RECENT TRIBUNAL RULINGS – RISKS FOR APPELLANTS

July 15th, 2010 by Anya Proops

The Tribunal has recently issued a ruling highlighting the dangers for a public authority if it submits an inadequately reasoned notice of appeal. In Westminster City Council v IC (EA/2010/0096), the Council had submitted a notice of appeal against the Commissioner’s decision notice within the 28 day time limit allowed for under rule 22 of the Tribunal Procedure (First Tier Tribunal) (General Regulatory Chamber) Rules 2009 (“the Rules”). However, the notice of appeal merely asserted that the Commissioner had erred in deciding that the EIR 2004 rather than the FOIA applied to the disputed information. The notice did not contain any grounds for this assertion. Thereafter, the Tribunal ordered the Council to provide grounds for its appeal. The Council was given a week to provide the relevant grounds. The Council missed that deadline. Moreover, it did so in circumstances where it had not notified the Tribunal that it needed an extension of time for lodging the grounds. The Council invited the Tribunal to overlook the three day delay in submitting the grounds. It alleged that the delay was due to staffing difficulties; the need to take legal advice; a failure to understand the tribunal procedures and a failure properly to record the date set by the Tribunal for submission of the grounds. The Tribunal refused to accept these arguments. It held that the Council was a large authority with a specialised in-house FOIA department; that an alleged lack of resources was not a valid excuse and that advice should have been sought at an earlier stage. Accordingly, the Tribunal refused to accept the grounds. There are two lessons to be derived from this ruling. First, an appellant which fails adequately to particularise its case in its notice of appeal or otherwise to follow up the notice promptly with fully reasoned grounds may well end up losing the right of appeal altogether. Second, where there are concerns that a tribunal deadline may be missed, the affected party should always consider notifying the tribunal of that fact and seeking an extension of time.

In a separate development, the Tribunal recently decided in Thackeray v IC (EA/2010/0088) that an appellant would not be allowed to proceed with his appeal in view of his refusal to provide the Tribunal with a postal address. Mr Thackeray had provided an email address in his notice of appeal but refused to provide a postal address, allegedly because he was concerned that he would face harassment if the address was disclosed. Mr Thackeray argued that provision of an email address was sufficient in order to meet the requirements of rule 22(a) and (c) of the Rules. The Tribunal decided that the notice of appeal would be invalid in the absence of the provision of a postal address. The Tribunal took the view that a postal address was a pre-requisite not least in view of: (a) the fact that parties may want, for reasons of security, to deliver documents directly rather than by email; and (b) a postal address would be required to protect the position of the other parties in the event that costs were awarded against the appellant. Unfortunately, neither of these rulings can at present be found on the Tribunal website.

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STRENGTHENED POWERS FOR THE COMMISSIONER?

July 15th, 2010 by James Goudie QC

 

The European Commission has requested the UK to strengthen the powers of its data protection authority so that it complies with the EU’s Data Protection Directive. The Commission request takes the form of a reasoned opinion – the second stage under EU infringement procedures. The UK has two months to inform the Commission of measures taken to ensure full compliance with the Directive.

 

In the Commission’s view data rules in the UK are curtailed in several ways that leave the standard of protection lower than required.  The Commission is concerned about limitations upon the Information Commissioner’s powers, in particular that he cannot monitor whether third countries’ data protection is adequate, assessments which should come before international transfers of personal information, and he can neither perform random checks on people using or processing personal data, nor enforce penalties following the checks. Also the Commission is concerned that Courts in the UK can refuse the right to have personal data rectified or erased, and that the right to compensation for moral damage when personal information is used inappropriately is also restricted.

James Goudie QC

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PREPARATION OF WITNESS STATEMENTS – SOME DOs AND DONTs

July 12th, 2010 by Anya Proops

In a paper which I delivered at the 11KBW Information Law seminar in May 2010, I identified a number of tips designed to assist parties in preparing for hearings before the information tribunal – the paper can be found here. Very recently, the tribunal has handed down a decision which highlights the dangers to a public authority if it fails to ensure that any witness statements generated for the purposes of the tribunal hearing are sufficiently full and illuminating: Metropolitan Police Service v IC (EA/2010/0006).

The MPS case involved a request made to the MPS for disclosure of information as to how much money Croydon Police had spent on paying informants in the preceding three years. The MPS refused disclosure of the requested information relying on a range of exemptions, including s. 30 (criminal investigations) and s. 31 (law enforcement). The Commissioner upheld the applicant’s complaint against the refusal notice. In the course of the appeal to the tribunal, the MPS produced witness statements in support of its case on appeal. However, as it happened, the significant evidence given by these witnesses was only obtained through the process of cross-examination. The tribunal voiced serious concerns about the fact that the MPS had not included such evidence in its witness statements (which had been exchanged some time before the hearing) but had, instead, effectively ambushed the Commissioner by giving such evidence orally at the hearing. The tribunal noted that this was not the first time the MPS had adopted such a course in proceedings before the tribunal and that ‘there may be cost consequences for the MPS in future cases’ (see paragraphs 16-17). What this judgment highlights is the importance of generating witness statements which contain, so far as possible, the core evidential points upon which the authority wishes to rely in advancing its case. If parts of the evidence are highly sensitive, this does not justify withholding the evidence. Instead, it merely means that the authority should structure the witness statements so that any sensitive, confidential elements are dealt with in the closed statements (which are then considered in closed session.

The tribunal went on to hold that the disputed information was in fact exempt from disclosure under s 24 (the national security exemption – as to which see my earlier post below). The point to be noted here is that the case may never have come before the tribunal had the MPS: (a) identified that s. 24 was in issue at a much earlier stage; and (b) been full and frank with the Commissioner as to the reasons why the information was exempt under s. 24. 11KBW’s Ben Hooper was instructed on behalf of the Commissioner.

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SECTION 36 REVISITED – DANGERS FOR THE PUBLIC AUTHORITY

July 12th, 2010 by Anya Proops

Section 36(2) FOIA provides for a number of qualified exemptions, all of which are essentially designed to ensure that disclosures under FOIA do not unduly prejudice the effective conduct of public affairs. The exemptions provided for under section 36(2) are somewhat unusual in that the question whether they are engaged turns upon whether a ‘qualified person’ has given a ‘reasonable opinion’ that disclosure of the particular information would or would be likely to prejudice or inhibit one of the particular matters provided for under s. 36(2) (e.g. it would inhibit the free and frank provision of advice or the free and frank exchange of views). In other words, it is the creation of the reasonable opinion which itself operates to engage the particular s. 36(2) exemption.

The application of s. 36(2) has caused some difficulties in practice. In particular, difficulties have arisen where the public authority has sought to rely on s. 36(2) in circumstances where the reasonable opinion was not in fact generated until sometime after the request was refused by the public authority. In the case of Roberts v IC (EA/2009/0035), the tribunal held that s. 36(2) will not be engaged in these circumstances. This is because, if the information was not in fact exempt at the time the refusal notice was sent out (i.e. because the relevant reasonable opinion was not in existence at that time), it cannot be rendered exempt ex post facto (i.e. as a result of a reasonable opinion having been created after the request has been responded to). See further my paper which examines the Roberts judgment which you can find here.

The restrictive approach to s. 36(2) adopted in Roberts has recently been approved in the case of Chief Constable of Surrey Police v IC (EA/2009/0081). Interestingly, the tribunal in this case went on to highlight the significant dangers for a public authority if it fails to keep a record of the opinion as and when it is reached. Following an earlier decision in University of Central Lancashire v IC (EA/2009/0034), the tribunal in the Chief Constable case effectively held that a public authority will struggle to rely on the exemptions afforded under s. 36(2): (a) if it does not keep a record of the opinion which has been reached and, further, (b) if, in the context of any record which it has made, it fails to identify the particular sub-sections of s. 36(2) which the qualified person has concluded are engaged. Notably, in reaching this conclusion, the tribunal confirmed that it was not the function of the Commissioner to speculate about or forage around for opinions which might have been reached by the qualified person where there was no good evidence that such opinions had in fact been formed at the time the request was being responded to (see in particular paragraphs 54-59 of the decision). 11KBW’s Akhlaq Choudhury appeared on behalf of the Chief Constable.

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APPLICATION OF NATIONAL SECURITY EXEMPTION TO AIRPORT SECURITY INFORMATION

July 12th, 2010 by Anya Proops

As might be expected, FOIA contains a specific exemption designed to safeguard national security, see the exemption provided for under s. 24. In essence, the s. 24 exemption is engaged if the exemption ‘is required for the purposes of safeguarding national security’. Perhaps somewhat surprisingly, the section 24 exemption is a qualified exemption (see s. 2(3) FOIA). This means that, even if the exemption is required in respect of particular information to safeguard national security, the information may still be disclosable on an application of the public interest test provided for under s. 2 FOIA. In Kalman v IC & Department for Transport (EA/2009/0111), the Tribunal was for the first time called upon to consider the substantive application of s. 24 (i.e. how it applied to specific information – cf. Baker v IC & Ors EA/2006/0045, where the tribunal considered the application of the national security exemption in the context of the duty to confirm or deny whether the information was held). The Kalman case involved an application for disclosure of information relating to airport security arrangements. The DfT refused to disclose the information on the basis that there was a real risk that the information, if disclosed, would be exploited by terrorist organisations. The Commissioner largely rejected Mr Kalman’s complaint against the DfT’s decision. Mr Kalman appealed to the Tribunal. There were two issues at stake in the appeal. First, whether s. 24 was engaged in respect of the disputed information and, second, if it was engaged, whether the public interest balance nonetheless weighed in favour of disclosure.

During the course of the hearing, the DfT conceded that some of the disputed information could be disclosed, not least because it was already effectively the stuff of public knowledge. The Tribunal went on to hold that there was other information which ought to have been disclosed for much the same reason. With respect to the remainder of the information, the tribunal accepted that s. 24 was engaged and that the public interest weighed in favour of maintaining the exemption. Notably, the tribunal held that the nature of the risk posed by the disclosure was so serious in this case (i.e. potential significant loss of life due to terrorists exploiting weaknesses in the airport security system) that, even if the risk was relatively slight, there would have to be an extremely strong public interest in disclosure to avoid the information being lawfully withheld. In reaching this conclusion, the tribunal adopted a similar analysis to the one which it had previously adopted in PETA v IC & Oxford University (EA/2009/0076) (case involving the application of the health and safety exemption in a case involving risk of attack by animal extremists).

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DATA PROTECTION IN EUROPE – JUDGMENT IN BAVARIAN BEER

July 2nd, 2010 by Anya Proops

On 29 June 2010, the European Court of Justice handed down an important judgment on how provisions within EU law which permit access to documents held by EU institutions are to be applied where the documents contain third party personal data – European Commission & United Kingdom v Bavarian Lager (Case C-28/08 P). The case involved an application for disclosure of a document held by the European Commission which recorded discussions on the application of certain beer import restrictions within the UK. A number of individuals were identified by name in the document. The application for disclosure was made by Bavarian Lager under EU Regulation 1049/2001 (the Access Regulation). The Access Regulation is designed to facilitate public access to documents held by EU institutions with a view to increasing their transparency and accountability. Importantly, like FOIA, the Access Regulation is, on its face, motive-blind (i.e. it does not require the applicant to establish a legitimate reason for accessing the information). The Commission provided the requested document, save that it redacted the names of certain individuals identified in the document. The key issue which arose in the case was whether, in deciding whether to release the names of the individuals in question, the Commission had been entitled to take into account whether Bavarian Lager had established that it had legitimate interests in receiving this particular data.

The Court of First Instance (now ‘the General Court’) held that: (a) particularly having regard to the motive blind nature of the Access Regulation, the Commission had erred in taking into account Bavarian Lager’s interests in receiving the information and (b) the names should be disclosed. On appeal by the Commission, the ECJ overturned the CFI’s judgment. In summary, the ECJ reached the following conclusions on the appeal:

(1)   the CFI had erred because it had failed to have due regard to the way in which the Access Regulation effectively deferred to provisions contained in other EU legislation, particular Regulation 45/2001 which is specifically concerned with protecting individuals with regard to the processing of their personal data by EU institutions (“the DP Regulation”);

 

(2)   the DP Regulation itself required consideration of the question of whether the applicant had a legitimate interest in receiving the particular personal data;

 

(3)   accordingly, the Commission had not erred when it decided that Bavarian Lager had not established a legitimate interest in receiving the personal data contained in the documents;

 

(4)   the data had been lawfully withheld by the Commission.

11KBW’s Jason Coppel appeared on behalf of the United Kingdom.

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PUBLIC SECTOR EARNINGS – MORE INFORMATION

July 2nd, 2010 by Timothy Pitt-Payne QC

The Cabinet Office has now published details of quango employees earning more than £150,000.  The information has been added to the list-  published at the beginning of June – of the highest earning senior civil servants, and the consolidated list is available here.  According to the Cabinet Office website, information has been withheld for 24 individuals:  there is no explanation as to whether this was simply because the individuals objected, or for other reasons. 

Further information about special advisers was published on 10th June, including a list of those earning more than £58,200 a year (sadly,  Tamzin Lightwater does not appear).

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WATCH THIS SPACE

June 30th, 2010 by Timothy Pitt-Payne QC

The Coalition’s Programme for Government contains a great deal that is of interest to information lawyers: see here.  But when and how will any of this be given legislative effect?

The Queen’s Speech was delivered on 25th May 2010. The website of the Prime Minister’s office gives a list of the proposed Bills , with further information about each one. Three of the proposed Bills have potential implications for information law.

(i) The Public Bodies (Reform) Bill will enhance the transparency and accountability of quangos: though it is not clear as yet whether enhanced information access rights will play a role in this.

(ii) The Decentralisation and Localism Bill will (among other matters) require public bodies to publish online the job titles of every member of staff and the salaries and expenses of senior officials.

(iii) The Freedom (Great Repeal) Bill is intended to cover a wide range of subjects, to be announced in due course: it may include an extension to the scope of FOIA, and also various provisions in relation privacy (e.g. relating to CCTV cameras, and the DNA database).

Of these Bills, it is the third that is likely to be much the most significant. 

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UNFINISHED BUSINESS

June 30th, 2010 by Timothy Pitt-Payne QC

Various changes were made to FOIA by the Constitutional Reform and Governance Act 2010, which was passed during the “wash up” at the end of the last Parliament.  See section 46 of and Schedule 7 to the Act. In particular:

• The exemption in section 37(1) of FOIA (relating to communications with the Sovereign and with other members of the Royal Family) was extended. In relation to the Sovereign and the heir to the Throne, the exemption was made absolute .

• The period at which a record becomes a “historical record” was altered (this is often referred to as the “30 year rule”). Under FOIA as originally enacted, a record became a historical record at the end of 30 years beginning with the year following that in which it was created: see FOIA section 62(1). Information contained in a historical record could be exempt by virtue of sections 28, 30(1), 32, 33, 35, 36, 37(1)(a), 42 or 43: see FOIA section 63(1). Under the 2010 Act the period of 30 years is reduced to 20 years . Provision is made for a 10 year transitional period in introducing this change . However, in respect of section 36 (so far as it relates to certain information concerning Northern Ireland), section 28, or section 43, the time after which these exemptions can no longer be relied upon will remain 30 years not 20 years .

The reforms to the 30 year rule followed the Dacre Review, published on 29th January 2009 (see our earlier post here).

As yet it remains unclear when, or whether, these amendments will be brought into force.  This is a significant piece of unfinished business left over from the last Parliament.

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LATE EXEMPTIONS – THE LATEST TWIST

June 30th, 2010 by Anya Proops

The question of whether a public authority can seek to rely on exemptions at a late stage in proceedings is one which arises in many tribunal appeals. Certainly, it is not at all unusual for a public authority to argue before the tribunal that it now wants to rely on exemptions which have never previously been identified. Historically, the Tribunal has taken the view that it has a discretion to refuse late reliance on exemptions and, in practice, it has tended to refuse late reliance save where there are exceptional circumstances (see further earlier paper on this issue which you can find here and see also an earlier post here). However, one tribunal has very recently taken a rather different view of the matter. In particular in Home Office v IC (EA/2010/0011), the tribunal held that in fact it had no discretion to refuse late reliance, particularly in view of the way in which the exemptions had been provided for under FOIA. This departure from tribunal orthodoxy is no doubt going result in a significant amount of debate, not least because there are now competing tribunal decisions on the issue of late exemptions. It may be that the matter will be resolved as and when the appeal in the case of DEFRA v IC & Birkett is heard in the Upper Tribunal. However, this remains to be seen. So watch this space.

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