NEWS FLASH: INFORMATION TRIBUNAL RIP

January 15th, 2010 by Anya Proops

Today, we should all pause and reflect on the passing of the much loved Information Tribunal. With effect from this coming Monday (18 January 2010), the Information Tribunal in its existing incarnation will cease to exist and all work which has hitherto been done by the Tribunal will be transferred to the new General Regulatory Chamber. The transfer is to be effected in accordance with the Transfer of Functions Order 2010 (SI 2010/22) (“the Transfer Order”). It is important to be aware of the following systemic changes which will result from the transfer:

 

1.                   from 18 January 2010, all appeals under FOIA will be heard either in the First-tier Tribunal (Information Rights) (“the FTT”) or in the Upper Tribunal (“UT”);

2.                   the question whether particular appeals are to be heard in the FTT or the UT is, in principle, to be determined by the new tribunal rules governing the operation of the FTT and the UT (see paragraph 2(3) of the Transfer Order);

3.                   there are in fact two sets of rules which are relevant in this context:

 (a) the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009, SI 2009/1976 (“the FTT Rules”) (as amended very recently by the Tribunal Procedure (Amendment) Rules 2010, SI 2010/43); and

(b) the Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2968/2008 (“the UT Rules”) (as amended by SI 2009/274, SI 2009/1975 and SI 2010/43);

4.                   as matters currently stand, these Rules say very little as to how FOIA appeals are to be allocated as between the two different tribunals, save that all appeals under s. 60 FOIA (appeals against national security certificate) must be heard in the UT (see paragraph 24 of the Tribunal Procedure (Amendment) Rules 2010, SI 2010/43). It is understood that, apart from appeals brought under s. 60 FOIA, the issue of allocation of appeals as between the two tribunals is likely to be determined on the basis of (forthcoming) practice directions rather than by reference to the Rules per se;

5.                   the FTT Rules and the UT Rules will apply in respect of all new appeals brought under FOIA (i.e. appeals which are commenced on or after 18 Janaury 2010);

6.                   in respect of appeals commenced prior to 18 January 2010, the tribunal will have a discretion as to whether to apply: (a) the old rules (i.e. the Information Tribunal (Enforcement Appeals) Rules 2005); (b) the new rules; or (c) a combination of the two sets of rules (see further paragraph 3 of schedule 5 to the Transfer Order which contains the relevant transitional provisions);

7.                   the FTT Rules and UT Rules will in due course be supplemented by practice directions – see further the new practice direction on confidentiality and redaction of documents (dated 18 January 2010). 

 

 

 

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CIVIL MONETARY PENALTIES FOR SECURITY BREACHES OF PERSONAL DATA

January 13th, 2010 by James Goudie QC

The Data Protection (Monetary Penalties) (Maximum Penalty and Notices) Regulations 2010, SI 2010/31, and the Draft Data Protection (Monetary Penalties) Order 2010, create a framework for the Information Commissioner to serve a monetary penalty notice on a data controller if he is satisfied there has been both a serious contravention by the data controller of the data protection principles and that the contravention was of a kind likely to cause substantial damage or distress.   Such contraventions must be either deliberate or something which the data controller knew would occur (or ought to have known) and of a kind likely to cause substantial damage or substantial distress, but in respect of which he failed to take reasonable steps to prevent.   

 

The Regulations prescribe the maximum amount of a monetary penalty.  They also set out the minimum details to be contained in a notice of intent, and in a monetary penalty notice.

 

The Order sets out procedural details of the issue of a monetary penalty notice following a notice of intent.  It also contains details of when enforcement action can be taken, and the power to cancel or vary a monetary penalty notice issued by the Information Commissioner, as well as details of appeal rights of data controllers.    

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REDACTION IS NOT PART OF THE COST OF COMPLIANCE

January 6th, 2010 by Robin Hopkins

Public authorities will wish to note the Information Tribunal’s recent confirmation of the Commissioner’s view that the costs of redaction do not count towards the cost of complying with a request, and should thus be ignored for the purposes of s. 12 FOIA.

 

That section contains an exemption where the estimated cost of compliance with a request under FOIA would exceed the appropriate limit set by the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. By regulation 4(3)(d), the ‘”allowable tasks” for the purposes of the cost calculation include “extracting the information from a document containing it”. In its recent decision in Chief Constable of South Yorkshire Police v Information Commissioner (EA/2009/0029), the Tribunal held that this did not extend to redaction.

 

A differently constituted Tribunal had reached the same decision in Jenkins v IC and DEFRA (EA/2006/0067), but had observed that the point was not free from doubt. The more recent decision – which deals with both statutory construction and matters of principle – appears to have dispelled this doubt.

 

 

 

 

 

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VOLUNTARY ORGANISATIONS: DO THEY FEAR THE CONSEQUENCES OF FOI REQUESTS?

January 4th, 2010 by James Goudie QC

A study, carried out by researchers at the University of Strathclyde, has examined the use of FOI by voluntary organisations and campaign groups across Scotland.  It found that where requests for information were refused, more than half of respondents reported that the public authority failed to notify them of their right to appeal against the refusal, despite there being a legal requirement to do so.  The researchers also found that, where appeals against refusal were made to an authority, one in four respondents said the authority failed to notify them of their right of further appeal to the Scottish Information Commissioner.  The research was undertaken as part of an ongoing 3-year study into the use of FOI laws by the voluntary sector.  The study also found that almost half (49%) of the voluntary sector respondents surveyed would be discouraged from requesting information under FOI because of a fear that it might harm working or funding relationships.

 

The full research study, entitled ‘Public Communication, Democracy and Citizenship: Assessing Civil Society Uptake of Freedom of Information’ is due to be published in 2011.  The research report published on 4 January 2010 “Voluntunteering Information?  The use of FOI laws by the Third Sector in Scotland – Survey Findings” brings together the first-phase quantitative findings from this study.  The research is funded by the Economic and Social Research Council (ESRC), and is supported by the Scottish Information Commissioner.  The research was launched in 2008 following evidence to suggest that the FOI ‘right to information’ might not be being used to its full potential by Scotland’s voluntary and campaign organisations, with only 4% of the appeals received in 2007 by the Commissioner coming from the sector.  This figure compared with 6% from the media, 7% from politicians, and 77% from the public.

 

The Scottish Government is currently considering extending the FOI Act to cover additional bodies.  It announced on 8 December 2009 that it plans to consult on the extension of FOI to cover PFI/PPP contractors, trusts that provide cultural and leisure services and bodies such as the Association of Chief Police Officers in Scotland, the Glasgow Housing Association and privately-run prisons.  The Scottish Information Commissioner has welcomed the announcement, arguing that the practice of handing the delivery of public services to third party organisations not covered by FOI is eroding the public’s right to information.

 

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SUPREME COURT JUDGMENT ON THE INVESTIGATORY POWERS TRIBUNAL

December 11th, 2009 by Anya Proops

This week the Supreme Court handed down an important judgment on the jurisdictional scope of the Investigatory Powers Tribunal (IPT): R (on the application of A) v B [2009] UKSC 12. The case involved a former spy, ‘A’, who wished to publish a manuscript relating to the successes, failures and recruiting techniques of MI5. MI5 had refused to authorise the publication of certain elements of the manuscript under the Official Secrets Act 1989. A subsequently brought a claim for judicial review in the administrative court challenging MI5’s decision. The claim was advanced in particular on the basis that MI5’s refusal breached A‘s right to freedom of expression under Article 10 of the European Convention of Human Rights. The claim was resisted on the basis that, under s. 65 of the Regulation of Investigatory Powers Act (RIPA), it was the Investigatory Powers Tribunal (IPT) which had exclusive jurisdiction to hear any challenge made against MI5’s decision, irrespective of whether or not that challenge was made under the Human Rights Act 1998 (HRA). A’s claim for judicial review was allowed at first instance. In summary, Collins J held that the High Court exercised jurisdiction in respect of the claim in parallel with the IPT ([2008] 4 All ER 511). Collins J’s judgment was subsequently overturned by a majority of the Court of Appeal ([2009] 3 WLR 717). The Supreme Court has now unanimously upheld the Court of Appeal’s majority judgment. In essence, the Supreme Court held that:

 

  • the wording of s. 65 RIPA should be construed broadly so as to ensure that, where decisions of this nature were in issue, they should be heard by the IPT, even if they embraced challenges brought under the HRA;

 

  • the fact that s. 65 operated to oust the jurisdiction which the ordinary courts would otherwise have to hear a human rights challenge was not objectionable on constitutional grounds (i.e. it did not constitute an unlawful ouster). In particular, the ouster of jurisdiction embodied in s. 65 was lawful because: (a) it had been provided for in clear terms under the relevant legislation; and (b) it did not operate to prevent judicial scrutiny of the particular decision but instead merely ensured that that scrutiny was conducted by the IPT;

 

  • the mere fact that the IPT procedures were more secretive than those which would apply in the ordinary courts did not mean that there would be any breach of A’s right to a fair trial under Article 6 ECHR. The use of such procedures could be justified in view of the fact that determination of A’s claim would entail consideration of information which raised issues of national security. (It was noted in the judgment that an application to the ECtHR is currently pending on the question of whether certain of the IPT rules breach various articles of the Convention, including articles 6, 8 and 10).

 

The judgment is likely to be seen as controversial in certain quarters, not least because the secretive nature of the IPT process is regarded by many as being inherently unjust. 11KBW’s Jason Coppel appeared on behalf of B before the Supreme Court.  See further my post on the recent application of the IPT process to a surveillance procedure applied by a local authority.

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JACK STRAW EXERCISES MINISTERIAL VETO (AGAIN)

December 11th, 2009 by Anya Proops

In February of this year, Justice Secretary Jack Straw issued the first ministerial veto under s. 53 FOIA. The veto, which met with considerable public controversy at the time, was issued in response to an Information Tribunal decision which required disclosure of minutes of a Cabinet meeting at which the government decided to go to war in Iraq (see further my paper on this issue). Yesterday, Mr Straw announced that he was exercising his powers of veto for a second time. The new veto has been issued in respect of a decision of the Commissioner requiring disclosure of minutes of the Cabinet Ministerial Committee on devolution to Scotland and Wales and the English Regions 1997. In the public announcement of the veto, Mr Straw stated that disclosure of the information in issue would have put the convention of collective cabinet responsibility at ‘serious risk of harm’. He also stated that he considered the circumstances of the case to be exceptional. Notably, similar points had been used to justify the veto in respect of the Iraq minutes. See further the certificate and Mr Straw’s Statement of Reasons and Veto. The effect of the veto is that the appeal against the Commissioner’s decision, which was due to be heard by the Information Tribunal at the end of January 2010, will now be aborted as the effect of the veto is that the decision notice ceases to have effect. The Commissioner has today issued a statement in response to the veto. The statement expresses regret and concern that the veto was issued in circumstances where the Tribunal had yet to adjudicate on the Cabinet Office’s appeal (cf. the Iraq minutes case where the veto was issued subsequent to the tribunal’s decision). The Commissioner will in due course issue a report to Parliament on the matter.

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The Open University? Application of FOIA to University Course Materials

December 11th, 2009 by Anya Proops

The question of whether and to what extent FOIA can be used as a device to open up public access to educational resources is obviously an important one for our society. It is a question which was very recently considered in the case of University of Lancashire v IC (EA/2009/0034). In that case, the Tribunal was called upon to decide whether a university (UCLAN) had acted unlawfully in refusing a request made under FOIA for disclosure of course materials relating to a BSc degree course in homeopathy. The request had been refused initially on the basis that disclosure of the course materials would damage UCLAN’s commercial interests (application of s. 43 FOIA). Subsequently, when the matter came before the Commissioner, UCLAN also argued that it was entitled to refuse disclosure because of the risks disclosure would pose to the effective conduct of its affairs (application of s. 36 FOIA). The Commissioner held that UCLAN had erred in refusing to disclose the course materials, save that he accepted that certain elements of the course materials, and particularly empirical case studies, could be withheld under s. 41 FOIA (the confidential information exemption). UCLAN appealed the Commissioner’s decision to the Tribunal.

The Tribunal dismissed UCLAN’s appeal. In summary, it held that:

·       with respect to the application of s. 43 FOIA (the commercial interests exemption):

o      despite being a charitable institution, UCLAN did have ‘commercial interests’ and those commercial interests were engaged in respect of teaching materials produced for its degree courses (§31);

o      however, it could not be said that, at the time of the request (July 2006), there was any real and significant risk that disclosure of the homeopathy course materials would prejudice UCLAN’s commercial interestsand accordingly s. 43 was not engaged (§§32-39);

o      in any event, had s. 43 been engaged, the public interest balance under s. 2 FOIA would have weighed firmly in favour of disclosure (§§40-50).

·       with respect to the application of s. 36 FOIA (the public affairs exemption), the exemption was not engaged because the opinion of the qualified person relied on for the purposes of this section was neither reasonable in substance nor reasonably arrived at (§§52-62).

The following aspects of the Tribunal’s decision are particularly worthy of note:

·       in line with the earlier Student Loans case, the Tribunal took a broad approach to the concept of ‘commercial interests’ for the purposes of s. 43. It readily accepted that universities could have commercial interests in the courses which they ran;

·       UCLAN argued before the tribunal that the course materials were exempt from disclosure not least having regard to the facts that: (a) they contained a significant amount of third party copyrighted information and (b) disclosure of that copyrighted information under FOIA would disincline third parties from contributing to course materials in the future. The tribunal rejected these arguments. It did so on the basis that: (1) disclosure of information under FOIA would not in any way have diluted any copyright enjoyed by the third parties and (2) there was in any event no sufficient evidence before the tribunal to substantiate UCLAN’s case that disclosure of the copyrighted material would have had an alienating effect on third party contributors.

·        the Tribunal highlighted the degree of rigour which must be applied when the relevant qualified person is seeking to formulate an opinion which engages s. 36. It also highlighted that the public authority must itself provide evidence that the person who reached the relevant opinion was a ‘qualified person’ for the purposes of s. 36 (§53);

·       on the question of the public interest test, the Tribunal found that there were strong public interests in disclosure. Those interests included both: (1) a general public interest in members of the public being able to test the educational value of publicly funded degree courses and (2) a specific public interest in accessing information relating to a homeopathy degree course which was by its very nature inherently controversial.

The parties were represented by 11KBW’s Tim Pitt-Payne (counsel for UCLAN) and Anya Proops (counsel for the Commissioner).

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Demystifying Data Protection

November 27th, 2009 by Timothy Pitt-Payne QC

The Information Commissioner’s Office has just launched a Guide to Data Protection, available on the ICO website.  At the heart of the guidance is a detailed commentary on each of the Data Protection Principles, and on the conditions for processing set out in Schedule 2 and 3 of the Act.

The Data Protection Act 1998 is, notoriously, not user-friendly.  One of the problems is that so much of its central content is tucked away in the Schedules: for instance, you have to get as far as Schedule 7, paragraph 10 before you find out that there is an exemption to the right of subject access where information is protected by legal professional privilege.   So assistance in navigating the legislation is very welcome.

On a first glance, the ICO Guide looks as if it will be of real help – clearly written, comprehensive, but not unduly lengthy.  It will also be useful to those wanting to know how the ICO itself might interpret and enforce the Act.

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Section 36 FOIA – Use it or Lose it

November 24th, 2009 by Anya Proops

The question of whether public authorities can rely on exemptions which have been claimed for the first time before the Commissioner or the Information Tribunal is a notoriously controversial one (see further e.g. Home Office & Ministry of Justice v IC where the Home Office sought to argue, against existing Information Tribunal orthodoxy, that a public authority could rely on an exemption no matter how late in the process – see further my earlier post on this judgment). The issue of late reliance is however particularly acute in respect of s. 36 FOIA (exemption where disclosure would be likely to prejudice the effective conduct of public affairs). S. 36 provides for a rather unusual exemption in that, in contrast with other exemptions under FOIA, the exemption is only engaged where a relevant opinion has been reached by the ‘qualified person’. The fact that the exemption under s. 36 will only be engaged in circumstances where a particular event takes place (i.e. the relevant opinion has been reached), a question arises as to whether that event must take place prior to the request being responded to (i.e. via the refusal notice) in order for s. 36 to be engaged. This issue has recently been considered by the Tribunal in the case of Roberts v IC & DBIS (EA/2009/0035), 20 November 2009. In that case, the Tribunal held that because information could only be withheld if it was exempt at the time of the request (or more precisely at the time the request was being responded to), it followed that an opinion which was reached after the refusal notice was sent out could not constitute a valid opinion for the purposes of s. 36. The restrictive approach to s. 36 adopted in Roberts is likely to be regarded as a controversial decision and may well be appealed. In the meantime, public authorities should probably err on the side of caution and aim to ensure that, wherever possible, any s. 36 opinion is obtained prior to the release of the refusal notice. It is in any event worth noting that, in the earlier case of Student Loans Company v IC, the Tribunal held that it did not have powers under s. 58 FOIA to consider the application of s. 36 because: (a) no reliance had been placed on that section before the Commissioner and (b) the Tribunal only had powers to decide whether the Commissioner’s decision was lawful (i.e. having regard to the case which was put before the Commissioner).

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DNA Database – A Controversial Behemoth

November 24th, 2009 by Anya Proops

The police DNA database for England and Wales is currently the largest DNA database in the world. It has in excess of 5 million profiles, including the profiles of many individuals who have been found to be innocent of any charges made against them. The rapid development of this vast database has inevitably fuelled debates about the rise of the Surveillance ‘Big Brother’ State. Most notably, concerns have been expressed that the database unjustifiably interferes with the individual’s right to privacy, particularly having regard to the retention of records relating to people who have not been convicted of any offence (there are at least 850,000 profiles of such persons on the DNA Database). Earlier this year, these concerns resulted in a judgment by the European Court of Human Rights that the existing approach to the retention of DNA data relating to unconvicted individuals was unlawful (Marper v UK – see also my earlier post on the Marper case). Concerns have also been expressed as to the disproportionate presence of individuals from ethnic minorities on the database, particularly young black men, and as to the resulting discriminatory potential which is effectively built into the system.

Two recent important developments suggest that the controversies surrounding the database are only likely to intensify in the coming months. First, the government has opted to use the Queen’s Speech to lay before Parliament a bill which contains a number of inevitably controversial provisions relating to the database (the Crime and Security Bill). Second, a government backed commission, the Human Genetics Commission (HGC) has today issued a report entitled ‘Nothing to Hide, Nothing to Fear?’ which criticises a number of aspects of the existing database system.

The following aspects of the Bill are particularly worthy of note:

·         The Bill contains provisions aimed at giving the police additional powers to take DNA samples from individuals who have been previously arrested for crimes but whose biometric has yet to be obtained. The effect of the provisions is that the police will be entitled to take biometric data from someone who may have been arrested some time ago and before the new provisions came into force (clause 2(1)). The provisions also afford the police new powers to take DNA samples from UK nationals or residents who have been convicted overseas of serious sexual and violent offences (clause 3(1)). These powers would equally apply to convictions occurring prior to the coming into force of the new provisions.

 

·         The bill also sets out a statutory framework for the retention and destruction of biometric material (including DNA samples, DNA profiles and fingerprints) that has been taken from an individual as part of the investigation of a recordable offence (clause 14). These powers were consulted upon in the Keeping the Right People on the DNA Database paper published in May 2009. In effect, the provisions envisage a somewhat more nuanced approach to the retention of data with retention periods for the various categories of data depending on a number of factors including the age of the individual concerned, the seriousness of the offence or alleged offence, whether the individual has been convicted, and if so whether it is a first conviction. Most notably:

 

o   the fingerprints and DNA of adults who are arrested but unconvicted will prima facie be retained for a period of 6 years

 

o   the fingerprints and DNA of adults who are convicted will be retained indefinitely

 

o   lesser retention periods apply to persons under the ages of 18 and 16 and, in respect of such minors the gravity of the offence will be in issue

 

o   chief constables are however afforded a power to determine that any retention period may be extended by up to two years for reasons of national security

 

o   all DNA samples must be destroyed six months after being taken.

 

·         The Secretary of State will be afforded powers to make a statutory instrument prescribing the manner, timing and other procedures in respect of destroying relevant biometric material already in existence at the point the legislation comes into force. This will enable the Secretary of State to ensure that the retention and destruction regime set out in this Bill is applied to existing material (clause 19).

 

·         The National DNA Strategy Board which already exists to oversee the operation of the database will be put on a statutory footing (clause 20).

It remains uncertain whether any of these provisions will make it onto the statute books in advance of the forthcoming general election. However, it must be said that the growth in police powers which would be afforded under the Bill does not sit particularly comfortably with the serious concerns as to the existing system identified in the report from the HGC. Those concerns include, not least, concerns about the disproportionate representation of members of ethnic minorities; the retention of data relating to unconvicted persons for any period of time and, further, the problems of function creep.

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