Closed material and closed proceedings in FOIA litigation: authoritative guidance from the Upper Tribunal

May 22nd, 2013 by Robin Hopkins

Closed material and closed proceedings are commonplace in FOIA litigation. As regards the disputed information itself, the need is self-explanatory. But what about closed material other than the disputed information, such as evidence in support of a public authority’s reliance on exemptions? To what extent is it appropriate for FOIA proceedings to be determined by reference to such material which the requester is unable to see and challenge? Also, if the public authority’s concern is with public disclosure of such material, is the solution to be found in a readiness to bring the requester’s legal representatives into a ‘confidentiality ring’? In other words, do natural and open justice demand that requesters’ legal representatives be allowed to attend the closed part of the hearing and see the closed material?

These questions are fundamental to the fair and thorough determination of disputes about the rights conferred by FOIA. In a very important recent decision, the Upper Tribunal has given its answers.

The case

Browning v IC and Department for Business, Innovation & Skills (GIA 25/12) was heard by Mr Justice Charles, Mr Justice Mitting and Upper Tribunal (UT) Judge Andrew Bartlett QC. The decision is available here: Browning GIA 25 12.

The case concerned a request from a Bloomberg journalist for information from the Export Control Organisation (for which DBIS is the relevant public authority) in connection with licences issued for the exporting to Iran of “controlled goods” – explained as “mainly military, dual use (potentially military), equipment designed for torture or repression or sources of radio-activity”. DBIS relied on sections 41 and 43 FOIA. The IC found for the requester but, upon sight of further evidence, supported DBIS’ appeal before the First-Tier Tribunal (FTT). In decision EA/2011/0044, the FTT allowed DBIS’ appeal. In reaching its decision the FTT considered closed material and part of the hearing was closed.

The closed material comprised not only the disputed information, but DBIS’ evidence supporting its reliance on the exemptions. In particular, DBIS had written to applicants for such licences to obtain their views about disclosure, and it relied on their (confidential) responses in closed. Four or five of the 92 responses had been provided to Mr Browning in an anonymised, re-typed and redacted form prior to the hearing before the FTT, so as to illuminate to a degree the nature of the closed evidence being relied upon.

Mr Browning had not asked for more of the closed evidence to be made available to him in that way. Rather, a without-notice application was made at the FTT hearing for his legal representative(s) to see the closed material and attend the closed hearing in order to put the case on his behalf. The FTT refused the application. It summarised the approach taken in other FTT decisions, whereby such applications “will succeed only if there are exceptional circumstances specific to the appeal… The use of special counsel, as an alternative, is likewise exceptional.”

Mr Browning’s first ground of appeal before the UT was against the FTT’s refusal of that application.

Reliance on closed material

Mr Browning understandably contended that “the principles of open and natural justice and of fairness require, or strongly support the conclusion, that their application in the context of adversarial civil litigation should be departed from to the least extent possible… in the determination of an appeal to the FTT under FOIA” (para 48).

The UT said, however, that those principles admit of some context-sensitive flexibility. FOIA appeals are materially dissimilar from criminal and adversarial civil litigation. At paras 59-60, it said that:

“FOIA and its underlying purposes mean that, when a disputed request for information reaches the First-tier Tribunal pursuant to the statutory scheme put in place by FOIA, the relevant background and landscape of rights, interests and duties is materially different from that which obtains in criminal and civil litigation in the courts… It follows from the points we have made about the purposes of FOIA that, in our view, to characterise the First–tier Tribunal’s function, within the statutory scheme established by FOIA, as or equating to ordinary civil and therefore adversarial litigation because it is deciding a dispute between the parties before it, or deciding whether to vindicate a right claimed by the applicant, is an inadequate and inaccurate description; rather, its function is investigatory and is to see that FOIA is properly applied to the circumstances. This involves consideration, in the manner provided by FOIA, of the right which is given by s. 1(1) in pursuance of the interests served by the release of information, together with the assessment of countervailing public and private interests in accordance with the terms of the exemptions.”

Closed proceedings are thus intrinsic to FOIA litigation. The UT has confirmed the right to rely on closed evidence other than the disputed information (though see below for procedural caveats). See paras 59-60:

“(i) it is clear that Parliament did not intend that there should be such a “back door” route to information in respect of which a FOIA exemption could be claimed.  It follows that there is a need to protect it from disclosure to a requester that is equivalent to that which exists in respect of the information he or she has requested, and

(ii) it is also apparent that Parliament did not intend to spawn disproportionate and satellite disputes on whether an exemption applies to information put forward to establish a claimed exemption, and this is a reason why it chose an investigatory appeal process to a tribunal comprising persons with relevant expertise.”

The UT concluded that (para 71):

“The exercise by the First-tier Tribunal of its discretion under the 2009 Rules to consider closed material and to hold a closed hearing is not governed directly, or by analogy, by the approach taken by the civil courts to the disclosure of relevant material and we therefore reject Mr Browning’s central argument that it should be exercised to achieve a result that departs to the least extent possible from the approach taken in adversarial civil litigation.”

Applications for representatives to see closed material/attend closed hearings

The UT reviewed the jurisprudence on this issue (which has not favoured the granting of such applications) and discussed the problems that would arise if such an application were granted. There is a risk of accidental disclosure. It can be difficult for the representative to police neat lines between what he can and cannot say to his client or in open session. More generally, there would be very problematic limitations on taking instructions, such that (para 76) “the value added of the approach over that of suggesting lines of enquiry to the First-tier Tribunal and the Information Commissioner is likely to be limited to what the representative knows of his client’s position before he takes part in the closed process.” In any event, what to do about unrepresented requesters?

At paras 80-81, the UT set outs its conclusions:

“… a First-tier Tribunal should not direct that a representative of an excluded party should see closed material or attend a closed hearing unless it has concluded that, if it does not does so: it cannot carry out its investigatory function of considering and testing the closed material and give appropriate reasons for its decision on a sufficiently informed basis and so fairly and effectively in the given case having regard to the competing rights and interests involved.

81.          We also acknowledge and confirm that this approach will lead to the result that it will only be in exceptional and so rare cases that a representative of a party seeking information under FOIA will be permitted to see closed material and attend at a closed part of the hearing.  Indeed, we have not been able to identify circumstances in which we think that this would be appropriate, but acknowledge that it cannot be said that this should never be done.”

It also considered that Article 6 ECHR was not engaged, and that its engagement would not dislodge the above conclusions in any event.

Mr Browning’s first ground of appeal therefore failed. The UT did, however, have more to say on how to approach reliance on closed material. All parties involved in FOIA litigation should pay careful attention to these points.

The Practice Note and other observations on the use of closed material

The UT had misgivings about the limited extent of the anonymised closed material which had been made available to Mr Browning on an open basis. It noted, however, that this limited disclosure had for a vigorous and partially successful challenging of the evidence by the requester’s counsel. “During the period leading up to the hearing and when it began Mr Browning and his legal representatives had ample opportunity to seek by way of agreement or further direction additional information about the extent, content and nature of the Closed Exemption Evidence and they did not do so”.

Strictly speaking, the UT has declined to issue general guidance on the approach to allowing reliance on closed material at FTT level, but it has made a number of important points.

It observed (para 42) that “the need to avoid disclosure of the requested information is an obvious and good reason for there being closed material and a closed hearing, but in some cases this may not be the only reason that justifies a First-tier Tribunal considering closed material and holding a closed hearing”.

The FTT’s Practice Note on Closed Material in Information Rights Cases (issued in May 2012) was also considered. The UT said this (para 17):

“This does not have the force of a rule of law or a practice direction, and this judgment should not be taken as comprehensively endorsing it, but we do consider that it is something that First-tier Tribunals should take into account and, if they do not apply it in a given case, they should explain why they have not done so.  In particular, in our judgment, if no written and reasoned application for there to be closed material and a closed hearing has been made pursuant to that Practice Note, First–tier Tribunals should explain why they have proceeded without one.”

It added this on the FTT’s approach to closed material in general (para 18):

“More generally, we comment that First-tier Tribunals should consider and give appropriately detailed directions and reasons (i) setting out the nature and subject matter of any closed material and hearing, (ii) why they have accepted that they should consider evidence advanced by a public authority (or anyone else) and argument on a closed basis, and (iii) why further information relating to their content has not been provided.  If this is done it will provide clarity as to what will be, and has been, considered on a closed basis and why, for example, evidence provided to support an exemption has been so considered and more of it, or about it, has not been disclosed.”

Finally, the UT was clear as to the ongoing nature of these duties (para 39): “throughout the proceedings a tribunal carrying out its investigatory function must keep under review whether information about closed material should be provided to an excluded party in, for example, an anonymised form”.

Clearly, all FTT proceedings involving closed should be conducted in light of the points made above.

Other grounds of appeal: sections 41 and 43 of FOIA

Mr Browning’s other grounds of appeal also failed before the UT. Some of those grounds concerned the FTT’s findings on section 41 of FOIA (actionable breach of confidence). Mr Browning that the disputed information had not been “obtained” from outside the public authority, that the name of a licence applicant does not have the necessary quality of confidence, and that applicants had not imparted licence information in circumstances importing an obligation of confidence. All of those grounds of appeal were dismissed.

More broadly, on the approach to section 41 of FOIA, the UT has said this (para 30):

“It was also common ground before the FTT, and not an issue that was raised or argued before us, that the consideration of whether disclosure would constitute a breach of confidence that is “actionable” incorporates all parts of the breach of confidence action, including the absence of a public interest defence.  This accords with existing First-tier Tribunal decisions (see for example, Gurry on Breach of Confidence 2nd edit para 13.130 and in particular HCFC v IC & Guardian News and Media EA 2009/0036).  On that approach, the point that s. 41 is an absolute exemption is not as significant as it might first appear because within it there is a need to weigh the competing public interests, and as pointed out in a footnote to that paragraph in Gurry, the reverse approach to weighing the public interest in respect of a breach of confidence to that set out in s. 2 of FOIA in respect of a qualified exemption, if anything, makes it easier to establish the s. 41 exemption but is unlikely to become a determinative factor.”

Mr Browning also challenged the FTT’s conclusions on the detriment likely to arise from disclosure and argued that it had not identified the prejudice to commercial interests or the likelihood of that prejudice (for section 43(2) FOIA purposes).

The UT did have misgivings about the FTT’s comments about ‘chilling effect’ arguments on the evidence, but found that it there had been an error of law, it was at most a makeweight finding which did not suffice to overturn the FTT’s decision.

Ben Hooper acted for the Information Commissioner.

Robin Hopkins

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Workfare and the First-tier Tribunal

May 20th, 2013 by Timothy Pitt-Payne QC

Employment programmes for welfare recipients – often referred to as “workfare” – are highly controversial.  In Department for Work and Pensions v Information Commissioner and Zola (EA/2012/0207,0232 and 0233), the First-tier Tribunal considered three FOIA requests for information about companies participating in such programmes.  The Tribunal ordered disclosure, rejecting the Department’s reliance on the exemptions in FOIA section 43(2) (prejudice to commercial interests) and section 36(2)(c) (prejudice to the effect conduct of public affairs).

The case related to three programmes run by the DWP:  Mandatory Work Activity (MWA); Work Experience (WE); and the Work Programme (WP).  MWA provided short term work placements in the local community, usually with a charitable organisation.  WE provided placements for 18-21 year old Jobseekers’ Allowance claimants.  WP was aimed at those considered to be at risk of becoming long-term unemployed.  For each programme, the Government entered into contracts with providers, and these (or their sub-contractors) in turn arranged work placements with various organisations.  The three requests sought information as to the identity of organisations that had hosted placements.

The Information Commissioner required the DWP to provide the requested information.

The Commissioner rejected the DWP’s reliance on section 43(2), holding that the exemption was not engaged.  The Commissioner considered that the risk of providers withdrawing from the scheme as a result of disclosure would have been capable of engaging section 43(2), but that on the evidence any risk of this nature was speculative.  Any harm consisting of increased welfare costs was financial rather than commercial in nature, and did not engage section 43(2).  The Commissioner noted the existence of campaign groups and websites opposed to workfare, but said that the extent to which these had influenced any past withdrawals from the scheme was unclear.  In order to establish that section 43(2) was engaged, the Commissioner considered that the DWP would have had to indicate how many organisations would have been likely to withdraw as a result of disclosure, and what it would have cost to find alternative work placements; this had not been done.

The Commissioner also rejected the DWP’s reliance on section 36(2)(c).  Although the exemption was engaged, on the basis of the opinion of the qualified person (the then Minister for Employment), the public interest in maintaining the exemption was outweighed by the public interest in disclosure.

Before the Tribunal, the DWP disputed the Commissioner’s categorisation of higher welfare and related costs as being “financial” rather than “commercial” in nature.  It contended that the Commissioner had required an undue level of detail from the DWP in support of its claim that section 43(2) was engaged.  In relation to section 36(2)(c), the DWP argued that disclosure would have been likely to lead to the collapse of the MWA scheme.  As to the public interest in disclosure, the DWP contended that this had been greatly over-estimated by the Commissioner: there was already information in the public domain as to the kinds of employers that were participating; there was little public interest in knowing which specific organisations were taking part within any particular area.

The DWP placed evidence before the Tribunal about a survey carried out by the DWP in October and November 2012.  The DWP had sought information from contractors, their sub-contractors, and organisations that had hosted placements; the DWP had asked for information about the perceived impact of public awareness of their involvement in the programmes.  In March 2013 some organisations had provided further information in support of the DWP’s stance of not releasing the names of placement hosts, and this was also put before the Tribunal by the DWP.

The Tribunal’s conclusion was that section 43(2) was not engaged; and that, although section 36(2)(c) was engaged, the public interest balance favoured disclosure.  The Tribunal would have reached the same conclusion as to the public interest under section 43(2), had that exemption been engaged.

In relation to section 43(2), any prejudice relating to increased cost of welfare payments was held to be financial rather than commercial in nature, and irrelevant to the exemption.  The Tribunal therefore focused instead on the risk that disclosure would lead participating organisations to withdraw from the schemes.  It referred to the “Boycott Workface” website, and various news articles, concluding that media coverage and comment were inevitable and that there was always an inherent risk that participants would be identified.  At the time of the requests there were some 200 names of participating organisations already in the public domain.  There had not been a “media frenzy” as a result of publication of these names.  At most, seven of the 200 names had come in for criticism which had perhaps resulted, or could have resulted, in their withdrawal; but the evidence even in these cases was unpersuasive.  The speculative views elicited by the DWP’s survey carried considerably less weight than these real-life examples of what had actually happened where specific organisations had been named.

In relation to section 36(2)(c), the public interest in disclosure outweighed any interest in maintaining the exemption.  The schemes were controversial; it was important for the public to see and examine the schemes and how participants performed.

Overall, the case is an example of the Tribunal’s readiness to scrutinise closely any reliance on section 43(2).  Speculation about what might happen following disclosure – even when presented in the form of a survey – carried little weight.  The Tribunal was much more interested in the specific examples of providers that had been named in the past; and in these cases, the Tribunal considered that the evidence did not support the DWP’s position.  Overall, the Tribunal’s approach seems to be that private sector bodies that become involved in a controversial Government programme can expect to be exposed to a degree of scrutiny and criticism; and the Tribunal is reluctant to use this as a basis for protecting those organisations from the effect of disclosure under FOIA.

Timothy Pitt-Payne QC

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Damages under section 13 DPA: Court of Appeal’s judgment in Halliday

May 17th, 2013 by Robin Hopkins

I blogged a while ago about the ex tempore judgment from the Court of Appeal in a potentially groundbreaking case on damages under section 13 of the DPA, namely Halliday v Creation Consumer Finance [2013] EWCA Civ 333. The point of potential importance was that ‘nominal damages’ appeared to suffice for the purposes of section 13(1), thereby opening up section 13(2). In short, the point is that claimants under the DPA cannot be compensated for distress unless they have also suffered financial harm. A ‘nominal damages’ approach to the concept of financial harm threatened to make the DPA’s compensation regime dramatically more claimant-friendly.

The Court of Appeal’s full judgment is now available. As pointed out on Jon Baines’ blog, ground has not been broken: the ‘nominal damages’ point was a concession by the defendant rather than a determination by the Court. See paragraph 3 of the judgment of Lady Justice Arden:

“… this issue, which was the main issue of the proposed appeal to this court, is now academic as the respondent, CCF, concedes an award of nominal damages is “damage” for the purposes of the Directive and for the purposes of section 13(2) of the Data Protection Act 1998.”

Other potentially important points have also fallen somewhat flat. The question of whether UK law provided an adequate remedy for a breach of a right conferred by a European Directive fell away on the facts (“proof fell short in relation to the question of damage to reputation and credit”), while the provision for sanctions under Article 24 of Directive 95/46/EC was neither directly enforceable to Mr Halliday nor of assistance to him.

Still, the judgment is not without its notable points.

One is the recognition that compensation for harm suffered is a distinct matter from penalties for wrongdoing; the former is a matter for the courts in the DPA context, the latter a matter for the Information Commissioner and his monetary penalty powers. Such was the implication of paragraph 11:

“… it is not the function of the civil court, unless specifically provided for, to impose sanctions. That is done in other parts of the judicial system.”

Another point worth noting is Lady Justice Arden’s analysis of distress and the causation thereof. The distress must be caused by the breach, not by other factors such as (in this case) a failure to comply with a court order. See paragraph 20:

“Focusing on subsection (2), it is clear that the claimant has to be an individual, that he has to have suffered distress, and that the distress has to have been caused by contravention by a data controller of any of the requirements of the Act. In other words, this is a remedy which is not for distress at large but only for contravention of the data processing requirements. It also has to be distress suffered by the complainant and therefore would not include distress suffered by family members unless it was also suffered by him. When I say that it has to be caused by breach of the requirements of the Act, the distress which I accept Mr Halliday would have felt at the non-compliance of the order is not, at least directly, relevant because that is not distress by reason of the contravention by a data controller of the requirements of this Act. If the sole cause of the distress had been non-compliance with a court order, then that would have lain outside the Act unless it could be shown that it was in substance about the non-compliance with the Data Protection Act.”

The claimant had sought to draw an analogy with guidelines and banding for discrimination awards as set by Vento v Chief Constable of West Yorkshire Police [2013] 1 ICR 31. The Court of Appeal was not attracted. See paragraph 26:

“In answer to that point, the field of discrimination is, it seems to me, not a helpful guide for the purposes of data protection. Discrimination is generally accompanied by loss of equality of opportunity with far-reaching effects and is liable to cause distinct and well-known distress to the complainant.”

Finally, Lady Justice Arden commented as follows concerning the level of the compensation to be awarded on the facts of this case: “in my judgment the sum to be awarded should be of a relatively modest nature since it is not the intention of the legislation to produce some kind of substantial award. It is intended to be compensation, and thus I would consider it sufficient to render an award in the sum of £750” (paragraph 36).

Lord Justice Lloyd (who, along with Mr Justice Ryder agreed with Lady Justice Arden) did pause to think about a submission on this question ‘if you were so distressed, why did you not complain immediately?’, but concluded that (paragraph 47):

“I confess that I was somewhat impressed at one point by Mr Capon’s submission that it was a surprise, if Mr Halliday was so distressed by this contravention, that he did not immediately protest upon discovering, in response to his first credit reference enquiry, the fact of the contravention, and indeed he did not protest until about a month after the second report had been obtained. But I bear in mind, in response to that, Mr Halliday’s comment that he had had such difficulty in getting any sensible response, or indeed any response, out of CCF at the earlier stage, that it is perhaps less surprising that he did not immediately protest. In any event, the period in question is not a very lengthy one between his discovery of the contravention by his first reference request and his taking action in July. Accordingly, it does not seem to me that that is a matter that should be taken to reduce my assessment of the degree of distress that he suffered.”

Robin Hopkins

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Information rights: proposed legislative changes and more

May 17th, 2013 by Robin Hopkins

Earlier this week, James Goudie QC blogged on the Intellectual Property Bill’s amendment to FOIA, introducing a new qualified exemption (section 22A) for continuing programmes of research intended for future publication. On the issue of research – which featured prominently in submissions from the university sector during FOIA’s post-legislative scrutiny health-check – this would bring FOIA into line with its Scottish counterpart. For an informative discussion of this topic, see this post from Kit Good.

Interestingly, that post refers to an ICO decision notice (FS50163282 of 29 March 2010) about “tree ring” data, a method used to analyse wood from archaeological sites to determine past climates. The ICO found that Queen’s University Belfast was not entitled to rely on (among other exceptions) regulations 12(4)(d) of the EIRs (material which is still in the course of completion, unfinished documents or incomplete data). As it happens, the Tribunal has today issued a decision concerned with tree ring data in a university research context: McIntyre v IC and UEA, EA/2012/0156. The Tribunal noted the ICO’s note of caution concerning ever-evolving research data: “this argument should not be used to withhold tree-ring chronologies endlessly, by arguing that they are always a ‘work in progress’”. However, on the facts of the case the Tribunal upheld UEA’s reliance on regulation 12(4)(d), as supported by the ICO.

This has not been FOIA’s only outing in Parliament this week. An early day motion was tabled on Tuesday of this week expressing concern at the Government’s proposal to make cost restrictions more public authority-friendly. The motion is worded as follows:

“That this House notes that the Government is proposing to make it easier for public authorities to refuse Freedom of Information requests on cost grounds in order to prevent disproportionate use of the Freedom of Information Act 2000 by some requesters; expresses concern that requests by those making moderate use of the legislation will also be more easily refused under the proposals; is particularly concerned at the proposal that the time which authorities spend considering whether to release information should be taken into account when calculating whether the cost limit has been reached; further notes that this proposal was expressly rejected by the Justice Committee in its post-legislative review of the Act; believes that this proposal will penalise requests raising new or complex issues which will inevitably require substantial time to consider; observes that the Government’s objective will in any case be achieved following recent decisions of an Upper Tribunal that requests which involve a disproportionate, manifestly unjustified, inappropriate or improper use of the Act can be refused as vexatious; and calls on the Government not to proceed with its proposals.”

The motion’s primary sponsor is Richard Shepherd. At present, there are 12 signatories. Maurice Frankel of the Campaign for FOI is urging more MPs to take up the cause.

Turning from FOIA to information rights concerns of a data protection variety, the Care Bill was introduced in the House of Lords last week. Notably, it contains an express provision making the provision of “false or misleading information” an offence (subject of course to the statutory definitions being met). Clause 81 provides as follows:

(1) A care provider of a specified description commits an offence if—

(a) it supplies, publishes or otherwise makes available information of a specified description,

(b) the supply, publication or making available by other means of information of that description is required under an enactment or other legal obligation, and

(c) the information is false or misleading in a material respect.

The aims of this clause are not confined to matters affecting personal privacy – indeed, the explanatory document suggests it is confined to ‘management information’. There may, however, be some crossover with information on individual cases, particularly in ‘low cell count’ cases where individuals could be identified from higher-level data. The Data Protection 1998 does not use the language of “misleading” – focusing instead on inaccuracy and fairness. There are often DPA-related grievances, however, in which “misleading” is an excellent summary of the data subject’s concern.

Robin Hopkins

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Thirteen deadly sins: new ICO guidance on vexatious requests

May 17th, 2013 by Robin Hopkins

On Wednesday, the ICO launched its new guidance on section 14 (vexatious requests) on Wednesday. This follows the Upper Tribunal’s recent decisions on this exemption (Panopticon passim), as well as decisions such as Salford City Council v IC and TieKey Accounts (EA/2012/0047) concerning reliance on section 14 to avoid incurring unreasonable cost burdens.

The ICO’s long-standing 5 indicators are supplanted by a new list of 13 indicators – though the emphasis remains on their not being intended as pseudo-statutory tests (and thus they are not really ‘deadly sins’). The thirteen indicators are (in no particular order):

abusive or aggressive language; burden on the authority; personal grudges; unreasonable persistence; unfounded accusations; intransigence; frequent or overlapping requests; deliberate intention to cause annoyance; scattergun approach; disproportionate effort; no obvious intent to obtain information; futile requests; frivolous requests.

The guidance addresses such topics as round robins, fishing expeditions and requesters acting in concert/as part of a campaign, all of which arise frequently for consideration by public authorities. There is also a section on “recommended actions before making a final decision” (paragraphs 93-97) which public authorities would be wise to consider with an eye on complaints to the ICO from dissatisfied recipients of section 14 notices.

For discussions of the new guidance, see these blog posts from the ICO’s Deputy Commissioner, Graham Smith, and also from FOI Man.

Robin Hopkins

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Google: autocomplete and the frontiers of privacy

May 17th, 2013 by Robin Hopkins

Unsurprisingly, the frontiers of privacy and data protection law are often explored and extended by reference to what Google does. Panopticon has, for example, covered disputes over Google Street View (on which a US lawsuit was settled in recent months), Google’s status as a ‘publisher’ of blogs containing allegedly defamatory material (see Tamiz v Google [2013] EWCA Civ 68) and its responsibility for search results directing users to allegedly inaccurate or out-of-date personal data (see Google Spain v Agencia Espanola de Proteccion de Datos (application C-131/12), in which judgment is due in the coming months).

A recent decision of a German appellate court appears to have extended the frontiers further. The case (BGH, VI ZR 269/12 of 14th May 2013) concerned Google’s ‘autocomplete’ function. When the complainants’ names were typed into Google’s search bar, the autocomplete function added the ensuing words “Scientology” and “fraud”. This was not because there was lots of content linking that individual with those terms. Rather, it was because these were the terms other Google users had most frequently searched for in conjunction with that person’s name. This was due to rumours the truth or accuracy of which the complainants denied. They complained that the continuing association of their names with these terms infringed their rights to personality and reputation as protected by German law (Articles 823(1) and 1004 of the German Civil Code).

In the Google Spain case, Google has said that the responsibility lies with the generators of the content, not with the search engine which offers users that content. In the recent German case, Google has argued in a similar vein that the autocomplete suggestions are down to what other users have searched for, not what Google says or does.

In allowing the complainants’ appeals, the Federal Court of Justice in Karlsruhe has disagreed with Google. The result is that once Google has been alerted to the fact that an autocomplete suggestion links someone to libellous words, it must remove that suggestion. The case is well covered by Jeremy Phillips at IPKat and by Karin Matussek of Bloomberg in Berlin.

The case is important in terms of the frontiers of legal protection for personal integrity and how we allocate responsibility for harm. Google says that, in these contexts, it is a facilitator not a generator. It says it should not liable for what people write (see Tamiz and Google Spain), not for what they search for (the recent German case). Not for the first time, courts in Europe have allocated responsibility differently.

Notably, this case was not brought under data protection law. In principle, it seems that such complaints could be expressed in data protection terms. Perhaps, if the EU’s final Data Protection Regulation retains the severe penalty provisions proposed in the draft version, data protection will move centre-stage in these sorts of cases.

Robin Hopkins

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New FoIA Exemption

May 14th, 2013 by James Goudie QC

Following the Queen’s Speech, an Intellectual Property Bill has been introduced in the House of Lords.  Clause 19 inserts a new exemption into the FoIA (Section 22A).  The exemption is for continuing programmes of research intended for future publication.  Subsection 1(a) of Clause 19 provides that information is exempt from a Section 1(1)(b) FoIA disclosure requirement if it relates to information obtained in the course of, or derived from, a programme of continuing research that is intended for future publication.  Subsection (1)(b) of the new Clause, however, provides that the information will be exempt only if disclosure would, or would be likely to, prejudice a matter listed in that subsection.  The exemption will not be an absolute exemption. It will be subject to the public interest balance test.  Public authorities will not be required to confirm or deny that they hold Section 22A information if, or to the extent that, compliance would, or would be likely to prejudice, any of the matters mentioned in subsection (1)(b).  The Government does not consider that the new exemption raises any issues of compatibility under ECHR Article 10.

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EIR: when is information ‘held’?

May 7th, 2013 by Edward Capewell

One of the issues which commonly arises for information law practitioners is the question, which arises under both FOIA and the EIR, of whether a public authority actually holds the information which has been requested. The leading case on section 1(1) FOIA is University of Newcastle v IC & British Union for the Abolition of Vivisection [2011] UKUT 185 (AAC), [2011] 2 Info LR 54 and substantially the same approach has been adopted in, for example, Keiller v IC and University of East Anglia [2012] 1 Info LR 128 and Clyne v IC & London Borough of Lambeth [2012] 2 Info LR 24 in relation to regulation 3(2) EIR. What is required is a common-sense and non-technical approach. That, of course, is easier stated than applied.

The issue arose again in Holland v IC & University of East Anglia (EA/2012/0098). Like Keiller, this case was concerned with the Climatic Research Unit (“CRU”) at UEA, the source of the so-called ‘Climategate’ controversy. Readers will recall that in November 2009 there was an unauthorised disclosure of a large number of emails concerning work undertaken at the CRU. The ensuing controversy led the university to set up the Independent Climate Change E-mail Review (“ICCER”) chaired by Sir Muir Russell, which reported in 2010.

Mr Holland, who had made a submission to the ICCER, requested “copies of all of the information held” by it. A lot of information had been published on the ICCER’s own website, and essentially what remained, the tribunal found, was the Review’s “working papers”. It seems not to have been in issue that they were in the physical possession of Sir Muir Russell or his solicitors and not UEA. The issue was, therefore, whether the information was held ‘on behalf of’ UEA for EIR purposes. The Commissioner thought not, and the tribunal agreed with him.

Directing itself by reference to BUAV as well as a number of other FTT decisions, the Tribunal decided that it needed first to examine the nature of the legal and practical relationship between UEA and the ICCER/Sir Muir Russell. It found that the inquiry could have been conducted internally, but that UEA had decided to externalise it not, as Mr Holland had argued, in order to avoid its obligations under FOIA and the EIR, but “at a time when UEA’s credibility was very much at stake, in order to inspire confidence in the independence of the findings” (para 104). It went on to find that there was nothing in the EIR, nor in the Aarhus Convention, which prevents public bodies from externalising functions or which means that environmental information thereby created is necessarily held by the public body (para 105). Although there was no written document evidencing a contract between Sir Muir and UEA, the Tribunal found that a contract did exist (para 108). It did, however, express considerable surprise at the absence of a written contract and of the fact that “there was no discussion … about the information that would be received or generated by the ICCER” (para 110). Nevertheless, the Tribunal accepted that both parties had proceeded on the assumption that UEA would have no claim to or be able to access the information and that it would be held by the ICCER on its own behalf (para 114).

The Tribunal went on to hold that there was no other sense in which the ICCER was beholden to UEA or in which its independence was compromised. It was not, as Mr Holland had argued, merely a ‘sham’: “we do not find it likely that [UEA] would have compounded its problems so greatly, and risked its credibility so completely, by setting up an inquiry that was independent in name only” (para 116). Neither the involvement of a Professor Boulton on the Review panel (who had previously worked for UEA) nor the decision not to publish the Appellant’s submission in full affected the fundamental independence of the ICCER (paras 117-118). It followed that the information requested was not held ‘on behalf of’ UEA and the appeal therefore failed. Interestingly, the Tribunal did perhaps give some succour to Mr Holland by saying in para 122 “It may be that the information should be held by the UEA and there may be good reason why, barring anything provided in confidence, the information should be passed to the UEA to form part of its historical records. Were that to happen, then in the future, the information may be held by the UEA.” Leaving aside the question-begging first sentence (why, in EIR terms, ‘should’ UEA hold this information?), the second sentence is an important reminder that the answer to the question of whether information is held is one which is liable to change over time and with circumstances.

Edd Capewell

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Article 8 and enhanced criminal record certificates

April 30th, 2013 by Rachel Kamm

There have been a number of Panopticon posts about the lawfulness of disclosures in enhanced criminal record certificates. The latest decision is that of Mr Justice Stuart-Smith in R (L) v Chief Constable of Cumbria Constabulary [2013] EWHC 869 (Admin).

The principles are now well established. In R (L) v Commissioner of Police of the Metropolis [2010] 1 AC 410 the Supreme Court identified that s.113B (4) of the Police Act 1997 requires that information can only be included in an enhanced criminal record certificate if, in the Chief Officer’s opinion, the information might be relevant and ought to be included in the certificate. Where it is alleged that disclosure would breach an individual’s rights under Article 8 ECHR, the Court must take into account up to date information to reach its own judgment (without deference to the Chief Constable) as to whether or not there has been an interference with the applicant’s right to private life and, if such interference has occurred, whether it is lawful.

In this case, the claimant (“L”) was an experienced secondary school teacher aged in his mid-forties. He challenged the Chief Constable of Cumbria Constabulary’s decisions, communicated by letters dated 15 May and 27 July 2012, not to remove contested information from the “other relevant information” section of the claimant’s enhanced criminal record certificates.

The following is an example of the information disclosed to L’s prospective employers:

 “Cumbria Constabulary hold the following information which we believe to be relevant to the application of L  …. The information relates to an allegation of inappropriate behaviour towards a female pupil of the school where L was employed as a teacher. Cumbria Constabulary believe this information to be relevant to an employer’s risk and suitability assessment when considering L‟s application for the post of supply teacher with vision for education, working with children and vulnerable adults, because the information, which is considered likely to be true, indicates an abuse by L of the position of trust in which he was placed as a teacher.

The information held by police involves an allegation by an 18- year old female that on 07.05.10, whilst in licensed premises, L had inappropriately hugged her and persistently asked her to go home with him, offering her £200 to do so, causing her to feel vulnerable and harassed. The complainant was a pupil at the school where L was employed as a teacher and he had known her since she was 12 or 13 years of age when he was her teacher.

When interviewed by police, L agreed that he had been present that evening but denied all allegations stating that he had not seen or spoken to the complainant. No further police action was taken against L in relation to these allegations as the complainant was 18 years of age and therefore no criminal offences had been committed.

After careful consideration, Cumbria Constabulary considers that this information ought to be disclosed as the alleged incident of inappropriate behaviour occurred in relation to a female pupil of the school where L was a teacher at the time. The information is materially relevant to the post of supply teacher applied for in which L will have regular and unsupervised contact with children and young adults. The risks of similar inappropriate behaviour of a sexual nature by L towards vulnerable young persons must, in this instance, outweigh the prejudicial impact that disclosure may have on L‟s private life and employment prospects as a teacher.”

Mr Justice Stuart-Smith held that the Chief Constable was obliged and right to carry out an assessment of reliability, but that he did not have materials available to him that could justify a determination that some form of communication had taken place between the claimant and the pupil. There was ample material upon which the Chief Constable could have reached the conclusion that the pupil’s evidence may well have been reliable, but the real possibility remained that the allegations were without foundation.

Mr Justice Stuart-Smith went on to find that even if the allegations were true, “the risk disclosed by the one episode of which she complained was not shown to be anything other than slight and was a risk to a very limited class of persons in tightly defined circumstances” (namely, current and former pupils whom L might come across in a pub). The incident alleged was itself relatively minor in the overall scheme of sexually inappropriate behaviour and it was an isolated incident in a long career. The incident had not been properly or fully investigated.

Further, the disclosure was made in circumstances where both the General Teaching Council and the Independent Safeguarding Authority had concluded that there was no case to answer. However, the result of the disclosure “had been as severe for L’s employment prospects as if he had been convicted of a serious offence of sexual misconduct and placed on the Sex Offenders’ Register: it is a killer blow and its effects are likely to be long lasting”.

Mr Justice Stuart-Smith concluded that “any proper balancing exercise comes down in favour of the conclusion that this interference with L’s Article 8 rights is disproportionate and unjustifiable, particularly in a jurisdiction where people are generally to be presumed innocent until proved guilty … the defendant has not shown a pressing need for the disclosure, because of the limited circumstances in which a possible risk of repetition might arise and the relative lack of gravity of the alleged conduct. Nor has the defendant shown that the means used to impair L’s rights are no more than necessary to accomplish a legitimate objective”. The disclosures in the enhanced criminal record certificates had breached his Article 8 ECHR rights.

Rachel Kamm, 11KBW

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MPs’ expenses: copies of receipts are subject to FOIA

April 29th, 2013 by Panopticon Blog

Following the MPs’ expenses scandal, the then newly-founded Independent Parliamentary Standards Authority (IPSA) decided that it would not routinely publish images of the receipts submitted to IPSA by MPs in support of their expenses claims.  Rather, only text transcribed from the submitted receipts was to be published.

The question that arose in IPSA v Information Commissioner (EA/2012/0242) was whether images of those receipts held by IPSA contained “information” within the meaning of section 1 of FOIA, which was not captured by the transcription process favoured by IPSA. In a decision handed down today, the First-Tier Tribunal held that those images do contain such information, and so dismissed IPSA’s appeal. The receipts in question related to claims made by John Bercow MP, Alan Keen MP and George Osborne MP in 2010, which were requested by Mr Brian Leapman of the Daily Telegraph (whose FOIA requests, together with those of others, had played a vital role in the exposure of the old system of MPs’ expenses). The decision is an unusual and interesting instance of the question of “what is information?” arising for consideration in the FOIA context.

Information is defined by section 84 of FOIA (“‘information’ (subject to sections 51(8) and 75(2)) means information recorded in any form”).  The tribunal concluded that, in this case, this definition included logos, letterheads, “handwriting/manuscript comments”, and “the layout and style/design of the requested documents” – each of which were not disclosed to Mr Leapman as a result of providing a transcription, rather than a copy, of the relevant receipts.  The tribunal rejected IPSA’s submission that those materials were “merely presentational”, and went on to consider further examples of information falling within section 1 of FOIA that could be of forensic value to a person investigating expenses claims by MPs:

“…a signature on an invoice may indicate fraud if it was identical to the claimant’s signature or that of a member of his team; a shoddily presented invoice may call into question the legitimacy of the company said to have issued it, or a letterhead or logo may have changed or be different to the one usually associated with a particular company – again bringing the legitimacy of the invoice into question.”

The tribunal noted that IPSA insists on seeing actual receipts for its own purposes, and that the Chief Executive of IPSA had accepted in evidence that “sight of the receipt might be more informative”.

In arriving to the conclusions above, the tribunal rejected an attempt by IPSA to rely on section 11 of FOIA to justify the method by which it chose to disclose information to Mr Leapman. Section 11(4), permits a public authority to use a means of communicating requested information that is “reasonable in the circumstances”; and section 11(1) requires a public authority to give effect to a preference for a particular form of communication to the extent that it is “reasonably practicable”.  IPSA argued that for practical reasons it was not reasonable or reasonably practicable for it to fulfill Mr Leapman’s alleged preference for disclosure by a particular means of communication (see paragraph 14).

The tribunal found, however, that section 11 cannot operate to enable a public authority to limit the information which it is obliged to disclose.  Rather, the principle question for the tribunal was whether the disclosure by IPSA to Mr Leapman in fact conveyed all of the non-exempt information contained within the receipts.  As the answer to that question was “no”, it was not necessary for the tribunal to go on to consider the applicability of section 11.

Robin Hopkins appeared for the Information Commissioner; Philip Coppel QC appeared for IPSA.

Tom Ogg

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