INFORMATION LAW « Panopticon Blog

LITIGANTS MAY – WITH THE TRIBUNAL’S LEAVE – PUBLISH PLEADINGS WHILE A CASE IS ONGOING

September 8th, 2010 by Robin Hopkins

Mr Todd has lodged an appeal against a decision notice of the Commissioner involving the BBC. He will be a litigant in person at the Tribunal hearing. He applied to the Tribunal for permission to publish on his blog the pleadings lodged by the Commissioner and the BBC, so as to “recruit advice and assistance from other members of a wide community of on-line democratic activists who may have relevant and informal contributions to make to my case”. In other words, he argued that publication would help him achieve equality of arms.

Neither the Commissioner nor the BBC objected to his doing so in this particular case. The Commissioner, however, contended that litigants had no automatic right to publish pleadings in a ‘live’ case, but could only do so with the leave of the Tribunal on a case-by-case basis. The BBC on the other hand, contended that the Tribunal had no power to authorise such publication under the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

The Tribunal agreed with the Commissioner (see its ruling here), and authorised the publication of the pleadings in this case. It is therefore theoretically open to litigants in person to take this approach – but only with the permission of the Tribunal. Importantly, the Tribunal’s reason for allowing publication in this case appears to have been the lack of objection by the other parties and not Mr Todd’s ‘equality of arms’ argument, which it expressly rejected. It seems then that the views of the respondents will be crucial to any such applications in future.

Tags: First-tier tribunal, Procedure
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UNHELPFUL PRESENTATION OF REDACTED MATERIAL COULD BREACH SS. 1 & 16 FOIA

August 10th, 2010 by Robin Hopkins

The Tribunal’s recent decision in Gradwick v IC and the Cabinet Office (EA/2010/0030) dealt with sections 23 and 24 of FOIA. Its concluding dicta also dealt with some procedural matters with potentially substantive implications, particularly concerning redacted material. Public authorities may find these dicta worth noting, both when preparing to disclose redacted material and when preparing for Tribunal hearings.

In response to a FOIA request, the Cabinet Office had decided to disclose some extracts from its Manual of Protective Security but to withhold others. Due in part to administrative complications, it did so by compiling a document consisting solely of the former rather than blanking out parts of the original manual. Relying on FOIA’s reference point being information rather than documents, the Cabinet Office sought to justify this approach in the face of criticism from the Tribunal. The Tribunal however, remarked that “it is at least arguable that a document which sets out the passages that contain the information to be disclosed, but which has the effect of obscuring the nature and extent of the information which has been withheld, does not inform the party making the request whether or not it holds information of the description specified in the request, for which exemption is claimed”.

This approach to the presentation of information could, it observed (without deciding the issue), constitute a breach of section 1 (duty to provide information) and/or section 16 (duty to assist) of FOIA.

The Tribunal indicated that it prefers the following approach:

“Within the practice established by the Tribunal and its users to date, a document characterised as having been redacted has come to mean one in which the extent of the omitted material is indicated by blank spaces and in which, to the extent possible, headings or other indications are retained or inserted to give a fair indication, to both panel members and those presenting submissions, of the broad nature of the information that has been withheld. Annotating the resulting document to indicate the exemption relied on to justify each omission is also a valuable assistance in cases where different exemptions apply to different sections of the document or information.”

Tags: First-tier tribunal, FOIA, public authorities
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LANDMARK IPT DECISION ON LOCAL AUTHORITY’S USE OF RIPA

August 2nd, 2010 by Robin Hopkins

The Investigatory Powers Tribunal today issued its decision in the first substantive public case on the use of surveillance powers under the Regulation of Investigatory Powers Act 2000.

Poole Borough Council suspected that Jenny Paton and her family may have lied about living in the catchment area of a sought-after primary school in Dorset. It therefore monitored their activity for around 3 weeks in 2008. This included covertly monitoring the movements of family members and their car, as well as examining the contents of their rubbish.

The IPT found that:

(1) investigating a potentially fraudulent school application was not a proper purpose in the sense required by RIPA;
(2) in these circumstances, the Council’s actions were in any event disproportionate, in that they were not necessary to achieve that aim, and
(3) the Council’s actions had breached the family’s rights under Article 8 of the ECHR.

Poole Borough Council has accepted the ruling and apologised to Ms Paton and her family.

Tags: article 8, privacy, RIPA, surveillance
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LATEST TRIBUNAL DECISION ON THE ‘PERSONAL DATA’ AND ‘COST OF COMPLIANCE’ EXEMPTIONS

June 1st, 2010 by Robin Hopkins

The Tribunal’s first decision in the case of Alasdair Roberts v IC and Department for Business, Innovation & Skills (EA/2009/0035) established the controversial principle that the s. 36 exemption only applies where the opinion of the ‘qualified person’ was reached by the time the request was responded to: see Anya Proops’ post on that decision. DBIS was therefore not entitled to rely on s. 36 in refusing Mr Roberts’ request. Its refusal was, however, upheld in the Tribunal’s second decision in this case, which provides the latest word on the s. 40 ‘personal data’ exemption.

In particular, this case concerned the first data protection principle (processing must be fair and lawful and meet a Schedule 2 condition) and paragraph 6(1) of Schedule 2 to the DPA 1998. That condition is that “the processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject”.

Two notable points about the application of this principle emerge.

First – on whether the processing would be fair – senior civil servants (Grade 5 or above) do not have a reasonable expectation of anonymity in respect of any document, no matter how sensitive. More junior civil servants might have reasonable expectations: this will be less cogent where the job is “public-facing” (such as a Job Centre manager), and more cogent where the information is controversial (such as information about animal testing).

Secondly – on legitimate interests of ‘parties to whom the data are disclosed’ – the Tribunal found that the requester’s strong individual interest (for research purposes) was not sufficient to override the fact that this information was of very little interest to the world at large (to whom disclosure is, in the eyes of FOIA, to be made).

This decision also offers further guidance on what can be included within the ‘cost of compliance’ for s. 12 purposes. The Tribunal accepted the established principle that costs of redacting names are to be excluded, but qualified this as follows: “that may be appropriate where the task is simply to locate individuals’ names and redact them… but where, as here, the process requires a judgment to be made, document by document, balancing the various criteria we have identified, then we believe that much, if not all, of the process should be regarded as retrieving from each document the information which requires to be disclosed and therefore properly included in the cost estimate”.

Tags: Costs of compliance, section 40 FOIA
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PLANNING DECISIONS & HISTORIC BUILDINGS: PUBLIC SCRUTINY TRUMPS COMMERCIAL CONFIDENTIALITY

May 28th, 2010 by Robin Hopkins

Local planning authorities will wish to take careful note of the recent Tribunal decision in Bristol City Council v ICO and Portland and Brunswick Squares Association (EA/2010/0012), which will please residents’ associations, conservation groups and others wishing to scrutinise planning decisions about historic buildings.

PPG 15 (a Planning Policy Guidance document) requires that, where a building is listed or makes a positive contribution to a conservation area, it should only be demolished if there is “clear and convincing evidence that all reasonable efforts have been made to sustain existing uses or find viable new uses and these efforts have failed”. Bristol CC granted permission to demolish a listed building in its ownership, relying for PPG 15 purposes on the developer’s viability reports which apparently showed alternative uses of the building to be commercially unviable. It subsequently refused to disclose those reports, relying on the exemption at regulation 12(5)(e) of the EIR 2004, which applies to the extent that disclosure “would adversely affect … the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest”.

The requesters argued that a reasonable person would not regard these reports as confidential because the planning process is one that assumes and requires public involvement. The Tribunal disagreed, and found that regulation 12(5)(e) was engaged.

It went on to find, however, that the public interest favoured disclosure, given the decisiveness of these reports in a matter which had aroused substantial local controversy. The Tribunal considered it proper to take into account the “general mismatch between the resources of developers and residents’ groups” and noted that “so far as PPG 15 viability reports are concerned, it seems to us that developers will not be able to refuse to supply them if they want to obtain the relevant consent but that, given their hypothetical nature, it may be possible for them to construct such reports in a way that does not reveal sensitive commercial information specific to themselves”.

The Tribunal stressed that it was not setting down a general precedent concerning planning decisions, and that absent PPG 15 (or, presumably, its successor guidance PPS 5) or council ownership of the building in question, its decision might have been different. Where those two factors are present however, public accountability trumps commercial confidentiality.

Tags: confidentiality, environmental information, public interest
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UK interception regime upheld in Strasbourg

May 18th, 2010 by Ben Hooper

The European Court of Human Rights handed down a significant judgment today in Kennedy v. UK (application no. 26839/05).

A warrant under s. 8(1) of the Regulation of Investigatory Powers Act 2000 permits the interception of the communications of a particular person (or particular set of premises). Mr Kennedy sought to challenge the Art. 8 compatibility of the s. 8(1) warrant regime, and in particular sought to criticise its foreseeability. The Court unanimously rejected his challenge and, in a relatively detailed judgment, upheld the compatibility of the domestic law.

The case is also interesting for the Court’s analysis of Mr Kennedy’s Art. 6 complaint. Mr Kennedy had brought domestic proceedings in the Investigatory Powers Tribunal, which had resulted in two public decisions on legal issues, together with a final ruling that no determination had been made in his favour (i.e. that there had either been no interception, or that any interception that had taken place had been lawful). In Strasbourg, Mr Kennedy complained that the restrictive procedures of the Tribunal had breached Art. 6. In its judgment, the Court avoided deciding whether Art. 6 applied to such proceedings, but went on to confirm that if Art. 6 did apply then the Tribunal’s procedures satisfied its requirements.

Tags: article 6, article 8, interception, surveillance
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SAFETY RISK JUSTIFIES WITHHOLDING OF ANIMAL EXPERIMENT INFORMATION

April 21st, 2010 by Robin Hopkins

The ‘health and safety’ exemption under s. 38 FOIA has received relatively little attention at Tribunal level. It was recently relied upon successfully in People for the Ethical Treatment of Animals Europe (PETA) v IC & Oxford University (EA/2009/0076).

Experiments performed on a macaque by an Oxford University Professor had been featured in a BBC documentary in November 2006. The appellant pressure group sought extracts from the relevant project licence concerning, for example, the work plan and purposes behind those experiments. The Tribunal applied the well-established ‘prejudice’ principles from Hogan and Oxford City Council v IC (EA2005/0026 and EA2005/0030), ‘endanger’ (the term used in s. 38) being synonymous with ‘prejudice’. It found that s. 38 was engaged, given the indiscriminate nature of the violence tending to accompany the publication of information about animal experiments at Oxford.

In terms of the public interest test, notable points from the decision include:

a) PETA argued that the information would assist its decisions on applications for judicial review, but, based on Secretary of State for the Home Department v BUAV [2008] EWCA Civ 417, the Tribunal observed that there was limited scope for judicial second-guessing of scientists’ opinions.

b) The Tribunal accepted that limited external scrutiny was available, but was persuaded of the robustness of the internal scrutiny and oversight mechanisms applied here.

c) Oxford put forward a collateral public interest argument, namely that safety risks would deter future research, thereby impeding the advancement of scientific knowledge and human health. PETA argued that this was too remote from the health and safety risks for which s. 38 catered, but the Tribunal rejected this ‘remoteness’ objection (though it found this public interest factor to be inapplicable on these facts).

Given the frequency with which such points arise in appeals by pressure groups, these observations from the PETA case may come to have wider application.

Tags: public interest, section 38 FOIA
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LATE RELIANCE ON EXEMPTIONS ONLY TO BE ALLOWED IN “EXCEPTIONAL” CIRCUMSTANCES

April 6th, 2010 by Robin Hopkins

The Tribunal’s recent decision in Crown Prosecution Service v IC EA/2009/0077 concerned a request for information about the CPS’ deliberations on s. 58 of the Children Act 2004, which restricted the availability of the “reasonable punishment” defence to what would otherwise be a criminal assault by an adult on a child. The importance of this decision lies not so much in the fate of the requested information (in short: some was exempt, some was to be disclosed), but in the Tribunal’s approach to late reliance on FOIA exemptions.

The CPS initially relied on s. 35(1)(a) (formulation and development of government policy). Then, in its appeal to the Tribunal, it invoked s. 35(1)(b) (ministerial communications) and s. 42 (legal professional privilege). Finally, the CPS raised s. 40 (2) (personal data) for the first time during the Tribunal proceedings. The Tribunal allowed late reliance on ss. 40(2) and 42, but not s. 35(1)(b).

In so doing, it applied the principles set out in the Tribunal’s decision in Home Office & Ministry of Justice v IC EA/2008/0062. The crux of that decision was that late reliance should only be allowed in “exceptional” circumstances. The Home Office approach was not disapproved in the appeal to the High Court from that Tribunal decision ([2009] EWHC 1611 (Admin)) – but nor was it formally approved. The CPS decision, which was complete with detailed reasoning in support of Home Office, seems to have resolved lingering questions about the Tribunal’s approach to late reliance.

The Tribunal in CPS also considered whether the IC is under a duty to consider exemptions that are not raised by the public authority. Here it followed the approach from Bowbrick v. Nottingham City Council EA/2005/0006: in “exceptional” cases, the IC is “entitled” to look for an appropriate exemption. This did not extend to s. 42 in Bowbrick, nor did it in CPS.

Tags: FOIA, Information Tribunal
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S. 41 FOIA: BREACH OF CONFIDENCE MUST BE “PROBABLE” RATHER THAN “ARGUABLE”

January 18th, 2010 by Robin Hopkins

The Information Tribunal’s judgment in Higher Education Funding Council for England v Information Commissioner (EA/2009/0036) is its most definitive decision to date on the exemption for confidential information provided by s. 41 FOIA. Most decisions about s. 41 will – for now – need to take into account the issues addressed in this judgment.

The Council, a statutory body for the administration of higher education funding, relied on this exemption in refusing to disclose to a Guardian journalist information relating to the state of the buildings at Higher Education Institutions that contributed to the Council’s database. The Commissioner decided that s. 41 was not engaged. The Tribunal agreed, addressing a number of important issues along the way.

First, and most crucially: s. 41 is triggered by an “actionable” breach of confidence. Does “actionable” in this context denote a claim that is likely to succeed on the balance of probabilities (as the Commissioner contended, supported by Guardian News as an additional party) or merely a claim that is properly arguable (as the Council argued)? The Tribunal regarded this as a novel point on which the statutory wording was ambiguous. Accordingly, it turned to Hansard, which provided an unequivocal resolution: “actionable” for s. 41 purposes means (in the words of the bill’s sponsor, Lord Falconer) “being able to go to court and win”. For public authorities wishing to rely on s. 41, a merely arguable potential action will not suffice.

Next, the Tribunal considered the long-established definition of actionable breach of confidence from Coco v AN Clark (Engineers) Ltd [1968] FSR 415, the first limb of which requires that the information has the “necessary quality of confidence”. Guardian News conceded that the information was neither trivial nor widely accessible, but argued that limb 1 of Coco imposed two further requirements, namely: the party claiming confidentiality must demonstrate some value it would derive from non-disclosure of the disputed information, and the information must be confidential from the objective standpoint of the reasonable person. While it found that both of these conditions were met in this case, the Tribunal found it unnecessary to read these supplementary questions into the Coco test.

Third, the Tribunal considered the principle (under limb 3 of Coco) that a breach of confidence is only actionable if the confider suffers detriment thereby. Caselaw shows that, where private (as opposed to commercial) information is at stake, courts have not insisted on this detriment criterion. Nonetheless, the Tribunal declined to deviate from Coco: for s. 41 to be engaged, the public authority must make out detriment. The standard of detriment is not onerous: reputational damage suffices. In the circumstances, however, it was only the higher education institutions who were capable of suffering detriment, and not the Council in its own right, because the latter was merely the servant of the former.

Finally, the Tribunal, applying the proportionality test from HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776, held that a public interest defence would defeat a claim for breach of confidence in these circumstances. Notably, the Tribunal held that even if disclosure were to result in uncooperative behaviour from Higher Education Institutions, little weight should be attached to any such detriment based on obstructive behaviour “which would fall short of the standard of stewardship which the public is entitled to expect”.

Tags: confidentiality, FOIA
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