The Supreme Court’s much anticipated judgments in Kennedy v The Charity Commission make for a long read. But they are very important. All the parties in Kennedy were represented by Counsel from 11KBW: Andrew Sharland for Mr Kennedy; Karen Steyn and Rachel Kamm for the Charity Commission and the Secretary of State; Ben Hooper for the ICO; and Christopher Knight for the Media Legal Defence Initiative and Campaign for Freedom of Information.

The factual background is described in previous posts. In short the appeal concerned a FOIA request made by Mr Kennedy, a journalist at The Times, in June 2007, for disclosure of information concerning three inquiries conducted by the Charity Commission between 2003 and 2005 into the ‘Mariam Appeal’, which was launched by Mr George Galloway in connection with the sanctions imposed on Iraq following the first Gulf War. The Charity Commission relied on section 32(2) of FOIA in refusing the request. That provides an absolute exemption from disclosure where information held by a public authority is held only by virtue of being contained in either (a) any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or (b) any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration. The Court of Appeal had held that this exemption applied to a request made in 2007 concerning inquiries which had finished in 2005.

The two primary questions for the Supreme Court were (1) whether the absolute exemption in section 32(2) continued after the end of an inquiry (so that Mr Kennedy was precluded from receiving the information); and (2) if so, what, if any difference Mr Kennedy’s rights under article 10 of the European Convention on Human Rights (the “ECHR”) made to that result. In the result the Court’s discussion ranged more widely than may have been anticipated.

The majority of the Court agreed with the judgments of Lord Mance and Lord Toulson. (Lord Sumption gave a separate, concurring, judgment). The majority decided as follows.

(1) Section 32(2) continues to apply after the end of an inquiry

The Court held that the absolute exemption in section 32(2) FOIA does last beyond the end of an inquiry until the relevant information is destroyed or for up to 30 (or in future 20) years under the Public Records Act 1958. There were two principal reasons. First, that construction was supported by the words of the section themselves read as a whole. The words “for the purposes of the inquiry or arbitration” qualified the immediately preceding words in 32(2)(a) and (32)(2)(b) and referred to the original purpose for which the relevant documents were placed in the custody of, or were created by, a person conducting an inquiry. Secondly, the Court considered that its interpretation sat comfortably within FOIA as a whole.  Under section 62(1) FOIA, a record becomes a “historical record” at the end of 30 years, and, under section 63(1), information contained in a historical record cannot be exempt information because of section 32. Lords Mance and Toulson considered that, in that context, information falling within section 32 would continue to be exempt for 30 years instead of ceasing to be exempt at the end of an inquiry. That meant that, absent Mr Kennedy’s being able to demonstrate that Article 10 required a different result, he would not be entitled to the information he sought under FOIA itself.

(2) Article 10 ECHR did not lead to a different construction of section 32(2)

Mr Kennedy argued that if (as the Court held, above) he was not entitled to the information because of s.32(2), section 32(2) was incompatible with his rights under Article 10 ECHR, and that it should be ‘read down’ under the HRA (at the very least so as to mean that s.32(2) ceased to be an absolute exemption after the end of an inquiry).

There were two bases on which the Court decided that Article 10 did not, however, assist him.

The first was that there was no basis for concluding that section 32(2) was inconsistent with Article 10 in circumstances where s.32(2) put him in no less favourable a position than he was otherwise in under general statute and common law to access the information. That was because FOIA is not the only means through which information can be accessed. What section 32(2) of FOIA does is to take information falling within the absolute exemption outside the scope of that particular disclosure regime; but this does not mean that the information subject to the exemption could not otherwise be required to be disclosed by law.  Other statute, or the common law, might require disclosure, even though FOIA did not. According to the majority it could not be said that section 32(2) of FOIA was incompatible with the ECHR in those circumstances.

This is, plainly, a point of wider significance. It may be that the extent to which Article 10 may lack application because of the existence of equivalent rights of access under other statute or common law is likely to depend on the circumstances.

Both Lord Mance and Lord Toulson discussed rights of access to information in the specific context of Mr Kennedy’s request. In Lord Mance’s opinion, the Charity Commission had the power to disclose information to the public concerning inquiries on which it has published reports, both in pursuit of its statutory objective under the Charities Act 1993 (since replaced with the Charities Act 2011) of increasing public trust in, and the accountability of, charities, and under general common law duties of openness and transparency on public authorities. Lord Toulson placed greater emphasis on the fundamental principle of open justice forming part of the common law:

‘It has long been recognised that judicial processes should be open to public scrutiny unless and to the extent that there are valid countervailing reasons. This is the open justice principle. The reasons for it have been stated on many occasions. Letting in the light is the best way of keeping those responsible for exercising the judicial power of the state up to the mark and for maintaining public confidence’ (paragraph 110)

The exercise of the power of disclosure pursuant to the open justice principle would be subject to judicial review. Lord Mance considered that the courts should apply a high standard of review to any decision not to disclose information in answer to questions of real public interest raised by a journalist in relation to inquiries on which the Charity Commission has published reports (see e.g. paragraph 56).

The second reason why Mr Kennedy was not assisted by Article 10 according to the majority was that article 10 was not engaged because it does not impose a freestanding positive general duty of disclosure on public authorities. There is a particularly detailed discussion of the recent developments in the case law of the European Court of Human Rights in the judgment of Lord Mance at paragraphs 57-100, which starts with the statement that the jurisprudence ‘is neither clear nor easy to reconcile’. Technically, the discussion is obiter, because, on the majority’s approach, it was unnecessary to decide the point for the resolution of the appeal. But it will remain, on the present state of the Strasbourg case law, difficult or impossible for requesters to rely on Article 10 as a means of arguing for a more favourable construction of FOIA.

Mr Kennedy’s appeal was, accordingly dismissed. His request under FOIA was properly refused in reliance on s.32(2) and Article 10 did not assist him.

Lord Wilson and Lord Carnwath, dissenting, would have allowed the appeal on the basis that Article 10 was engaged by Mr Kennedy’s FOIA request and should have led to s.32(2) being read down such that the absolute exemption expired at the end of the relevant inquiry.

My own view is that the greatest significance of Kennedy is its highlighting of the fact that FOIA is only one means of obtaining information from public authorities. If a different statutory or common law basis may be found for invoking a right in particular circumstances, a judicial review application may also be available. Whether that is a wise route for requesters to pursue, including given the costs implications of that form of litigation which do not apply in the same way in the tribunal, is a different question, but it is one to which fresh consideration might now be given in appropriate cases.

The government currently uses a scheme of ‘protective markings’ to classify the sensitivity of the information and documents it holds.  The protective markings are, in ascending order of security, protect; restricted; confidential; secret; top secret.  For further information see the HMG Security Policy Framework.

As of 2 April 2014 protective markings will be abolished and replaced by ‘security classifications’.  Those security classifications will be ‘official’, ‘secret’, and ‘top secret’.

For further information see the document Government Security Classifications and accompanying guidance.

Thomas Ogg

 What considerations are relevant when deciding whether a Ministerial diary should be disclosed under FOIA?  The decision of the First-tier Tribunal in Department of Health v Information Commissioner EA/2013/0087 is, perhaps surprisingly, the first Tribunal decision to address this issue.  The judgment engages with a number of difficult issues:  the Tribunal’s approach to Government evidence, the value of cross-examination in Tribunal hearings, aggregation of public interests under FOIA, and Parliamentary privilege.  Hence it is of general importance, going beyond the intrinsic interest of its specific subject matter.

The request was for the Ministerial diary of the Rt Hon Andrew Lansley MP for the period 12^th May 2010 to 30^th April 2011, during which he was Secretary of State for Health.  During this period, the Minister’s primary focus was the Department’s NHS reform programme.  The requester was a journalist dealing with health issues.  After the Department refused the request, and maintained its refusal on internal review, the requester complained to the Information Commissioner.  In the course of the Commissioner’s investigation the Department disclosed a heavily redacted version of the diary.

The Commissioner ordered the Department to disclose the whole diary, with very limited redactions.  On the Department’s appeal, the First-tier Tribunal upheld the Commissioner’s decision, with minor modifications reflecting points that were conceded by the Commissioner before the Tribunal.

The material before the Tribunal included witness statements from Sir Alex Allan and Paul Macnaught in support of the Department’s case.  Sir Alex is a distinguished former civil servant, currently the Prime Minister’s Independent Adviser on Ministerial Interests.  Mr. Macnaught is the Director of Assurance at the Department.  The Commissioner had initially accepted that the hearing should take place without oral evidence, but on the Tribunal’s request Sir Alex and Mr. Macnaught attended the hearing and were questioned.

At the start of its decision, the Tribunal considered whether the entire contents of the diary were “held” by the Department, within the meaning of FOIA section 3(2).  In this context it focused on the entries that related to non-Ministerial activities such as constituency work.  The Department accepted that these entries were held by the Department when they were first made, but contended that by the time of the request the Department was merely providing electronic storage for this information.  The Tribunal rejected this.  There was no evidence of the Minister asking the Department to store this information; and even after the engagements had been fulfilled the information remained of potential value to the Department, e.g. if there was a need to check where the Minister had been at a particular time.  The whole of the diary, therefore, was held by the Department and potentially disclosable under FOIA.

As to the personal data exemption (section 40(2)), there was little controversy except in relation to meetings between the Minister and constituency MPs acting as elected representatives.  The Commissioner considered that the identity of the MPs should be disclosed; the Department did not concede this; and the Tribunal agreed with the Commissioner.

In relation to the national security exemption (ss 23(5) and 24(2)) there was no dispute between the Commissioner and the Department as to the information that ought to be withheld.  The Tribunal considered that it would be sterile to address the areas of disagreement as to the precise application of these two exemptions.

The main area of controversy was the application of the exemptions in s 35(1)(a) (formulation or development of Government policy), s 35(1)(b)  (Ministerial communciations), and s 35(1)(d) (operation of a Ministerial private office).  By the time the Tribunal came to make its decision, the Commissioner accepted that these exemptions were applicable where claimed by the Department: so the issue was whether the public interest in maintaining the exemptions outweighed the public interest in disclosure.

At the start of its consideration of the public interest test, the Tribunal addressed a number of general issues.

It began by considering the value of oral evidence.  The Tribunal referred to what was said about cross-examination by the Upper Tribunal in APPGER v IC and FCO [2013] UKUT 560 (AAC).  It interpreted the Upper Tribunal’s remarks as highlighting the need to consider whether cross-examination was necessary in the particular case, but not as ruling it out.  The Tribunal considered that oral evidence and cross-examination could often be of great assistance; in particular it affirmed the value of testing the public authority’s evidence in this way where cases involved a difficult judgment on the balance of public interest.  Cross-examination could be especially important where there was closed evidence.

Next, the Tribunal considered the extent to which deference should be given to Government evidence, and the relevance (if any) of the case law about public interest immunity (PII) when applying the public interest test under FOIA.  The Tribunal rejected the contention that FOIA cases and PII cases should in all respects be approached in the same way.  The remarks in the APPGER case about the relevance of PII were intended to emphasise the need, in both PII and FOIA cases, properly to identify the factors for and against disclosure; they were not meant to assimilate FOIA and PII in all respects.  The Tribunal accepted that proper weight should be given to the expertise of Government witnesses; but, if “deference” meant that their evidence should be accepted unless it lacked any rational basis or was given in bad faith, then the Tribunal rejected the suggestion that it should show deference to that evidence.  Broadly speaking, the Tribunal accepted that the Government’s expertise would carry greater weight in relation to state security or international relations than in s 35 cases, but this was not a hard and fast distinction.

When it came to striking the public interest balance, the Tribunal emphasised the need to identify the particular benefits and detriments, and their likelihood, on each side of the equation.  At the same time, the Tribunal recognised the assumption underlying FOIA, that there is a general public interest in the transparency of public authorities; in many cases it would only be possible for the benefits of disclosure to be identified at a high and generic level.  It indicated that the inclusion (e.g. in skeleton arguments) of a table summarising the various factors and their significance could often be of assistance.

The discussion of aggregation is particularly interesting.  Since the decision of the European Court in the Ofcom case, Tribunals in EIR cases have been required to look at exemptions on an aggregated basis, considering the overall public interest balance for and against disclosure; there is as yet no definitive judgment as to whether the same approach applies under FOIA.  Here, the Tribunal took a middle position between the submissions made for the Department and the Commissioner.  It accepted (contrary to the Commissioner’s position) that aggregation applied under FOIA.  But it took a more limited view of aggregation than did the Department:  properly understood, Ofcom supported aggregation in EIR cases only where there was an overlap between the interests served by the different exemptions, and the same approach should be applied under FOIA.

In relation to Parliamentary materials, the Department had relied upon parts of chapter 6 of the House of Commons Justice Committee report:  Post-legislative scrutiny of the Freedom of Information Act 2000 (3^rd July 2012).  The Tribunal considered whether it was proper to take this material into account, having regard to Parliamentary privilege.  It discussed the decision of Stanley Burnton J in the OGC case, and the less restrictive approach to the use of Parliamentary materials adopted in the R (Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin):  the Tribunal decided to follow the Age (UK) case.  The Tribunal took into account the material relied upon by the Department, and found it helpful by way of background, but stated that it would be inappropriate to rely on any particular view expressed to or by the Parliamentary Committee.

The Tribunal then carried out the public interest balance in relation to the disputed information (i.e. the relevant Ministerial diary).  In respect of both the interests favouring disclosure and the interests in maintaining the section 35 exemptions, the Tribunal summarised its conclusions in a table, setting out the factors taken into account and the impact of disclosure on those factors.  For instance, in terms of the interests served by disclosure, it considered that there would be a “positive” impact in relation to “accountability:  whether the public was getting good value from the Minister and whether he was properly carrying out his functions”.  In terms of the adverse impacts of disclosure, it considered that a “modest additional burden” was likely by reason that “potentially misleading information would need to be explained”.  A number of factors for and against disclosure were listed and assessed in a similar way.

In order to reach the conclusions set out in tabulated form, the Tribunal conducted a detailed assessment of the evidence given.  It was critical of some of the evidence given by the Department’s witnesses, and was careful to explain why despite their expertise it was departing from that evidence in some regards: this is the practical application of the Tribunal’s discussion of deference, earlier in the decision.  For instance, in relation to the public interest in favour of disclosure, the Department’s evidence was that this interest was substantially met by the publication of quarterly information releases about ministerial activity.  The Tribunal was critical of this part of the evidence for giving insufficient weight to the fact that the information releases (unlike the diary) did not cover meetings by video conference or telephone.  In relation to the public interests for maintaining the exemption, the Tribunal considered that some of the Department’s evidence was unrealistic:  for instance, it did not accept that the prospect of disclosure of their diaries would encourage Ministers to arrange unnecessary meetings as window dressing in order to deflect potential public criticism.  The overall effect of these criticisms, according to the Tribunal, was to reduce their confidence in the objectivity of the evidence and the accuracy and soundness of the witnesses’ evaluative judgments.

Overall, the Tribunal’s assessment was that the factors in favour of disclosure outweighed those in favour of maintaining the exemptions, but not by a particularly large margin.  With limited exceptions – reflecting concessions made by the Commissioner at the hearing – it upheld the Commissioner’s decision in favour of disclosure.

Apart from the interest of its specific subject-matter, the case is of general importance in relation to the Tribunal’s approach to the public interest test, especially under section 35.  It both exemplifies and defends the Tribunal’s established approach:  i.e. the Tribunal will consider Government evidence carefully; witnesses will be cross-examined on their assessment of the factors for and against disclosure; the Tribunal will take account of witness expertise, but will ultimately form its own view; and the Tribunal will reject Government evidence where it thinks it appropriate to do so, notwithstanding the absence of witness evidence taking a contrary view.  The central question on any appeal will be whether this approach requires modification.

Timothy Pitt-Payne QC

Deciding whether information which arguably relates to an individual amounts to their ‘personal data’ for the purposes of s. 1(1) of the Data Protection Act 1998 is one of the more challenging aspects of the DPA regime. In making the judgment call in any particular case, data controllers have routinely looked to the guidance set out Auld LJ’s judgment in the well known case of Durant v Financial Services Act [2003] EWCA Civ 1746, [2011] 1 Info LR 1. In his judgment, Auld LJ indicated that there were two ‘notions’ likely to be of assistance when it came to determining whether particular data was sufficiently ‘personal’ that if tell within the scope of the DPA:

‘The first is whether the information is biographical in a significant sense, that is, going beyond the recording of the putative data subject’s involvement in a matter or an event that has no personal connotations, a life event in respect of which his privacy could not be said to be compromised.  The second is one of focus.  The information should have the putative data subject as its focus rather than some other person with whom he may have been involved or some transaction or event in which he may have figured or have had an interest, for example, as in this case, an investigation into some other person’s or body’s conduct that he may have instigated.  In short, it is information that affects his privacy, whether in his personal or family life, business or professional capacity.’ (§28)

Auld LJ’s conclusion that the information must be something which affects the data subject’s privacy is of course unsurprising. As is made clear by the recitals to Directive 95/46/EC (from which the DPA is derived), the core aim of the Directive is to protect our fundamental right to privacy in the context of the management of our data. If particular data does not meaningfully touch on our privacy, then in a sense why should it fall within the ambit of the legislation at all?

So what then is the position in respect of data which records a person’s name? Is that information automatically ‘personal data’ because it is a name which both in a sense identifies and relates to a particular individual? Or does that data have to arise in some form of context whereby it tells you something informative about that individual beyond merely what their name is? This was precisely the issue which the Court of Appeal had to consider in the recent case of Edem v IC & Financial Services Authority [2014] EWCA Civ 92.

In Edem, Mr Edem had made a number of complaints to the FSA concerning its regulation of a particular company. Mr Edem then sought disclosure from the FSA of information about him and his complaints. The sole issue which the Court of Appeal had to consider was whether information amounting to the names of three individuals within the FSA who had worked on the complaints constituted their ‘personal data’ under s. 1(1) DPA. The individuals in question were all junior employees who did not have public facing roles.

The Court of Appeal came down firmly in favour of the conclusion that the names per se constituted ‘personal data’. Moses LJ, with whom Beaton LJ and Underhill LJ agreed, held that:

‘A name is personal data unless it is so common that without further information, such as its use in a work context, a person would remain unidentifiable despite its disclosure’ (§20).

The Court of Appeal sought to reconcile this conclusion with the approach adopted by the Court of Appeal in Durant by saying that the Court of Appeal in Durant was looking at a different issue, namely whether information which did not on its face concern or name Mr Durant was still his personal data because it related to a complaint which he had made to the FSA (§§18-20). The Court went on to find that the ‘notions’ identified by Auld LJ in §28 of his judgment in Durant were of no relevance to a case where what was in issue was information comprising a person’s name, as that information was always intrinsically ‘personal data’, unless it was such a common name that considered on its own it had to be regarded as being effectively anonymous.

Importantly, the Court of Appeal went on to cite with approval the following extract from the Commissioner’s Technical Guidance on the definition of personal data:

‘“6.         It is important to remember that it is not always necessary to consider ‘biographical significance’ to determine whether data is personal data.  In many cases data may be personal data simply because its content is such that it is ‘obviously about’ an individual.  Alternatively, data may be personal data because it is clearly ‘linked to’ an individual because it is about his activities and is processed for the purpose of determining or influencing the way in which that person is treated.  You need to consider ‘biographical significance’ only where information is not ‘obviously about’ an individual or clearly ‘linked to’ him.”

The judgment is important for a number of reasons. First, it suggests that the Durant guidance must not be treated as embodying golden rules of universal application. This is likely to trouble many data controllers who have in the past approached Durant as it if had biblical authority. Second, it marks a clear judicial endorsement of the fairly generous approach to the construction of the term ‘personal data’ embodied in the ICO’s guidance. What remains to be seen is how the judgment will be held to apply to cases which do not involve such patently identifying information.

Robin Hopkins represented the ICO. Jason Coppel QC represented the Financial Conduct Authority.

Anya Proops