Pursuant to the Government’s transparency drive, the Department for Communities and Local Government has begun consulting on its proposed statutory code of recommended practice for local authorities on data transparency, which is intended to complement FOIA and the EIR. The draft code aims in particular to assist the public in understanding local authorities’ decisions on funding voluntary organisations. The Government proposes to make the publication of expenditure above £500 mandatory, and to publish salary data by reference to salary thresholds (publish if above £58,200), but will consider whether other reference points (such as job title or function) would be more suitable. It also seeks views (in accordance with its “demand-led” ethos) on particular types of data set which local authorities should be required to publish. Click here to read the consultation paper, and for details of how to respond.
TRIBUNAL ORDERS DISCLOSURE OF POLICING CAMERA LOCATIONS
April 16th, 2011 by Robin HopkinsThose interested in information law in the context of policing will wish to note the very recent Tribunal decision in Mathieson v IC and Devon and Cornwall Constabulary (EA/2010/0174).
Automated Number Plate Recognition (ANPR) cameras are strategic policing tools used by a number of forces. Mr Mathieson asked Devon and Cornwall Constabulary to provide him with the locations of its ANPR cameras. It refused, relying on the prejudice-based qualified exemptions at s. 31(1)(a) (prevention or detection of crime) and s. 31(1)(b) (apprehension or prosecution of offenders). The Commissioner considered that the public interest arguments – though finely balanced – favoured the maintenance of these exemptions.
The Tribunal agreed that these exemptions were engaged, but disagreed on the public interest, and ordered disclosure. It considered that the Commissioner had overlooked a number of relevant factors.
First, this is a privacy issue: ANPR cameras capture vast amounts of personal data; there is therefore substantial public interest in scrutiny of their use (further illustrated by parliamentary questions on the subject). Secondly, location data alone would not undermine policing – information on factors such as policing tactics, data and analytical capabilities were equally necessary.
Furthermore, the Constabulary had put forward weak arguments: the Tribunal was unimpressed by its attempt to rely on reports by other police forces on their use of ANPR cameras, and by its focus on issues such as the potential for vandalism – which is not sufficiently connected to the interests protected by ss. 31(1)(a) and (b).
NEW COURT OF APPEAL JUDGMENT ON DISCLOSURE OF PAST CONVICTIONS
April 15th, 2011 by Robin HopkinsThe Court of Appeal has today given judgment in H and L v A City Council [2011] EWCA Civ 403. This is an important decision on Article 8 ECHR in the context of the disclosure of information on past convictions.
The case involved a seriously disabled man, H, and his partner L, who was also seriously disabled. They were active in the disability movement, both as campaigners and in running a company that provided consulting services on disability issues to public authorities. They employed personal assistants in their home, paid for with funds from the local authority. H had been convicted of a serious sexual offence against a child in 1993. His home local authority was aware of this, but took no action until 2009, when it was contacted by a second local authority where H ran a disability charity. It transpired that H had been committed for trial on another charge of an offence against a child, though he was subsequently acquitted. It also came to light that H had a previous conviction for failing to disclose his unspent convictions, and that he was being referred to the Independent Safeguarding Authority.
H’s local authority reacted by convening a number of strategy meetings involving the relevant professionals, without informing H. It decided to begin paying H and L’s care assistants directly (for audit trail reasons) rather than by payments to H and L themselves. As regards disclosure, it took three decisions: (i) it disclosed to 9 organisations with which H was involved an outline of its concerns and of all the facts giving rise to those concerns, (ii) it told H and L that it reserved the right in future to contact any other organizations or persons and express these same concerns if it felt the need arose, (iii) it informed the personal assistants of its concerns and the underlying facts.
H and L brought judicial review and Article 8 proceedings. At first instance (see the Panopticon post here), HHJ Langan QC found for the local authority on the lawfulness of disclosures (i) and (ii), but against it on disclosure (iii). He also found that the new payment regime imposed by the local authority was unlawful.
The Court of Appeal found that all of the disclosure decisions were unlawful: the crucial factor was that none of H’s current involvements brought him into contact with children. Therefore, the local authority’s blanket approach to all 9 organisations was unfair and disproportionate. Its decisions had also been procedurally unfair, in that H had not been allowed to make any representations. The new payment regime was motivated by the disclosure decisions, and therefore also unlawful.
CHANNEL 4 APPEAL: FOR FOIA PURPOSES, CONTRACTS ARE SEVERABLE
March 23rd, 2011 by Robin HopkinsChannel 4 v IC and BSkyB (EA/2010/0134) saw the Tribunal consider a short, but potentially very significant point concerning the application of s. 43(2) FOIA, the exemption for commercial confidentiality, to long and complex contracts.
Channel 4 argued that where the substantial parts of a long and detailed contract are exempt under s. 43(2), then the whole contract is exempt. In other words, the public authority is not required to analyse the contract on a clause-by-clause basis. The Tribunal rejected all of Channel 4’s arguments in support of this position – including arguments based on the construction of s. 43(2), a comparison with the EIR, principles of contract, Veolia, ECHR rights and the cost and expense involved. The established approach, which requires clause-by-clause consideration of the application of exemptions, therefore remains intact.
S. 35 FOIA AND THE DEVELOPMENT OF LEGISLATION – LATEST TRIBUNAL DECISION
March 23rd, 2011 by Robin HopkinsThe Tribunal’s recent decision in Makin v IC (EA/2010/0080 & 81) looks at the application of s. 35 FOIA, the qualified exemption for the formulation and development of government policy, in circumstances where the policy in question was effected through parliamentary legislation. In particular, the requested information concerned the proposal in what was then the Legal Services Bill to continue the exemption of government lawyers from professional regulation, including the requirement to pay for a practising certificate.
The Tribunal considered the application of subsections 1(a), (2) and (4) of s. 35.
It had no hesitation in confirming that s. 35(1)(a) was engaged, relying on the well-established breadth of terms such as “relates to”. For the purposes of s. 35(2), the Tribunal found that no “statistical information” (a working definition of which was taken from the Ministry of Justice guidance of May 2008) was involved.
As regards s. 35(4) – the subsection concerning factual information used to inform decision-making – the Tribunal found that this subsection “should apply where it was relatively obvious that what was being provided was factual information for the purpose of informing the decision–taker on the background”. In adopting this approach, it applied the guidance from the leading case of DWP v Information Commission (EA/2006/0040), where the Tribunal held that, on the spectrum between pure advice and pure fact, “where the information is firstly, so inextricably connected to the deliberative material that it is difficult to distinguish and secondly, where the vast weight of material is non-factual information, we consider Parliament did not intend the sub-section to apply”.
An important point from this case is the Tribunal’s finding that whenever s. 35 is under consideration, public authorities and the IC must consider whether s. 35(4) applies and if so what affect it has on the public interest balancing test. This had not been done in this case.
As to the public interest, a crucial issue was (as is usual with s. 35 cases), when the policy formulation had come to an end. Answer in this case: the date of Royal Assent given to the bill embodying the policy, namely 30 March 2007. In this case, one of the internal reviews was only completed well after this date – but the Tribunal held that the latest relevant date for assessing the public interest was the date when the review ought to have been completed, in accordance with the Code of Practice. This was well before Royal Assent, meaning that the public interest factors applied as if the policy were still in the process of formulation.
In the event, apart from two pieces of information, the Tribunal found that the public interest favoured the maintenance of the exemption. In so doing, it “took the view that the efficacy of the Parliamentary legislative process took precedence in this context… Whilst s. 35 was not aimed directly at protecting the role of Parliament, insofar as Government policy in relation to legislation underpins this particular role of Parliament, they were intertwined”.
A final interesting point is that the Tribunal firmly endorsed the IC’s flexibility to decide that, although information should have been disclosed at the time, it nevertheless ought not to be disclosed due to fresh circumstances that have arisen since the decision of the public authority. In so doing, the Tribunal relied on obiter dicta from the High Court’s decision in Office of Government Commerce v Information Commissioner [2009] 3 W.L.R. 67 (at paragraph 98).
AGGREGATION OF EXCEPTIONS
March 15th, 2011 by James Goudie QCOn 10 March 2011 Advocate General Kokott gave her Opinion in Case C-71/10, OFCOM v Information Commissioner, a reference from the UK Supreme Court. According to the Environmental Information Directive the right of access of individuals to environmental information can be restricted if disclosure would undermine particular interests deserving of protection provided that in the particular case the public interest served by disclosure does not outweigh the public interest served by refusal. The question is whether, when deciding upon disclosure of environmental information, individual adversely affected interests which, when taken individually, would not be sufficient to outweigh the public interest served by disclosure can be cumulated and possibly together justify the confidential treatment of information. The Advocate General answered the question in the affirmative. She said (para 41): “… the breakdown of interests meriting protection into different exceptions does not preclude their cumulation. As convincingly argued by the United Kingdom, these exceptions are not always clearly distinguishable from each other. Indeed, the interests meriting protection sometimes clearly overlap.”
The Advocate General accepted that a cumulation of interests cannot create additional exceptions to the right to information, and said that the main issue is whether additional exceptions are created by a cumulation of recognized adversely affected confidential interests during the balancing exercise. She continued (from para 53): “Cumulation can unquestionably bring about an additional restriction of access to environmental information if several interests together justify a refusal of disclosure even though, when taken in isolation, they would be outweighed by the public interest served by disclosure. It would nevertheless still always be a question of restriction of access based on recognised interests. I agree with the United Kingdom in considering that this additional restriction correctly applies the principle of proportionality. … if the recognised interests militating against disclosure were together to clearly outweigh the public interest served by disclosure, the disadvantages caused by the disclosure of environmental information would no longer be proportionate to the aims pursued. … The Information Commissioner does indeed fear that the balancing of cumulative interests would be difficult to achieve in practice; however, these difficulties lie less in cumulation itself than in the nature of the balancing exercise between the interests served by disclosure and the interests served by the withholding of information. These interests are generally only comparable with difficulty, so that it is also difficult to weigh them against each other. This balancing exercise is made easier, however, if one applies the requirement of a restrictive interpretation of exceptions during the balancing exercise such that, in the event of doubt, the issue is decided in favour of transparency. … Consequently, the answer to the reference for a preliminary ruling should be that where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception under Article 4(2) of the Environmental Information Directive, but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, the directive requires a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure.”
James Goudie QC
LATE RELIANCE: THE SAGA CONTINUES
March 3rd, 2011 by Robin HopkinsWe have posted a number of times on the contentious issue of late reliance, i.e. whether a public authority is entitled to rely as of right on an exemption or exception (under FOIA or the EIR) raised for the first time before the Tribunal. Last month, the Upper Tribunal answered this question with a firm “yes” in its decision on appeals by the Home Office and Defra, available here. That may not be the last word on this issue: Simon Birkett, founder of Clean Air London and Second Respondent to Defra’s appeal, has applied for permission to appeal that decision to the Court of Appeal. The press releases and grounds of appeal are available here.
THE EVOLVING BATTLE AGAINST ILLEGAL FILE-SHARING: SOME DATA PROTECTION OBSERVATIONS
March 3rd, 2011 by Robin HopkinsLate last year, Julian Wilson blogged about the Digital Economy Act 2010, and the judicial review challenge to its compliance with EU law – including data protection law. With those proceedings drawing near, I have written a thought piece for Practical Law on some of the related issues, available here.
ACPO TO BECOME SUBJECT TO FOIA WITHIN MONTHS
March 1st, 2011 by Robin HopkinsEarlier this year, we posted on the Deputy Prime Minister’s announcement that a number of bodies – including the Association of Chief Police Officers – would become subject to FOIA. In response to a question from Green MP Caroline Flint, the Justice Minister Nick Herbert has confirmed that an order would be placed before Parliament in the spring to implement this extension of FOIA to ACPO. It’s not clear if and when the same will be done for any other bodies mentioned in Mr Clegg’s speech, such as UCAS and the Financial Services Ombudsman.
LATEST DECISION NOTICE ON “EMISSIONS”
February 28th, 2011 by Robin HopkinsAt the 11KBW Information Law seminar last week, I mentioned the imminent Tribunal decision in the GM Freeze case, which will consider how the term “emissions” is to be construed for EIR purposes. On a related note, readers may be interested to know that the ICO last week issued a decision notice requiring Ofcom to disclose information about electromagnetic radiation from ethernet power line adaptors, on the grounds that this fell within the definition of “information on emissions” under the EIR. Read the DN here.