James Goudie QC, instructed by John Bridger of Preston Redman, appeared for Councillor John Beesley, the Deputy Leader of Bournemouth Borough Council, before the First-Tier Tribunal (Local Government Standards).  The Tribunal (Case No: LGS/2010/0533) found that Cllr Beesley had not breached the Code of Conduct.  He had declared personal interests.  They were not also prejudicial interests.  Tribunal Judge Chris Hughes OBE accepted the submission that:

             “The test to be applied under the Code of Conduct is in essence the same as the test for apparent bias.  The member of the public viewing these circumstances would demonstrate two key characteristics – adopting a balanced approach and while not being complacent would not be unduly sensitive or suspicious (Gillies v Secretary of State for Work and Pensions [2006] 1WLR 781).  The matter must be considered from the point of view of an observer who is both informed and fair minded.  The question to be addressed by the member of the public with these characteristics is whether there is a likelihood in other words a real possibility (Porter v Magill [2002] 2AC 357) of bias.”

Two decisions on 21 March 2011 of differently constituted First-Tier Tribunals, Johnston v I Co and Brecon Beacons National Park Authority, EA/2010/0130/0131, and Gilbert v I Co and Local Government Ombudsman, EA/2010/0190, both considered the exemption from disclosure constituted by FoIA s40.  In each case the FTT found that individuals were the focus of the information requested and that it constituted personal data.  In each case the FTT considered whether disclosure would breach the first data protection principle under the DPA, in particular whether disclosure would be unfair, whether the disclosure was necessary to promote legitimate interests, and whether disclosure would cause unwarranted interference with the interests of the individuals whose data was in issue, especially in the case of a junior officer and where any legitimate aims of the requester could be achieved by a means that interfered less with the privacy of the individual officer, whilst retaining accountability.

James Goudie QC

In March of last year, I blogged about a first-tier tribunal decision which looked at the question of whether a local authority was obliged under the EIR to allow an applicant to inspect property search information free of charge – see my post on the East Riding v IC case here (see also my post on the High Court judgment in Onesearch here). This is a question which has recently been revisited by the Upper Tribunal in Kirklees Council v IC & Pali Ltd. In Kirklees, a property search company (Pali) had written to Kirklees Council asking that it be allowed to inspect those property search records held by the council which would enable it (Pali) to answer particular questions contained in the relevant property search form issued by the Law Society (the CON29R form). Pali made clear in its request that it expected to be allowed to inspect the records free of charge in accordance with r. 8(2) EIR. The council refused the request and sought to charge Pali a fee for provision of the relevant information under the Local Authorities (Charges for Property Searches) Regulations 2008. The Commissioner concluded that the council ought to have permitted the applicant to inspect the records free of charge under the EIR. The council appealed against that decision. The case was referred directly to the Upper Tribunal.

The council’s principal argument on appeal was that Pali’s request was not a valid information request at all because, as the council put it, the request was a ‘purposive’ request rather than a ‘descriptive’ request – i.e. it was not a valid request because it was delineated by reference to a particular purpose, namely enabling Pali to answer the questions in the CON29R form, rather than one which sought simply to describe the particular information in question. The Upper Tribunal rejected this argument. It held that the terms ‘purposive’ and ‘descriptive’ requests were ‘unhelpful and misleading’ in this context and that, more generally, the distinction the council was seeking to draw would risk imposing technical hurdles on applicants which ‘could risk unduly narrowing access to environmental information’. The Tribunal also rejected a secondary case advanced by the council to the effect that r. 8 operated so as to enable it to charge for locating and retrieving relevant information prior to allowing inspection of that information. It held that r. 8(2) precluded an authority from charging for allowing applicants to inspect information in situ and that a charge was only permissible if copy documents were provided to the applicant or the information was accessed other than by means of in situ inspection. The decision should shortly be available on the Tribunal website.

In Chichester District Council v Friel, Case No. EA/2010/0153, Decision on 16 March 2011, the First-Tier Tribunal was concerned with a request for information with regard to a planning application made by the Council to itself.  The Tribunal rejected arguments by the Council that EIR 12(5)(d), confidentiality, and 12(5)(e), commercial or industrial information, applied.  EIR 12(4)(e), however, internal communication, did apply to a valuation.  The issue therefore was as to the application of the Public Interest Test.  The Tribunal regarded the public interest in favour of disclosure as being enhanced by what it called (para 39) a “deficit of democratic engagement”.  The Tribunal observed (para 29) that whereas, prior to the major changes to local government in 2000, ward members were involved in a variety of decision making Committees, it was commonly the case now that almost all decisions are taken by a very small group of Councillors in Cabinet, and that the ability of Councillors not in Cabinet to scrutinise and thereby render accountable decisions taken which are not in the public domain relies upon either matters going to full Council or the Scrutiny & Overview Committee exercising their ‘call in’ powers. In the instant appeal the decision to sell the land for development had gone to Council in 2003. It had not since been before any Council or Committee meeting. Thus, as at the material time in mid-2009, there had been no formal Councillor review or input to this proposal for almost 6 years. Throughout this period, the issues as to sale, nature of development and planning permission had been dealt with at officer level.  Those opposed to the development were consistently and correctly told that financial viability was not a valid planning consideration and as such, they were told that their concerns in this regard, could not be taken into account.   This left the opponents at a loss as to when and how they could access information on this issue and when and how their concerns could be addressed and their views made known.

As to public interest factors against disclosure, the Council urged that, if disclosure was made, the Council would need to change its processes to its detriment. It was said that the Council would need to take decisions without the benefit of a valuation and/or the valuation would need to be in such vague terms as to be essentially worthless. This would inevitably, it was said, mean that the Council’s decisions would be less effective potentially to the financial detriment of local taxpayers.

As regards the possibility that the Council would change its practices as a result of disclosure, thereby impeding internal communications, the Tribunal (para 40) noted however that there was no evidence of this, merely speculation and assertion on the part of the Council. That this would follow, ignored the developments in local government since the introduction of FOIA and the EIR. The Tribunal expected authorities to understand by now that disclosure in an individual case was specific to the circumstances of that case. In that sense, disclosure under FOIA and EIR is never routine. In any event, any changes to procedure would still need to provide for elected members being properly informed of relevant matters in the decision making process. The Tribunal questioned whether the Council’s reluctance to make disclosure in this case was a product of an old orthodoxy that valuations will never, in any circumstances, be made public.

In all the circumstances, the Tribunal did not find itself able to conclude that the disclosure would be likely (as distinct from possible) to have a negative impact. Given the passage of time since the valuation and the capacity for variable factors to reduce its reliability, the Tribunal had not been satisfied by the Council’s argument that there was an appreciable risk to the receipt of best value.  Moreover, the Tribunal noted that certain of the information contained within the valuation document was already in the public domain.  In all the circumstances, the Tribunal found that the public interest in maintaining the exception did not outweigh the public interest in disclosure.

James Goudie QC

The papers from this week’s Information Law seminar are now on the 11KBW website here and here.  Many thanks to all of those who attended.  Thanks also to UK Human Rights Blog for reposting my post yesterday about the Protection of Freedoms Bill, and to those who have commented on Twitter about the seminar (searchable under #11kbw).

This post is an extract from my presentation at 11KBW’s Information Law seminar last night.

The Coalition Government’s Programme for Government, launched on 20th May 2010, made a number of commitments relating to information law, including issues about privacy and data protection. It also stated that the Government would introduce a Freedom Bill. On Friday last week (11th February) the Protection of Freedoms Bill was duly published, with lengthy explanatory notes stating that it implemented 12 specific commitments in the Programme for Government.

As well as extending the Freedom of Information Act (“FOIA”) and giving effect to the hitherto mysterious “right to data” promised in the Programme for Government, the Bill addresses a number of other information law issues:

(i) the taking and retention of DNA samples and profiles and other biometric data;

(ii) use of biometric data in schools;

(iii) regulation of CCTV and other surveillance camera technology;

(iv) the use of RIPA by local authorities;

(v) the employment vetting system, in particular the role of the ISA and the system of CRB checks;

(vi) the retention of information regarding convictions or cautions for offences involving consensual gay sex with a person aged 16 or over; and

(vii) the appointment and tenure of the Information Commissioner.

On the face of it the Bill appears to be a privacy-friendly piece of legislation, with a number of provisions that reduce the amount of information held by public authorities or that limit various manifestations of the “surveillance society”. However, the approach has its limitations.

First, the Bill is something of a rag-bag.  For instance, why has the use of biometric technology in schools been singled out for attention? Is there actually any evidence that the existing DPA framework has not been coping with this adequately? There is little evidence in the Bill of a comprehensive attempt to think through issues about privacy: the impression is more of an attempt to address specific issues that have caused public controversy (e.g. employment vetting), created legal problems in Strasbourg (e.g. DNA retention), or otherwise caught the eye of politicians. Contrast the approach in New Zealand, for instance, where the Law Commission is conducting a comprehensive review of the law of privacy.

A second, related point is that the regulatory framework in this area is becoming increasingly fragmented. The Information Commissioner is responsible for the DPA. Other regulators deal with different aspects of privacy. The Office of the Surveillance Commissioners oversees the use of covert surveillance and covert human intelligence sources. The Interception of Communications Commissioner reviews the interception of communications, the acquisition of communications data and related issues. The Equality and Human Rights Commission also has a role to play in relation to article 8 of the Convention. Now in addition we are to have a Commissioner for the Retention and Use of Biometric Material and a Surveillance Camera Commissioner. A less scattergun and more considered approach to reform in this area might begin by looking at whether the time has come to introduce a Privacy Commissioner (perhaps by expansion of the existing ICO) to bring all of these various functions under a single roof.  See here for discussion along similar lines.

A third point is that the Bill is very much focused on the activities of the public sector as a potential threat to privacy. For instance, the focus is on public sector rather than private operators of CCTV systems. There is nothing that reflects contemporary debates about the use of personal information by credit reference agencies or social networking sites.