The Administrative Court’s (as yet unreported) judgment in R (on the application of N) v a Local Authority in December 2010 saw the quashing of a decision to withdraw a licence to be in contact with children. The case concerned the familiar public law principles of judicial review and human rights, but from an information law perspective, the point of interests is this: in reaching its decision to withdraw the individual’s licence, the local authority compiled information on that individual, including the allegations made against him (namely, that he was a paedophile with a history of sexual offences) as well as its meetings with the individual. Ockleton J not only overturned the local authority’s decision, but also directed it to keep a copy of the judgment with its records relating to the matter, so that its records on this individual were full and accurate. Otherwise, he ruled, the local authority’s file on this individual was potentially misleading to anyone subsequently accessing it.
LOCAL AUTHORITY ORDERED TO RETAIN COURT JUDGMENT IN INDIVIDUAL’S FILE
January 5th, 2011 by Robin HopkinsCREATION VS MERE SWEAT: FOOTBALL FIXTURE LISTS AS LEGALLY PROTECTED DATABASES?
January 5th, 2011 by Robin HopkinsIn Football Dataco & Others v Yahoo! UK Ltd & Others, the Court of Appeal has referred to the ECJ questions on the interpretation of Directive 96/9 on the Legal Protection of Databases. Its principle question was: what is meant by “databases which, by reason of the selection or arrangement of their contents constitute the author’s own intellectual creation”?
The databases in question comprised football fixture lists in the English and Scottish leagues. The defendant used these without paying the claimant (an organiser of football fixtures). The claimant contended that, by arrangement of its contents, the fixture list became its “own intellectual creation”, thereby attracting the Directive’s protection. The defendant’s stance was that these lists did not attract such protection, because they were merely the fruits of “sweat of the brow” – in other words, compilation, but not creation.
The Court of Appeal observed that the ECJ’s answers to its questions had wide implications for the legal protection not only of sports fixture lists, but possibly also of TV listings, which required comparable energy and skill to compile.
“MANIFESTLY UNREASONABLE” REQUESTS UNDER THE EIR: RELEVANCE OF COST OF COMPLIANCE AND DUTY TO ADVISE AND ASSIST
January 3rd, 2011 by Robin HopkinsLittle v ICO and Welsh Assembly Government (EA/2010/0072) is the latest application of the principles in DBERR v IC and Platform (EA/2008/0096) concerning “manifestly unreasonable” requests under regulation 12(4)(b) EIR. In particular, it deals with a public authority’s reliance on that exemption based on the excessive time which would be required to comply with the request.
The Tribunal confirmed that manifest unreasonableness – whilst not a condemnatory term – did imply a higher threshold than mere unreasonableness. A certain obviousness was required. Beyond that, no more precise definition could be given, and terms such as “self-evidently” were not applicable. The cost of compliance is relevant, but only as one factor among many. A request may be manifestly unreasonable if the cost of compliance is disproportionate the importance of the issue, or if compliance would divert resources so as significantly to disrupt the public authority’s normal activities. These, however, are only examples, and each case must be decided on its own facts. On the facts of this case (which concerned information on the disposal of land owned by Forestry Commission Wales for the purposes of wind farm development) the requests were manifestly unreasonable.
Two points of general interest emerge.
First, the “cost of compliance” provision under section 12 FOIA may not be used as a yardstick for determining manifest unreasonableness under regulation 12(4) EIR. The provisions are entirely separate, and one offers no guidance on the other.
The second is that compliance with the duty to advise and assist under regulation 9 EIR is a precondition for reliance on regulation 12(4)(c) (the exemption applicable where a request is too general) – but not for reliance on manifest unreasonableness under regulation 12(4)(b). This does not mean, however, that the duty to advise and assist is irrelevant to regulation 12(4)(b). The Tribunal was clear that “a public authority should expect, in the appropriate case, to have to engage with the request, and the requester, to consider whether a more manageable and reasonable formulation of the request can be achieved, before refusing a request for being manifestly unreasonable”.
The Tribunal also observed that the preparation of a 20-page list of files which might contain the requested information was not required under regulation 9 in this case – but once such a list has been prepared, the failure to provide the requester with a copy might cast a public authority’s efforts under regulation 9 in an unfavourable light.
Infringement by Use on Website
December 16th, 2010 by James Goudie QCMGN publishes the Daily Mirror and other newspapers. Mr Grisbrook is a freelance photographer. Between 1981 and 1997 he supplied MGN with a large number of photographs for publication by MGN in their daily newspapers and storage by them. He retained the copyright. He was paid for each publication. In 1997 he terminated MGN’s licence to use the photographs. MGN later created three websites that allowed the public to view and buy part or whole of back copies of their newspapers. Some of these include Mr Grisbrook’s photographs. He claimed that this infringed his copyright. In MGN v Grisbrook [2010] EWCA Civ 1399 the Court of Appeal agreed. The dispute related to the commercial exploitation of the MGN database by means of the three websites. It was not suggested that such exploitation was within the contemplation of the parties at the various times between 1981 and 1997 when the relevant photographs were submitted by Mr Grisbrook to MGN. Nor was it suggested that any second publication of one of Mr Grisbrook’s photographs would not generate a liability to Mr Grisbrook for a further fee. What was suggested was that the website is an alternative means of delivery of the original newspaper: because there was no limit on the numbers which might have been published originally the operation of the website should be regarded as only further delivery of the original, licensed, paper. The Court of Appeal agreed that the operation of the website could be regarded as further delivery of the original, but not that it could only be so regarded. A website operates over a global area, its coverage is greatly in excess of anything MGN could have reached with hard copy newspapers. It enables a member of the public to read it before deciding whether he wants a hard copy and the production of hard copies by the public far in excess of anything MGN could have produced. The extent of the market and the costs incurred in reaching it are quite different to those of the hard copy newspapers of the past. The suggestion that an intention might be imputed to Mr Grisbrook and MGN from their conduct in relation to Mr Grisbrook’s photographs in the period 1981 to 1997 that MGN should be entitled without further charge to exploit the copyright of Mr Grisbrook in his photographs by inclusion on their websites was unacceptable. Newspapers are essentially ephemeral and, save for the enthusiastic collector, retain no long lasting status: the parties will have intended that they would be treated as daily papers are generally treated, that is to say, read and replaced with the following day’s edition. To incorporate the pictures into the website was to provide a permanent and marketable record easily available world-wide which could well reduce the value of the further use by Mr Grisbrook of the photographs over which it was common ground he possessed the copyright. This is why this was not just a question of degree but of kind. Copyright in the compilation does not affect the rights of the owner of copyright in its parts unless he licenses its further publication. The existence of such overlapping copyrights demonstrates the need for the compiler to obtain sufficient licences from his contributors.
James Goudie QC
WISE MEN, ANGELS AND SHEPHERDS
December 8th, 2010 by Rachel KammThe Information Commissioner has produced a Good Practice Note on the taking of photographs in schools. The ICO press notice gives a seasonal example: “Having a child perform at a school play or a festive concert is a very proud moment for parents and is understandably a memory that many want to capture on camera. It is disappointing to hear that the myth that such photos are forbidden by the Data Protection Act still prevails in some schools. A common sense approach is needed – clearly, photographs simply taken for a family album are exempt from data protection laws. Armed with our guidance, parents should feel free to snap away this Christmas and stand ready to challenge any schools or councils that say ‘Bah, Humbug’ to a bit of festive fun.” The guidance states that the Data Protection Act is unlikely to apply in most situations where photographs are taken by parents in schools, although it does apply when photographs of children are taken for official use by a school or college (such as for issuing identification passes). The ICO advises that in the other small number of instances where the Data Protection Act 1998 does apply, it will usually be sufficient for the photographer to obtain permission from the parent or individual to take a photograph. The guidance is available here: http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/taking_photos.pdf.
This post is also available on 11KBW’s education law blog: http://www.education11kbw.com/.
PARTIES MAY APPEAL AGAINST DECISION NOTICES IN THEIR FAVOUR
December 2nd, 2010 by Robin HopkinsShepard v IC and West Sussex County Council (GIA/1681/2010) involved the Commissioner upholding the appellant’s complaint against the local authority, and issuing a decision notice in his favour. That notice required the authority to search for specified information and to provide it to the Claimant if found. The authority informed the appellant that its search had been fruitless. Apparently therefore, it had complied with the decision notice, but the appellant received no information.
At first instance, his appeal failed, partly on the grounds of the well-established principle that a successful party should not be permitted to bring an appeal. The Upper Tribunal disagreed, and granted permission to appeal, observing that the aforementioned principle “surely relates to judicial decisions by courts and tribunals; it does not necessarily apply to decisions by administrative first-instance decision-makers or independent office-holders”.
Nor was the wording of FOIA itself a barrier to such appeals: section 57(1) expressly confers a right of appeal on both parties, and not simply “the losing party”. Furthermore, both the steps prescribed in a decision notice and the timing of such steps are matters of discretion for the Commissioner. Unlike the enforcement of a decision notice, such questions of discretion are within the Tribunal’s jurisdiction.
It is not clear, however, whether a challenge to a first-instance Tribunal’s refusal to entertain an appeal lies by way of an appeal to the Upper Tribunal or by way of judicial review. A test case (combined references of CH/1758/2009 and JR/2204/2009) will determine this question shortly. In the present case, the Upper Tribunal therefore granted permission to apply for judicial review as a precaution.
TRIBUNAL’S STRIKE-OUT OF ‘ACADEMIC’ APPEALS
December 2nd, 2010 by Robin HopkinsIn Edwards v IC and the Ministry of Defence (EA/2010/0056), the Tribunal has exercised its power to strike out a party’s case under Tribunal Procedure (First-Tier Tribunal) (GRC) Rules 2009. This was done partly on a lack of reasonable prospects of success, and partly on jurisdictional grounds: some of the appellant’s grounds of complaint invited the Tribunal to “monitor or influence” the way in which the Commissioner had carried out his statutory duties, or the way in which the public authority had done so. The Tribunal has no jurisdiction over such matters.
Perhaps more interestingly, this was a case where the appeal was in effect academic, as the requested material had already been given to the appellant. The grounds on which a Tribunal may strike out an appeal are contained in rule 8(3) of the 2009 Rules: lack of reasonable prospect of success, non-compliance with an order or failure to co-operate with the Tribunal “to such an extent that the Tribunal cannot deal with the proceedings fairly and justly”.
At first glance, it is not obvious how any of those three exhaustive categories accommodate appeals which have become academic due to events post-dating the handling of the relevant request. The Tribunal in Edwards has provided its answer. The key provision is rule 8(3)(b), which concerns the fair and just dealing with proceedings. By rule 2(2) of the 2009 Rules, this includes considerations of proportionality, costs and resources. Rule 5 empowers the Tribunal to regulate its own procedure. In particular, rule 5(2) allows it to give a direction in relation to the conduct or disposal of proceedings at any time.
The combination of rules 2 and 5 can therefore suffice to engage rule 8(3)(b) and support a strike-out even where questions of jurisdiction or lack of reasonable prospects of success are not in play.
BACKDOOR ATTEMPT TO OBTAIN IRAQ WAR CABINET MINUTES FAILS
December 2nd, 2010 by Robin HopkinsThe minutes of the Cabinet meetings at which it was decided to go to war in Iraq have resurfaced for consideration by the Tribunal. First time round, the Tribunal agreed with the Commissioner that the minutes should be released, but the final word went to Jack Straw, by means of a ministerial veto – which was not subject to a judicial review challenge – issued under section 53 FOIA.
The requester in that case subsequently sought a backdoor route to the minutes, by requesting them under FOIA from the ICO itself. He also sought “background papers which show the processes of thought behind the Information Commissioner’s conclusion that the Cabinet minutes in question should be disclosed”. The ICO did not hold the minutes themselves, but it did hold some handwritten notes made by the then Commissioner, Richard Thomas, and by an ICO caseworker when visiting the Cabinet Office to inspect the minutes. It also held a confidential annex to the Decision Notice, which fell within the veto. All of these he refused to disclose.
The usual FOIA complaints and appeals process ensued, with the Commissioner issuing a decision notice in respect of his own refusal, and then defending that notice before the Tribunal in Lamb v IC (EA/2009/0108).
The basis of the refusal was section 44 FOIA, which provides that information is exempt if its disclosure is “prohibited by or under any enactment”. The Commissioner relied for the latter on section 59 of the DPA, which says that the Commissioner may not disclose information he obtained under the auspices of the Act “unless the disclosure is made with lawful authority”, which arises where “having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary in the public interest”.
As the Tribunal accepted, this is a much higher threshold than the usual public interest test under FOIA: under section 59, there is effectively a presumption against disclosure.
The Tribunal was satisfied that this information was “obtained from” the Cabinet Office, notwithstanding the Appellant’s challenge on that point.
It also agreed with the Commissioner’s application of section 59. Much of the Appellant’s argument turned on the importance of the material he sought. This, said the Tribunal, overlooked the point that the Commissioner had already decided in the Appellant’s favour concerning the Cabinet minutes which he sought. The Tribunal also commented that:
“It is no part of the freedom of information regime to provide a mechanism by which a party who prosecuted a successful complaint to the Information Commissioner in the past may have his or her winning margin reassessed in the light of events subsequent to the date of the original victory”.
The Tribunal did not comment on whether the mere existence of the veto gave rise to the engagement or effectiveness of section 59. Nor did it speculate as to the circumstances in which reliance on section 59 could be defeated – although the wording of that section clearly envisaged this prospect.