Quite like a whale

February 24th, 2015 by Peter Lockley

As my colleague Robin Hopkins has warned, the decision of the Upper Tribunal in Fish Legal looks like a pretty big beast: sixty pages on whether water companies are public authorities for the purposes of the Environmental Information Regulations, applying the CJEU’s lengthy ruling on the points of principle (for which, see this post by Chris Knight).

(If you just need the quick answer: yes they are, by virtue of having ‘special powers’, but not by virtue of being under the control of a public body. For the detail, read on.)

In fact, while it could never be classed as a minnow, on closer inspection Fish Legal is not the monster it first seems (see Part 1 of the judgment here and Part 2 here). Fifteen of those sixty pages are appendices. More importantly, the decision poses, but declines to answer, some wider questions. Although Mr Justice Charles was sympathetic to the Information Commissioner’s request for guidance on how to identify a public authority, he stopped short of laying down ‘broad general principles’ on the question (paras.95-97). He gave shorter shrift to the water companies’ request that he list all of their powers which fell within the definition of ‘special powers’– a request made, apparently, with a view to lobbying Parliament to rid the companies of those powers, and so save them from the burden of EIR (para.98).

And one would hardly have expected him to address the question with the widest ramifications: if water companies are public authorities by virtue of their “special powers”, what of the various other privatised industries? It is, of course, a very fact specific analysis. Anxious electricity chiefs, rail bosses, and telecoms honchos will just have to read the judgment and consider how the ‘special powers’ and ‘control’ tests would apply to their own particular circumstances (see para. 110).

 

Background

The UT had two issues before it: (i) whether the Information Commissioner had jurisdiction to decide whether a body was a public authority for the purposes of the EIR or FOIA (as he had purported to do), and therefore whether the UT itself had jurisdiction to hear the case, and (ii) whether privatised water companies in England and Wales are public authorities for the purposes of EIR, applying the principles set down by the CJEU following a referral from the UT (blog post here).

By the time of this, the second outing before the UT, the cast list had expanded significantly, bringing in several 11KBW counsel to join Anya Proops, who acted for the Information Commissioner before the CJEU. The Secretary of State was joined as a party and was represented by Julian Milford. The parties in two related cases, Cross v IC and the Cabinet Office and Bruton v IC and Duchy of Cornwall, were also invited to make submissions on the nature of the tests. Karen Steyn QC and Joseph Barrett appeared for Mr Bruton; Amy Rogers appeared for the Duchy. (Those cases will now go forward to be decided applying the Fish Legal principles.)

 

The jurisdiction issue

The Secretary of State argued that under s.57 FOIA, the First-Tier Tribunal only has jurisdiction over a decision notice issued by the Commissioner under s.50(3)(b) FOIA, and that the Commissioner had no jurisdiction to serve a decision notice on the issue of whether a body is a public authority. Section 50 is based on the premise that a request has been made to a public authority; these elements are anterior to the Commissioner’s jurisdiction and he has no authority to decide them within the framework of FOIA.

The UT rejected these arguments. It took the view that jurisdictional provisions are routinely based on certain assumed conditions, but this does not deprive the body in question of the jurisdiction to decide whether those conditions have been met. So the UT’s jurisdiction to hear an appeal on any point of law arising from a decision made by the FTT assumes that a decision has been properly made by a properly-constituted tribunal, but it does not mean that the UT cannot rule on whether those conditions are met in a given appeal (para 31).

The UT applied this reasoning to both a positive decision by the Commissioner that a body is a public authority, and a negative decision that it is not, even though the latter is not a decision notice under s.50(3) FOIA. To hold otherwise would mean that while a body could appeal against a positive decision, a requester would face the more expensive route of judicial review of a negative decision (para.37). Furthermore, the Commissioner would have no power under the similarly structured s.51 FOIA to require the information he needed to reach an informed decision that a body was not a public authority (para. 41).

After scrutinising the decision of the House of Lords in BBC v Sugar [2009] 1 WLR 430, the UT decided that there was nothing in the case that disturbed its conclusions on the point (paras.43-54).

The Commissioner therefore has jurisdiction to decide the issue, the FTT to hear appeals against his decisions and the UT to hear appeals against the decisions of the FTT.

The public authority issue

Two of the limbs of the definition of ‘public authority’ under the EIR were in issue. A finding that the companies fell within either would suffice to make them public authorities. (A little care is needed with the numbers of the provisions in question: Article 2(2)(b) of the Environmental Information Directive is transposed as Reg. 2(2)(c) of the EIR, and Article 2(2)(c) of the Directive as Reg. 2(2)(d) of the EIR.)

 

Persons performing public administrative functions – the ‘special powers’ test

The CJEU expanded on Art. 2(2)(b) of the Directive by explaining that persons ‘performing public administrative functions’ are

52 […] entities, be they legal persons governed by public law or by private law, which are entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.

Only the parts underlined were in dispute in the case of the water companies, which clearly meet the rest of the test.

The UT declined to draw any conclusion from the fact that the CJEU had not seen fit to apply the principles to the facts of this case (paras. 99-100). It also rejected a suggestion that it should ask itself whether the companies’ powers were in the nature of State powers (as the Advocate General had suggested). That was because the definition of ‘State powers’ was unclear and ever-changing, and also because the CJEU had not adopted that test. In the end, however, the UT did adopt the State powers test ‘as a check’ – leaving the status of the test somewhat unclear (paras.113-117).

The main analysis focussed on the following powers of water companies:

Compulsory Purchase (under s.155 of the Water Industry Act 1991, “WIA”): this looks like a quintessential government power unavailable to ordinary citizens, but in fact the water companies enjoy the power at one remove: before exercising it they require authorisation by the Secretary of State, which they can apply for via a process set out in Schedule 11 to the WIA. Nonetheless, the provisions conferred a real, practical advantage on the water companies. Firstly, the application process afforded them privileged access to those advising the Secretary of State on whether to authorise a compulsory purchase. Secondly, it conferred significant commercial leverage on the companies in any negotiation to purchase land, even if they rarely resorted to it in practice (para 107).

Power to make byelaws (s.157 WIA): such byelaws  require confirmation from the Secretary of State, but as with compulsory purchase, the power still confers an advantage on the companies. The section confers power beyond that of any private landowner, since byelaws under s.157 can be backed by criminal sanctions, unlike a landowner’s licence. ‘Special powers’ extends to ‘special powers of enforcement’ (para. 110).

Power to lay pipes (s.159 WIA): this power was the subject of a detailed comparison with the powers ordinarily available under private law. The companies argued that the same powers could be acquired through a license or easement. While accepting that this was potentially so, the UT emphasised that private law typically requires consent of the parties to achieve such a result (through the law of contract or property). By contrast, the WIA gives the water companies effective power to compel this result (para.121).

Power to enter land (s.168 WIA): although there are powers within private law allowing entry to another’s land (eg self-help to abate a nuisance at common law), they are narrowly circumscribed (eg they require possession of neighbouring land). The water companies’ powers are both wider and deeper: they apply against any landowner in the company’s area of license, and they extend to surveying and even boring on the land (para.125).

Hosepipe bans (ss.76-76C WIA): these powers are unlike anything available at private law, and moreover are backed by criminal sanctions.

Since it was content that the companies enjoyed a cluster of special powers, the UT formally left open the question of whether one would have been enough (see para. 105). However its comment in conclusion that the powers mentioned were ‘sufficient, collectively in themselves and as examples of powers of the same type’ to meet the test (para. 130) suggests that some pattern of powers will probably be necessary before a body is considered a public authority.

 

Persons under the control of public authorities

The CJEU’s elaboration of Article 2(2)(c) set out the test for ‘control’ in the following terms:

68 […] this third, residual, category of public authorities covers any entity which does not determine in a genuinely autonomous manner the way in which it performs the functions in the environmental field which are vested in it, since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on the entity’s action in that field.

The test applies to the manner in which functions are performed, not the functions themselves: a body is not under control of the Government merely because its powers derive from statute (para. 133). There are two elements to the test: the body must (i) operate in fact in a non-autonomous manner, and (ii) do so because a public authority is in a position to control it (para. 134). In other words, although the public authority need not actually be exercising its powers of control, the existence of the powers must have a real constraining effect on the body in question (para.135). Furthermore, the test required the UT to look at the companies’ overall manner of performing their environmental services: it would not be enough to find control in ‘one or two marginal aspects of their business’ (para. 136).

As for prior authorities, Smartsource was simply no longer relevant: the task of the UT was to consider the issue afresh in the light of the CJEU’s ruling (para.137).

The UT was at pains to point out that ‘no legitimate business has complete freedom of action’: all operate in a framework of legal and commercial constraints. Something more is needed before one can say that they have lost their autonomy (paras 142-144).

The two counsel for the requesting parties sought to supply that ‘something more’ by advancing ‘macro’ and ‘micro’ examples of actual state intervention in the water industry: recommendations by the Secretary of State made on reviewing a Draft Water Resources Management Plan, and an enforcement notice issued by OFWAT in respect of the risk of sewer flooding in the Penketh area. These were dismissed as no more than ‘increased intensity of oversight at particular times and in respect of particular activities’ (para.148).

A list of potential interventions was also provided – an analysis of the Secretary of State’s powers under the WIA. Although these clearly put the Secretary of State ‘in a position to exert decisive influence’ over the water companies’ actions, they too were rejected as not demonstrating control. The UT’s first two reasons are a little puzzling. The first was that the powers are (to some extent) a substitute for the forces of competition, since water companies enjoy local monopolies (para. 151). This rather begs the question: the grant of a monopoly confers great power on a private entity, which needs to be limited in the public interest. Just because state control is a substitute for market forces, this does not stop it from being a form of control. The second reason was that ‘the risk of enforcement is at most only a marginal consideration for a reputable company’ (para.152). Really? Why then did OFWAT need to issue that enforcement notice for the Penketh sewers?

However, the UT went on to find that whatever the potential for intervention, the more basic aspect of the control test was not satisfied. Merely listing all the possible interventions distorted the picture of how the companies operate in fact, and only addressed the second element of the test. The UT’s overall conclusion on the control test was that ‘despite the extent to which there is scope to influence the companies’ decision-making on the way it delivers its services, the evidence does not show that that influence is actually exerted to such an extent that overall the companies lack genuine autonomy (para.153).

You might not have predicted this result if you had read the CJEU’s heavy hint on the question of control – see [71] of its judgment

The weight that the UT afforded to the companies’ status as ordinary private companies is one of the surprises of the judgment. And it will be one of the few points of comfort for other privatised utilities. Not many can be as heavily regulated as the water industry; perhaps they too can avoid at least this limb of the definition.

 

POSTSCRIPT: if you’ve come here from Robin’s post, you may be wondering what Lewis Carroll has to do with all this. Loyal reader (which you must be if you’ve got this far), your guess is as good as mine. Why is the section on the State powers test (paras. 113-117) headed ‘Hunting of the Snark’? Answers on an e-postcard please.

 

 Peter Lockley

 

 

 

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Leviathan

February 23rd, 2015 by Robin Hopkins

Hot off the press: the Upper Tribunal has given its judgment in Fish Legal.

Applying the principles from the CJEU’s judgment of December 2013, it has held that the respondent water companies are public authorities for the purposes of the Environmental Information Regulations 2004, by virtue of their “special powers”.

The issues and facts are complex, and the judgment is lengthy. It also makes reference to Lewis Carroll, who now somehow appears in two consecutive Panopticon posts.

The judgment is contained in these two documents: FISH LEGAL UT DECISON PART 1 and FISH LEGAL UT DECISON PART 2.

Analysis  of the judgment will follow on Panopticon shortly (thus the barrister dreamed, while the bellowing seemed to grow every moment more clear).

Robin Hopkins

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Keynote speaker announced for 11KBW Information Law Conference 2015

February 9th, 2015 by Panopticon Blog

We are delighted to be joined by Maurice Frankel, Director of the Campaign for Freedom of Information, who will giving the keynote address at this year’s conference on “FOIA: is this what we expected – and is it good enough for the future?”

The 11KBW Information Law Conference is being held on 19th March 2015. As well as providing an over-view of the key developments in the field of information law, the conference will cover a range of topical issues including: whether the law governing State surveillance is fit for purpose, the relationship between data protection and the media and whether, at 10 years old, FOIA should be seen a boon to or a burden on society.

Date: 19th March 2015
Venue: Royal College of Surgeons, 35 – 43 Lincoln Inn Fields, London WC2A 3PE
Cost: £99 + VAT (20%) = £118.80 to attend half day plus lunch £150 + VAT (20%) = £180.00 to attend full day. We are offering a EARLY BIRD DISCOUNT – 10% off if you book before 27th February 2015 on both half and full day places.

For more information on the conference agenda and details on how to book please click here

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Local Offers

February 6th, 2015 by James Goudie QC

Section 30 in Part 3 of the Children and Families Act 2014 defines and prescribes the content of a “Local Offer”.  A local authority in England must publish information about the education and training, social care and health provision, for children and young people who have special educational needs or a disability, that it expects to be available in its area (or in some circumstances outside), whether or not it will be making that provision itself.  Schedule 2 to the Special Educational Needs and Disability Regulations 2014, SI 2014/1530, specify what information must be included in the Local Offer.  Mostyn J has considered these provisions in R (L & P) v Warwickshire County Council (2015) EWHC 203 (Admin).  He observed, at para 48, that Schedule 2 provides for a “very extensive range of information” to be published in the Local Offer, and referred to the “vast number” of people and bodies each local authority must consult before publishing its Local Offer and to the “huge range of information that must be referenced”.

Having referred to the statutory guidance, Mostyn J stated:

“51.       Although the prescriptions are extremely extensive it is important to understand that the requirement is no more than to publish information about what services are expected to be available.  Section 30 of the 2014 Act incorporates a publication obligation, no more, no less.”

At para 54, he said:

“…it must be very clearly understood what the purpose of the consultation is. It is about what appears in the Local Offer, which is a compendium of information. I remind myself of the words of section 30. The local authority has a duty to publish information about certain provision it expects to be available.”

At para 57, Mostyn J reiterated that the statutory consultation is about what the Local Offer should say about services to be provided, not about what services should be provided.  He dismissed the challenge to the fairness of the consultation.  He emphasized (para 59) that the Local Offer by its nature will always be subject to continuous updating; and, at para 77, approved the following submissions on behalf of the County Council:

(i) The development and publication of the Local Offer is, as the legislative framework envisages and the implementation guidance makes clear, intended to be an iterative process, subject to consultation and to be done in accordance with the new spirit of “co-production”. To update the website with further information on the Local Offer and to continue to do so as the Offer is refined and further developed is entirely lawful.

(ii) It is obviously not arguably unlawful for information to be published on the Council’s website by way of a link through to a partner’s website, for example with respect to the information on healthcare provision and SEN provision in schools.

James Goudie QC

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New Court of Appeal Judgment on handling of DNA materials by the police

February 6th, 2015 by Rupert Paines

The question of what uses can properly be made of DNA data held by the police is an acutely sensitive one. In X and Commissioner of the Police of the Metropolis and anor v Z (Children) and anor[2015] EWCA Civ 34, the Court of Appeal has held that, where such data is obtained by police in exercise of their search and seizure powers under Part II of PACE 1984, it may be retained and used only for the purposes of criminal law enforcement function. Thus, such data cannot be used, for example, in order to resolve issues of paternity in care proceedings before the family court.

The background to the appeal was that X had murdered his partner Y. In the context of care proceedings involving Y’s children, an issue had arisen as to whether X was in fact the biological father of the children. X, despite asserting that he was the children’s biological father, had refused to undergo DNA testing. In response to this refusal, the children’s guardian applied to the court for disclosure of certain DNA profiles held by the Metropolitan Police Service, particularly on the basis that those profiles could then be used to resolve the paternity issue. X objected to the disclosure. Importantly, the DNA profiles in issue had been derived from blood swabs taken by the police from the scene of the murder by the MPS under Part II PACE. It was common ground that the court could not order disclosure of those DNA profiles held by the police in exercise of their powers under Part V PACE (samples taken directly from persons). This was because there is a statutory prohibition contained in Part V of PACE which expressly prohibited the use of such materials other than for the purposes of criminal law enforcement. Munby P, who decided the case at first instance, concluded that the court had a discretion to order disclosure of the Part II DNA profiles and that the disclosure was justified, particularly in view of the Article 8 rights of the children. The MPS appealed, alongside the putative father. The Secretary of State appeared as intervenor.

The Court of Appeal allowed the appeal. It did so on the basis that the President’s approach could not be reconciled with the statutory scheme embodied in PACE, particularly when that scheme was read in a purposive manner and having regard to the Article 8 rights of those individuals whose DNA profiles were held by the police. In reaching this conclusion, the Court relied heavily on the judgment of the European Court of Human Rights in Marper, which itself highlighted the need for substantial controls around the handling of DNA data by the police.

Anya Proops and Sean Aughey acted for the MPS.

Rupert Paines

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Information Law Conference 2015

January 23rd, 2015 by Panopticon Blog

Join us at 11KBW’s Annual Information Law Conference on 19th March 2015.  As well as providing an over-view of the key developments in the field of information law, the conference will cover a range of topical issues including: whether the law governing State surveillance is fit for purpose, the relationship between data protection and the media and whether, at 10 years old, FOIA should be seen a boon to or a burden on society. Keynote speaker to be confirmed.

Click here to download the Information Conference Programme.

Venue and Booking information

Venue The Royal College of Surgeons of England, 35 – 43 Lincoln Inn Fields, London WC2A 3PE

Cost £99 + VAT (20%) = £118.80 to attend half day plus lunch; £150 + VAT (20%) = £180.00 to attend full day

EARLY BIRD DISCOUNT – 10% off if you book before 27th February 2015 on both half and full day places.

To Book To book your place on this conference please email RSVP@11kbw.com stating if you would to attend full or half day, the delegate name, firm, email address and any purchase order details you may require. You will be then sent a confirmation email of your place and invoiced. We do not have the facilities to accept payments by credit or debit cards.

CPD accredited with SRA and BSB: 4.5 hours

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Data protection: three developments to watch

January 15th, 2015 by Robin Hopkins

Panopticon likes data protection, and it likes to keep its eye on things. Here are three key developments in the evolution of data protection law which, in Panopticon’s eyes, are particularly worth watching.

The right to be forgotten: battle lines drawn

First, the major data protection development of 2014 was the CJEU’s ‘right to be forgotten’ judgment in the Google Spain case. Late last year, we received detailed guidance from the EU’s authoritative Article 29 Working Party on how that judgment should be implemented: see here.

In the view of many commentators, the Google Spain judgment was imbalanced. It gave privacy rights (in their data protection guise) undue dominance over other rights, such as rights to freedom of expression. It was clear, however, that not all requests to be ‘forgotten’ would be complied with (as envisaged by the IC, Chris Graham, in an interview last summer) and that complaints would ensue.

Step up Max Moseley. The BBC reported yesterday that he has commenced High Court litigation against Google. He wants certain infamous photographs from his past to be made entirely unavailable through Google. Google says it will remove specified URLs, but won’t act so as to ensure that those photographs are entirely unobtainable through Google. According to the BBC article, this is principally because Mr Moseley no longer has a reasonable expectation of privacy with respect to those photographs.

The case has the potential to be a very interesting test of the boundaries of privacy rights under the DPA in a post-Google Spain world.

Damages under the DPA

Second, staying with Google, the Court of Appeal will continue its consideration of the appeal in Vidal-Hall and Others v Google Inc [2014] EWHC 13 (QB) in February. The case is about objections against personal data gathered through Apple’s Safari browser. Among the important issues raised by this case is whether, in order to be awarded compensation for a DPA breach, one has to establish financial loss (as has commonly been assumed). If the answer is no, this could potentially lead to a surge in DPA litigation.

The General Data Protection Regulation: where are we?

I did a blog post last January with this title. A year on, the answer still seems to be that we are some way off agreement on what the new data protection law will be.

The latest text of the draft Regulation is available here – with thanks to Chris Pounder at Amberhawk. As Chris notes in this blog post, the remaining disagreements about the final text are legion.

Also, Jan Philipp Albrecht, the vice-chairman of the Parliament’s civil liberties committee, has reportedly suggested that the process of reaching agreement may even drag on into 2016.

Perhaps I will do another blog post in January 2016 asking the same ‘where are we?’ question.

Robin Hopkins @hopkinsrobin

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How to apply the DPA

January 15th, 2015 by Robin Hopkins

Section 40 of FOIA is where the Freedom of Information Act (mantra: disclose, please) intersects with the Data Protection Act 1998 (mantra: be careful how you process/disclose, please).

When it comes to requests for the disclosure of personal data under FOIA, the DPA condition most commonly relied upon to justify showing the world the personal data of a living individual is condition 6(1) from Schedule 2:

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.

That condition has multiple elements. What do they mean, and how do they mesh together? In Goldsmith International Business School v IC and Home Office (GIA/1643/2014), the Upper Tribunal (Judge Wikeley) has given its view. See here Goldsmiths. This comes in the form of its endorsement of the following 8 propositions (submitted by the ICO, represented by 11KBW’s Chris Knight).

Proposition 1: Condition 6(1) of Schedule 2 to the DPA requires three questions to be asked:

(i) Is the data controller or the third party or parties to whom the data are disclosed pursuing a legitimate interest or interests?

(ii) Is the processing involved necessary for the purposes of those interests?

(iii) Is the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject?

Proposition 2: The test of “necessity” under stage (ii) must be met before the balancing test under stage (iii) is applied.

Proposition 3: “Necessity” carries its ordinary English meaning, being more than desirable but less than indispensable or absolute necessity.

Proposition 4: Accordingly the test is one of “reasonable necessity”, reflecting the European jurisprudence on proportionality, although this may not add much to the ordinary English meaning of the term.

Proposition 5: The test of reasonable necessity itself involves the consideration of alternative measures, and so “a measure would not be necessary if the legitimate aim could be achieved by something less”; accordingly, the measure must be the “least restrictive” means of achieving the legitimate aim in question.

Proposition 6: Where no Article 8 privacy rights are in issue, the question posed under Proposition 1 can be resolved at the necessity stage, i.e. at stage (ii) of the three-part test.

Proposition 7: Where Article 8 privacy rights are in issue, the question posed under Proposition 1 can only be resolved after considering the excessive interference question posted by stage (iii).

The UT also added this proposition 8, confirming that the oft-cited cases on condition 6(1) were consistent with each other (proposition 8: The Supreme Court in South Lanarkshire did not purport to suggest a test which is any different to that adopted by the Information Tribunal in Corporate Officer).

Those who are called upon to apply condition 6(1) will no doubt take helpful practical guidance from that checklist of propositions.

Robin Hopkins @hopkinsrobin

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Happy birthday FOIA: orthodoxy and liberalism

January 15th, 2015 by Robin Hopkins

With FOIA celebrating its tenth birthday this month, it is striking that one of its most taken-for-granted axioms has been called into question. The axiom is this: the relevant time is the time of the request, extending perhaps until the statutory time for compliance with the request. When you are assessing the public interest balance and the engagement of exemptions, that is the time you look to; you ignore later developments.

In Defra v IC and the Badger Trust (GI/79/2014), the requester (the Badger Trust) had requested information about Defra’s risk assessments for the proposed badger culling programme. The ICO ordered disclosure. Defra appealed. The case was transferred to the Upper Tribunal due to a witness anonymity issue. The Upper Tribunal dismissed Defra’s appeal. It was not persuaded by Defra’s evidence as to the public interest balance. The judgment is here DEFRA v ICO and Badger Trust – Judgment on Public Interest.

In its judgment, the UT pondered the question of the relevant time. It declined to rule, but stated that it considered this question to be an open one: see paragraphs 44-48. A central tenet of FOIA/EIR orthodoxy over the past decade has been called into question.

Another recent UT judgment is worthy of note as FOIA turns ten. It does not introduce uncertainty, but rather – from the point of view of FOIA’s fans – provides a heartening affirmation of the purpose of the legislation. The case is UCAS v IC and Lord Lucas [2014] UKUT 0557 (AAC): see here UCAS. It was about the extent to which FOIA applied to UCAS. The point I draw out here is this one, at paragraph 39 of the decision of Judge Wikeley:

“I agree with Mr Knight that the starting point in this exercise in statutory interpretation must be the principle that FOIA is a constitutionally important piece of legislation, the scope of which must be interpreted broadly. This much is plain from Sugar (No. 2) itself (see Lord Walker at [76] and Lord Mance at [110]), as well as from other decisions of the House of Lords and Supreme Court (see Common Services Agency v Scottish Information Commissioner [2008] UKHL 47 at [4] per Lord Hope and Kennedy v Charity Commission [2014] UKSC 20 at [153] per Lord Sumption). This emphasis on a liberal construction is, to borrow a phrase from a different context of statutory interpretation, the golden thread which runs through the FOIA case law, whether in the rarefied atmosphere of the Supreme Court or on the judicial shop floor at the First-tier Tribunal.”

So then, happy birthday FOIA. Some of the assumptions of your youth may be in question, but your golden thread is strong. Somebody put that in a greeting card, please.

I appeared in the Badger Trust case. Chris Knight appeared in the UCAS case.

Robin Hopkins @hopkinsrobin

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Campaigning journalism is still journalism: Global Witness and s.32 DPA

December 23rd, 2014 by Peter Lockley

In an important development in the on-going saga of Steinmetz and others v Global Witness, the ICO has decided that the campaigning NGO is able to rely on the ‘journalism’ exemption under s.32 of the Data Protection Act 1998 (DPA).

The decision has major implications for journalists working both within and outside the mainstream media, not least because it makes clear that those engaged in campaigning journalism can potentially pray in aid the s. 32 exemption. Importantly, it also confirms that the Article 10 right to freedom of expression remains a significant right within the data protection field, notwithstanding recent developments, including Leveson and Google Spain, which have tended to place privacy rights centre-stage (Panopticons passim, maybe even ad nauseam).

Loyal readers will be familiar with the background to the Global Witness case, for which see original post by Jason Coppel QC.

In brief: Global Witness is an NGO which reports and campaigns on natural resource related corruption around the world. Global Witness is one of a number of organisations which has been reporting on allegations that a particular company, BSG Resources Ltd (“BSGR”), secured a major mining concession in Guinea through corrupt means. A number of individuals who are all in some way connected with BSGR (including Benny Steinmetz, reported to be its founder) brought claims against Global Witness under the DPA. The claims included a claim under s. 7 (failure to respond to subject access requests); s. 10 (obligation to cease processing in response to a damage and distress notification); s. 13 (claim for compensation for breach of the data protection principles) and s. 14 (claim for rectification of inaccurate data). Significantly, Mr Steinmetz alleged, amongst other things, that because he was personally so closely connected to BSGR, any information about BSGR amounted to his own personal data. If successful, the claims would have the effect of preventing Global Witness from investigating or publishing further reports on the Guinea corruption controversy.

Global Witness’s primary line of defence in the High Court proceedings was that all of the claims were misconceived because it was protected by the ‘journalism’ exemption provided for by s. 32 of the DPA. After a procedural spat in March (Panopticon report here), Global Witness’s application for a stay of the claims under s. 32(4) DPA was allowed by the High Court. The matter was then passed to the ICO for a possible determination under s.45 DPA. (In summary, such a determination will be made if the ICO concludes, against the data controller, either: (a) that the data controller is not processing the personal data only for the purposes of journalism or (b) it is not processing the data with a view to future publication of journalistic material).

In fact, the ICO declined to make a determination under s. 45. Moreover, he decided that, with respect to the subject access requests made by the claimants, Global Witness had been entitled to rely on the exemption afforded under s. 32. With respect to the latter conclusion, the ICO held that there were four questions which fell to be considered:

(1) whether the personal data is processed only for journalism, art or literature (s.32(1))

When dealing with this question, the ICO referred to his recent guidance Data Protection and journalism: a guide for the media, in which he accepted that non-media organisations could rely on the s.32 exemption, provided that the specific data in question were processed solely with a view to publishing information, opinions or ideas for general public consumption (p.30). He went on to conclude that this requirement could be met even where the publication is part of a wider campaign, provided that the data is not also used directly for the organisation’s other purposes (e.g. research or selling services). The ICO was satisfied that this condition was met for the data in question.

(2) whether that processing is taking place with a view to publication of some material (s.32(1)(a))

It is apparent from the decision letter that Global Witness was able to point to articles it had already published on the Simandou controversy, and since the controversy was on-going, to show it intended to publish more such articles. The ICO was satisfied that, in the circumstances, this second question should be answered in the affirmative.

(3) whether the data controller has a reasonable belief that publication is in the public interest (s.32(1)(b))

The ICO emphasised that the question he had to ask himself was not whether, judged objectively, the publication was in the public interest, but rather whether Global Witness reasonably believed publication was in the public interest. In the circumstances of this case – small NGO shines a spotlight on activities of large multinational in one of the world’s poorest countries amid allegations of serious corruption – he readily accepted that Global Witness held such a belief, particularly as the data related to the data subjects’ professional activities, for which they in any event had a lower expectation of privacy than in relation to their private lives.

(4) whether the data controller has a reasonable belief that compliance is incompatible with journalism. (s.32(1)(c))

Again, the focus here was on Global Witness’ reasonable beliefs. The ICO accepted that Global Witness had reasonable concerns that complying with the subject access requests which had been made by the claimants would prejudice its journalistic activity in two ways:, first, by giving the data subjects advance warning of the nature and direction of Global Witness’ investigations, which could be used to thwarting effect and, second, by creating an environment in which the organisation’s sources might lose confidence in Global Witness’ ability to protect their identities.

The decision will no doubt substantially reassure campaigning and investigative journalists everywhere. Unsurprisingly, it has been widely reported in the media (see e.g. Guardian article, Times article and FT article here). Notably, the FT reports that the claimants are asserting that they intend to challenge the decision. We will have to wait until the New Year to discover whether these assertions translate into action and, if they do translate into action, what form that action will take.

Anya Proops of 11KBW acts for Global Witness.

Peter Lockley

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Posted in INFORMATION LAW | Comments Off on Campaigning journalism is still journalism: Global Witness and s.32 DPA

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