Says the White Rabbit in Alice in Wonderland, “Oh my furry whiskers, I’m late, I’m late, I’m late!” Although the application of FOIA may sometimes feel like Wonderland, the feeling it induces is normally more akin to turning up unexpectedly at the Mad Hatter’s Tea Party (although attributing FTT judicial figures to the characters of the Mad Hatter and the Dormouse is beyond me). But one thing that has, since Birkett v DEFRA [2011] EWCA Civ 1606, not generally proved very controversial is the question of late reliance on exemptions; the White Rabbit need have little fear. Birkett made clear that late (usually after the DN and in the course of litigation before the FTT) reliance on substantive exemptions is permissible, subject to case management powers, under the EIR. The unappealed equivalent decision under FOIA, Information Commissioner v Home Office [2011] UKUT 17 (AAC), has generally been assumed to be correct.

However, there is a generous ‘but’ involved, about which lawyers are second only to Sir Mixlot in their appreciation. Can one rely late upon an exemption in Part I of FOIA? There has been a conflict of FTT and Upper Tribunal authority on the point. Independent Police Complaints Commission v Information Commissioner [2012] 1 Info LR 427 had held that there could be late reliance on section 12. The Upper Tribunal in All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner & Ministry of Defence [2011] UKUT 153 (AAC); [2011] 2 Info LR 75 expressed the clear, if obiter, view that section 12 was not in the same position as substantive FOIA Part II exemptions because it had a different purpose; section 12 is not about the nature of the information but the effect on the public authority of having to deal with the request. The scheme of FOIA was likely to be distorted, the Upper Tribunal held, if the authority could suddenly rely on section 12 after already having carried out the search and engaged with the requestor: at [45]-[47]. The APPGER approach was accepted by the FTT in Sittampalam v Information Commissioner & BBC [2011] 2 Info LR 195. There was at least a school of thought that the APPGER logic ought also to apply to section 14 (which, as was explained in Dransfield, is not properly an exemption at all: at [10]-[11]). Then, in Department for Education v Information Commissioner & McInerney (EA/2013/0270), Judge Warren firmly concluded that section 14 (and by implication section 12) could be relied upon late. I suggested at the time that the conflict of authority on the point might require appellate resolution, and Ms McInerney appealed on that basis (in partial reliance, it appears, on my blogpost: see at [22] of the UT judgment).

 The appeal in McInerney v Information Commissioner and the Department for Education [2015] UKUT 0047 (AAC) has now been determined by Judge Jacobs (who heard the Birkett and Home Office cases). It has definitively resolved that a public authority may rely on sections 12 or 14 for the first time before the FTT, subject to the case management powers of the FTT. Although the judgment of the Upper Tribunal is fairly lengthy, the key part of the analysis is fairly brief. Judge Jacobs considered the principles derived from Birkett overtook the reasoning in APPGER, that the discussion of principle in his Home Office decision applied equally to the Part I exemptions, that section 17(1) did not prevent late reliance, that there was nothing in section 12 to require a different answer, and that late reliance may be forced on a public authority for good reasons (such as the instant appeal): at [33]-[41]. The Upper Tribunal did not consider it necessary to review the various FTT decisions. If section 12 is relied upon before the FTT for the first time, it will be the FTT which has to review the reasonableness of the estimate: at [40]. The Upper Tribunal considered that the answer on section 14 followed naturally from the answer on section 12.

 The position now at least has the benefit of consistency. Requestors will doubtless continue to be extremely frustrated by public authorities who appear to change their position at the last moment (usually when lawyers have become involved), and the FTT does not appear to have been often exercising its powers to restrict late reliance, or to punish incorrect late reliance in costs. However, if an exemption is relied upon correctly, reaching the correct answer is important. Whiskers may soothed, pocket watches stowed away, and lateness need rarely be an issue.

 Also of some practical interest will be the discussion of Judge Jacobs on the interaction of sections 14 and 16. It might be thought difficult to see how the section 16 duty could really apply to a vexatious request (“we advise you to submit a request which is not vexatious” perhaps?). Judge Jacobs accepted at [55] that a request should not have to be dissected to see if it can be severed, because that would undermine the purpose of section 14, but that section 16 cannot be ignored. The circumstances might allow a public authority to extract one part to create a non-vexatious request: at [56]. This is a little hard to understand; it might be thought the better analysis would be that properly construed, that one part was not a vexatious request, and it is not clear whether section 16 adds much. He added that it is not for the FTT to apply section 16 to assist a requestor – only the public authority is obliged to do so: at [57]-[58].

 Andrew Sharland appeared for the DfE and Robin Hopkins appeared for the ICO.

 Christopher Knight

The Ministry of Justice has today announced the new President of the General Regulatory Chamber to be Judge Peter Lane. He will take up his post on 15 December, replacing Judge Nicholas Warren, who is retiring.

As President of the GRC, Judge Lane will doubtless hear a fair share of Information Rights appeals – as his predecessor did – and will have some familiarity with the regime from his time in the last four years or so sitting in the Upper Tribunal.

Panopticon wishes Judge Lane all the best in his new role (in which guise many Panopticonners will doubtless see more of him), and Judge Warren all the best in his retirement.

Christopher Knight

Hot of the press – Readers of this blog will be aware of the wonderful saga involving Mr Kennedy and his tireless quest to gain access to information held by the Charity Commission. I have been told today that, having lost his appeal before the Supreme Court (see the relevant Panopticon post here), Mr Kennedy is now seeking to bring the case before the European Court of Human Rights. An application has been lodged and Mr Kennedy is now awaiting a decision on admissibility. All of which means that we may yet see the Strasbourg Court having its say on the vexed question of whether s. 32 FOIA, as currently framed, is compatible with the Art 10 right to receive information. For further updates, watch this space.

Anya Proops

Back in May 2014 the Secretary of State for Communities and Local Government issued the Local Government Transparency Code, and I briefly blogged about that here.

Now, an updated version of the Code dated October 2014 has been issued. Unaccountably, its publication appears to have been overshadowed by Kevin Pietersen’s autobiography, but it might perhaps be unfair to engage in a game of parallels, identifying for example who the “Big Cheese” would be at DCLG. The October 2014 Code is materially the same as its May predecessor (but fully replaces it) and it may assist if my earlier comments are set out again here (with amendments and updated cross-references).

The Code is issued in exercise of the Secretary of State’s powers under section 2 of the Local Government, Planning and Land Act 1980 to issue a Code of Recommended Practice as to the publication of information by local authorities about the discharge of their functions and other matters which he considers to be related.

The Code sets out in some detail in Part 2 the type of information held by local authorities which must be published (some of it annually). This is designed to replicate the requirements prescribed in the Local Government (Transparency) (Descriptions of Information) (England) Order 2014. Part 3 sets out the information which, in the view of the Secretary of State, ought to be published. A helpful Annex A provides the details in tabular form.

Paragraph 17 of the Code provides that: “Where information would otherwise fall within one of the exemptions from disclosure under the Freedom of Information Act 2000, the Environmental Information Regulations 2004, the Infrastructure for Spatial Information in the European Community Regulations 2009 or falls within Schedule 12A to the Local Government Act 1972 then it is in the discretion of the local authority whether or not to rely on that exemption or publish the data.” There is therefore no attempt to override the FOIA exemptions. But where a qualified exemption applies, the appearance of the requested information in one of the categories set out in the Code will have a role (possibly a significant role) in establishing the public interest in support of disclosure. Of course, where the Secretary of State as required – in Part 2 – information to be published, it should be published by the local authority. Any reliance on a qualified exemption will be doomed to fail. Information falling within the scope of Part 3 is also likely to face an uphill struggle to be withheld under FOIA/EIR, but it will be context dependent.

The main substantive difference between the May and October Codes is that the new one has added three datasets to the list of information which must be published: namely information about how the authority delivers waste services, use the parking revenue it collects and tackles fraud.

One development between May and October is that the DCLG have obviously been faced with a barrage of questions from concerned Councils. In an attempt to assist, DCLG has also published an accompanying FAQ Guide to the Code, which may help those attempting to practically apply the new Code with what the DCLG was trying to do in particular circumstances.

Christopher Knight

The question of how far tribunals should go in terms of allowing evidence and submissions to be dealt with on a closed basis in FOIA appeals is one that looms large for all FOIA practitioners. Judge Nicolas Warren, the President of the First-Tier Tribunal (Information Rights) has now drafted and circulated to all FTT judges a checklist for dealing with closed proceedings under rule 14 of the Tribunal rules. Not being one to keep the public in the dark about such judicial guidance, Judge Warren has kindly agreed to the checklist being reproduced in full on the blog – see further below:

General Regulatory Chamber (Information Rights) – Rule 14 Check list

1. Has Rule 14 been correctly applied so far?  Should any closed material be made open?
2. Is it necessary to hold part of the hearing in closed or do the closed written submissions suffice?
3. Explain purpose of closed hearing to requestor.
4. Ask requestor if there are any questions he or she particularly wants the Tribunal to put.  If requestor legally represented then the questions should be in writing.
5. Is the hearing recorded?  If so, the closed session must also be recorded but separately and with the cd sealed and a note that it must not be opened with the permission of the Tribunal or the UT.
6. During the closed session, keep a running note of anything new that is said which could properly be said in open session.
7. At the conclusion of the closed session, agree with the representatives what is to be said to the requestor on return to open by way of:- (a) a gist of what must remain closed. (b)anything new that could have been said in open.
8. In draft decision include an account of the procedure adopted and indicate what use if any was made of the closed material.

It is clear that this guidance is intended to increase the rigour and care with which tribunals approach the issue of closed hearings and, hence, to intensify compliance with natural justice principles. For further discussion of closed procedures in the information tribunal see further my previous posts on the Court of Appeal case of Browning here and here.

Anya Proops

The Information Commissioner has today published his keenly anticipated guidance on ‘Data Protection and Journalism: A Guide for the Media’.  The guidance has been published following a lengthy consultative process and in response to a recommendation made in the Leveson report. The guidance has much to say on the controversial subject of the journalistic exemption provided for under s. 32 DPA. As readers of this blog will know, section 32 largely disapplies the various obligations provided for under the DPA where the conditions provided for in s. 32(1) are met:

‘32(1)     Personal data which are processed only for the special purposes [i.e. the purposes of journalism, literature and art] are exempt from any provision to which this subsection relates if—

(a)     the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material,

(b)     the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and

(c)     the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes.’

The guidance analyses these various conditions at some length. Below are some edited highlights, along with some initial commentary.

• Meaning of ‘Journalism’ – The guidance concludes that, following the ECJ’s judgment in the Satamedia case (Case C-73/07), the concept of journalism should be ‘interpreted broadly ’. Thus, ‘It will clearly cover all output on news, current affairs, consumer affairs or sport. Taken together with art and literature, we consider it is likely to cover everything published in a newspaper or magazine, or broadcast on radio or television – in other words, the entire output of the print and broadcast media, with the exception of paid-for advertising’(p. 29). However, it will also cover the activities of citizen bloggers, insofar as they relate to public interest journalism (p. 30). Moreover ‘non-media organisations may be able to invoke the exemption. If their purpose in processing the specific information is to publish information, opinions or ideas for general public consumption, this will count as a journalistic purpose – even if they are not professional journalists and the publication forms part of a wider campaign to promote a particular cause or achieve a particular objective. However, the information must be used only for publication, and not for the organisation’s other purposes’(p. 30).

• Processing data ‘only for’ special purposes – The guidance effectively assumes that traditional media organisations will typically meet this requirement in respect of their data processing activities. So far as non-media organisations are concerned, it posits that they will not be able to rely on the s. 32 exemption if, in addition to processing the data for journalistic purposes, the data ‘are also used for the organisation’s other purposes – eg in political lobbying or in fundraising campaigns – the exemption will not apply’ (p. 31). [Note – this obviously begs the question of whether there is any neat dividing line between campaign-led journalism (which the Commissioner seems to think falls within the scope of s. 32) and ‘political lobbying’. It also begs the question whether traditional media organisations may themselves be engaged in political lobbying as an integral part of their publication activities].

• ‘With a view to publication’ – The position adopted in the guidance is that, provided that the data processing is being undertaken with ‘the ultimate aim of publishing a story’, the s. 32(1)(a) requirement is fulfilled. The guidance goes on to state ‘In short, this means that the exemption can potentially cover any information collected, created or retained as part of a journalist’s day-to-day activities, both before and after publication. However, the exemption cannot apply to anything that is not an integral part of the newsgathering and editorial process’ (p. 31). [Note – as will be apparent the guidance seems to embody a very broad approach to s. 32(1)(a)].

• Balancing rights – The guidance repeatedly asserts that, when handling personal data in the media context, decision-makers should be weighing the public interest in publication/pursuing the story as against the privacy rights of affected data subjects. Thus, for example, on the subject of publication, the guidance states ‘Publication is likely either to be fair and to comply with the DPA or to fall within the journalism exemption if it can be shown that someone at an appropriate level considered whether the public interest in publication outweighed individual privacy in the circumstances of the case and can give good reasons for this view when challenged’ (p. 13, emphasis added). When specifically discussing the s. 32 exemption, the guidance states: ‘You must reasonably believe publication is in the public interest – and that the public interest justifies the extent of the intrusion into private life. You must also reasonably believe that compliance with the relevant provision is incompatible with journalism. In other words, it must be impossible to comply and fulfil your journalistic purpose, or unreasonable to comply in light of your journalistic aims, having balanced the public interest in journalism against the effect upon privacy rights.’ (p. 27 emphasis added and see pp. 33-34). The guidance invites a similar balancing exercise to be conducted as and when journalists/editors are deciding whether or not to notify a data subject about the fact that their data is being collected or, further, whether or not to collect data using covert means (p. 10). [Note – this analysis is likely to be regarded as particularly controversial. This is because it arguably marks a significant departure from the language of the s. 32 exemption, which on its face seems to presuppose that the focus of the analysis is simply on whether publication is in the public interest, with no balancing of that interest as against the privacy rights of data subjects].

• Responsibility for applying the public interest test – That said the guidance repeatedly states that, so far as the s. 32 exemption is concerned, it is journalists/editors and not the Commissioner who are responsible for deciding what is ‘in the public interest’. The Commissioner sees his role as testing whether the decisions of the relevant journalist/editor is reasonable, albeit that the guidance also states that he will not ‘disregard [the media’s views] lightly’ (p. 35).

• ‘Compliance incompatible with the special purposes’ – In his original draft guidance, the Commissioner suggested that, in order to invoke s. 32, it would have to be established that compliance with the provisions of the DPA would make it impossible to fulfil the journalistic purpose (see p. 30: ‘you must decide that the provision in question would stop you from doing your job’). The final version of the guidance states that, in order for reliance to be placed on the s. 32 exemption: ‘…it must be impossible to comply and fulfil your journalistic purpose, or unreasonable to comply in light of your journalistic aims, having balanced the public interest in journalism against the effect upon privacy rights’ (p. 27, emphasis added). The underlined section of the citation indicates a more flexible test than the ‘you cannot do your job’ test suggested in the draft guidance (see further p. 37).

The guidance also contains the following noteworthy conclusions:

• Notification – Where media organisations are gathering data about individuals they should as a matter of course notify them of this fact, unless this is not practicable or it would undermine the journalistic activity. In deciding whether or not to notify, consideration should be given to the level of privacy intrusion resulting from the processing (pp. 9-10).

• Covert methods – Covert methods should be used only where this is justified in the public interest, taking into account the adverse effects on the individual’s privacy. Even if covert methods have been used, once the data has been obtained the issue of notifying the data subject should be considered (p. 10).

• Data retention – Data should be retained for no longer than is necessary and, any data which is retained, should be regularly reviewed in order to assess its utility. ‘Contact details and background research are a vital journalistic resource, and you are likely to want to keep them for long periods or indefinitely, even if there is no specific story in mind at present. But you are ‘processing’ personal data just by keeping it, so you must comply with the DPA’ (p. 11). [This latter conclusion represents an important concession by the Commissioner that, in the context of journalism, data archives are likely to have an ongoing utility, even if they are not being actively deployed in the context of a current story].

• Confidential sources – The guidance makes clear that the subject access regime cannot be used to gain access to information identifying confidential journalistic sources. Indeed, it confirms that disclosure of such information is itself likely to amount to a breach of the DPA ‘in many cases’ (p. 16).

• Section 55 offences– The guidance states that, where you knowingly or recklessly obtain or disclose personal data without the consent of the relevant data controller, you may be committing a criminal offence under s. 55 DPA, even if your activities fall within the scope of s. 32. This is because the public interest defence available in respect of s. 55 offences holds you to a higher standard than the standard imposed under s. 32 (p. 10).

Finally, I should add that many of the principles identified in the guidance are likely to be subject to scrutiny and debate in the context of the ongoing Steinmetz v Global Witness case (discussed here), which is now before the Commissioner .

Anya Proops