). The decision effectively leaves the public in a situation where it knows that an officer has identified a potential conflict of interest but not why the conflict arose, unless that is the conflict relates specifically to the professional commitments of a chief officer.