“The world is full of obvious things which nobody by any chance ever observes.” Sherlock Holmes, The Hound of the Baskervilles.

What else can there possibly be to say about Evans not covered in Robin’s excellent post from Thursday? One can contemplate the possible amendments the Government might make (how much clearer could Parliament have made the purpose of section 53), and what other changes might be made at the same time, especially in the light of the PM referring to FOIA as one of the “buggerations” of Government in the Times magazine yesterday. One can analyse the dissenting judgments, which is certainly worthy of time. One can remark again on the constitutional importance of the Supreme Court emphasising the rule of law.

Most information law practitioners probably think there isn’t really anything in Evans that is going to be very relevant to their daily lives. Even central Government FOIA officers have onlyseen seven vetos in ten years, so Evans isn’t going to make much of a practical difference.

But. Almost in passing, there is one passage in the judgment of Lord Neuberger (if not the majority judgment, at least the leading judgment) which is worthy of notice.

As has been previously pointed out on this blog, the Upper Tribunal in Defra v ICO & the Badger Trust [2014] UKUT 526 (AAC) set the cat amongst the FOIA pigeons (if that is not too much of a mixture of animal metaphors) by suggesting at [44]-[48] that it was an open question whether the public interest balance was to be assessed at the time of the request/response or afresh at the time of the Tribunal hearing. That baton is now being taken up in the  latest round of the interminable APPGER litigation.

However, it is possible that the Supreme Court has beaten them to it. The time of the assessment of the balancing exercise was a point of some relevance to the reasoning of Lord Neuberger, because a (powerful) objection to the reasoning of the Court of Appeal (including from me) was that the two permitted exceptional categories, particularly the reliance on fresh evidence, did not leave much room for application of the veto where the public interest was adjudged at or around the time of the request. Lord Neuberger, unlike the Court of Appeal, sought to address the point. In doing so, he noted at [72] that:

“It is common ground, in the light of the language of sections 50(1), 50(4) and 58(1), which all focus on the correctness of the original refusal by the public authority, that the Commissioner, and, on any appeal, any tribunal or court, have to assess the correctness of the public authority’s refusal to disclose as at the date of that refusal.”

As the text sets out, no contrary point was argued, but Lord Neuberger does not express any dissent about it and sets out the legal basis for it in the statutory language. Moreover, he went to reiterate the point, and the exceptions to it, at [72]:

“However, although the question whether to uphold or overturn (under section 50 or sections 57 or 58) a refusal by a public authority must be determined as at the date of the original refusal, facts and matters and even grounds of exemption may, subject to the control of the Commissioner or the tribunal, be admissible even though they were not in the mind of the indivdual responsible for the refusal or communicated at the time of the refusal to disclose (i) if they existed at the date of the refusal, or (ii) if they did not exist at that date, but only in so far as they throw light on the grounds now given for refusal“.

It is difficult to see how the obiter musings of the Upper Tribunal in Badger Trust can withstand this, fairly prolonged, piece of Supreme Court reasoning. Arguments may be made that it was common ground, and possibly that was obiter itself, but it will self-evidently persusive that such experienced and eminent counsel agreed such a standpoint, and that the leading judgment relies upon it.

Perhaps the debate door is shut only shortly after being opened? Perhaps Evans has something to say to FOIA lawyers outside the scope of the veto power after all? Perhaps, perhaps, perhaps…

Christopher Knight

PS A prize (kudos only though) for the first person to spot the link between opening and closing of this post.

The Supreme Court has today handed down a judgment which has very significant ramifications for the operation of the veto regime by the Government in connection with FOIA and EIR cases: R(Evans) v Attorney General. It marks a great victory for the Guardian in its 10 year struggle to gain access to correspondence written by HRH Prince Charles to various government departments. But more than this, it marks an important milestone in the development of FOI jurisprudence, as our highest court makes clear that, when it comes to the application of FOIA, Government cannot trump the decisions of the courts merely because it takes a different view of the facts of the case.

In short, the Supreme Court has held: (a) by a 5:2 majority that the veto issued under FOIA by the AG in respect of the Upper Tribunal’s order that the correspondence should be disclosed was unlawful and (b) by a 6:1 majority that provisions in the EIR which permit the Government to issue a veto in cases falling within the scope of the environmental information access regime were invalid, as they are incompatible with the EU Directive on public access to environmental information (2003/4/EC). The Supreme Court’s Press Summary, which contains a useful summary of the judgment, can be found here.

Posts containing careful analysis of the judgment will undoubtedly follow on Panopticon. 11KBW’s Karen Steyn QC appeared for the Attorney General. Timothy Pitt-Payne QC appeared for the ICO.

Anya Proops

The Catt and T cases are both concerned with this important question: to what extent may the police lawfully retain records relating to individuals who have not in fact been arrested or charged in connection with any criminal offence. The Supreme Court has now had its say on this question – see the judgment here.

The background to the appeal is very helpfully set out in this earlier post. In short, Mr Catt (C) is a peaceful protestor who participated in an anti-arms trade protest conducted by a group called Smash-EDO. Smash-EDO is associated with violent crime. The police overtly recorded information about individuals attending Smash EDO demonstrations, including C. The police went on to retain information about C, including his name, address and information confirming his presence at a particular protest. The data was stored on the police’s Domestic Extremism Database. T is an individual who is alleged to have made a homophobic comment to a neighbour’s friend. The police sent her a ‘Prevention of Harassment’ letter warning her that she could be liable to arrest and prosecution should she commit any act amounting to harassment. The letter was originally retained on the police’s files in accordance with its policy that such correspondence should be retained for 7 years. However, in point of fact, the letter sent to T was destroyed after only two and half years.

The High Court dismissed claims made by C and T that the police’s act of retaining their data constituted a breach of their Article 8 rights. The Court of Appeal allowed the claimants’ appeal, reversing the High Court’s judgment. Now the Court of Appeal’s judgment has itself been reversed by the Supreme Court which, in summary, held that whilst retention of the data interfered with the claimants’ Article 8 rights, the retention was justified under Article 8(2). The core question which the Supreme Court had to address was the proportionality of the retention, particularly having regard to the fact that neither claimant had actually been arrested or charged with any offence.

Mr Catt’s case – The judgment in C’s case was a majority judgment, with Lord Toulson dissenting. In terms of the majority (Lords Sumption, Mance and Neuberger and Lady Hale), it is clear that the judges were of the view that the retention of C’s data was not disproportionate because:

• the level of intrusion with C’s privacy rights was minimal, particularly given that:
  • the information in question is not intimate or sensitive;
  • it related to C’s activities in a public forum – the recorded facts were in that sense in the public domain;
  • there are tight constraints on the uses to which the data may be put (essentially they may only be used for police purposes and are subject to a strict review/deletion policy
• moreover, it would require disproportionate effort for the police to have to weed out this type of record from its other records.
• by way of contrast, the benefits to be obtained from retaining the data were potentially substantial and included enabling the police to develop a detailed intelligence picture of organisations prepared to engage in violent crime

Lord Toulson took a different view of the proportionality issues. In essence, he concluded that the information in question was unlikely to add much value in terms of meeting policing objectives and, further, that the weeding exercise would not be unduly onerous, particularly given that the police regularly had to undertake such weeding exercises in any event.

T’s case – In T’s case, the majority (Lady Hale, Lord Toulson and Lord Mance) were of the view that the retention policy in issue was lawful. Lady Hale and Lord Toulson both made the point that retention of such information over an extended period of time was important, particularly in terms of dealing effectively with domestic abuse cases. By way of contrast, Lord Sumption was of the view that such a lengthy retention period was disproportionate, particularly given the trivial nature of the incident in question. However, on the facts relating to T’s case, he held that it was not disproportionate for the police to have retained the letter for the relatively short period of 2.5 years. Thus, he concurred with the conclusion that the appeal should be allowed.

A key point emerging from the judgment, and indeed the litigation history of these appeals, is that there is no perfect science when it comes to applying the proportionality principle. Instead, the exercise of assessing proportionality is inherently impressionistic, as is illustrated by the wide divergence of views expressed by the judges in the High Court, Court of Appeal and the Supreme Court. It is understood that the claimants will now seek to have the case referred to the European Court of Human Rights. So we may yet see another reversal of fortunes in this interesting and important litigation.

Jason Coppel QC and Robin Hopkins appeared for the Secretary of State for the Home Department, who intervened in the appeal.

Anya Proops

It is not uncommon for data controllers to be faced with subject access requests under s. 7 of the Data Protection Act 1998 the motivations for which appear to have nothing whatever to do with the purposes of the DPA.

The DPA seeks to protect individuals’ privacy rights with respect to data which is processed about them. The subject access provisions help people check up on that data and its processing (see for example YS v Minister voor Immigratie (Cases C-141/12 & C-372/12)). In practice, however, a subject access request is a fishing expedition with an eye on prospective litigation.

How does this affect the individual’s right to have his subject access complied with? The general answer is that, at least as regards applications to the Court under s. 7(9) DPA for the enforcement of a subject access request, the remedial discretion is wide enough to take the requester’s motive and purposes into account.

Kololo v Commissioner of Police for the Metropolis [2015] EWHC 600 (QB) – a judgment of Dingemans J handed down yesterday – looked set to consider the relevance of a requester’s motive (albeit that the context was not the commonplace pre-litigation fishing expedition). In the end, the judgment was largely fact-specific. Nonetheless, it is an interesting illustration of a Court engaging with a requester’s motive and that place of that motive in the statutory scheme.

The judgment is here: Kololo. There is also some press coverage in the Telegraph.

Mr Kololo is on death row in Kenya. He is challenging his conviction and sentence for robbery, kidnapping and murder of British nationals. He has never been to the UK, but officers of the Metropolitan Police were involved in the investigation of the crimes in Kenya and in evidence given at the trial.

His lawyers made subject access requests to the Foreign Office and the Metropolitan Police. The former provided data, but the Police refused. It said his request was an abuse of process.

The predominant purpose of the request was to assist with Mr Kololo’s appeal in the Kenyan Courts. The subject access request itself had said that the information sought “could prove crucial to Mr Kololo’s case”.

In his witness statement to the Court, however, Mr Kololo said that he also wanted to know what information the Police held on him “and what they are doing or have done with it”. He said he was worried about how information about him and his family may be used by the Police.

Dingemans J considered such worry to be speculative. Mr Kololo’s principal aim was plainly to obtain information which might assist with his appeal. But Dingemans J took this view (para. 31): “However, in order for any data which Mr Kololo might obtain from the Commissioner to be of any assistance to Mr Kololo on his appeal, it is likely that Mr Kololo will want to try and point to inaccuracies in the data” (if any such inaccuracies existed).

Therefore, Mr Kololo’s purpose was at least in part aligned with the purposes of the DPA: “a purpose for which Mr Kololo is making the subject access request is to determine whether there are inaccuracies in the data. This means that Mr Kololo (or his legal representatives) is making the subject access request to verify the accuracy of the data. This is so even though verifying the accuracy of the data is unlikely to be of assistance to Mr Kololo for his appellate proceedings. However if the data is not accurate Mr Kololo (or his legal representatives) may seek to correct any inaccuracies in the data. This might, depending on the inaccuracies, be of assistance to Mr Kololo for his other purposes” (para. 35).

Dingemans J noted that the Court’s discretion under s. 7(9) DPA was “’general and untrammelled’ but it is also common ground that such discretion should be exercised to give effect to the purposes of the DPA and be proportionate” (paragraph 32). On the facts, however, one of Mr Kololo’s purposes did accord with the purposes of the DPA. Therefore, his request was held not to be an abuse of process, and the Police were ordered to comply with it.

Additionally, Dingemans J briefly considered the Crime (International Co-operation) Act 2003 for an overseas court or prosecuting authority to request assistance from UK authorities. The existence of that mechanism also did not render Mr Kololo’s subject access request an abuse of process.

Anya Proops and Chris Knight appeared for the Commissioner of Police for the Metropolis.

Robin Hopkins @hopkinsrobin

The extent to which privacy and data protection rights can effectively resonate within the online environment is an acutely important issue for all information law practitioners. Moreover, it is an issue which seems to be gaining ever increasing traction in the litigation context, as is illustrated not least by the following developments.

• As most readers of this blog will know, last year the CJEU sent shock waves through the information law community when it held, in Google Spain, that EU data protection legislation operated so as to enable the so-called ‘right to be forgotten’ to be asserted against Google. (That principle is due to receive further consideration from our domestic courts in the forthcoming case of Max Mosley v Google – see Robin’s post on the Mosley case here).
• Then we had the judgment of the High Court in Vidal-Hall v Google, where the court concluded, in the face of a jurisdictional defence mounted by Google, that claims brought against Google concerning its tracking of the internet browsing habits of users could properly proceed. (An appeal against the High Court’s judgment in that case is due to be heard by the Court of Appeal on 2^nd or 3^rd March – the ICO is intervening in support of the claimants’ case).
• Now the High Court in Northern Ireland has given judgment in an important case involving a compensation claim made against Facebook: CG v Facebook & Anor [2015] NIQB 11.

Key aspects of the CG judgment are as follows:

• The claim was brought by a convicted paedophile in respect of a series of postings placed on Facebook by third parties, one of whom had been named as second defendant to the claims. The postings not only included data amounting to vituperative name-calling but also repeated incitements to violence in respect of the claimant.
• The High Court held that Facebook was liable in respect of the postings, particularly on the basis that it had misused the claimant’s private information by failing to delete the postings after Facebook’s attention had been drawn to their existence.
• The High Court rejected Facebook’s assertion that its liability in respect of the postings was excluded on an application of the Electronic Commerce (EC Directive) Regulations 2002. On this issue, the court held that: (a) the Regulations only immunise the relevant information society service (ISS) against liability if the ISS has no actual or constructive knowledge of the unlawful activity on its site or, if it has acquired that knowledge, it acts expeditiously to remove or disable access to the relevant information and (b) Facebook could not rely on the Regulations in the present case because, after being notified of the relevant postings, Facebook had failed to remove or disable access to them.
• The second defendant, an individual who was responsible for one of the disputed postings, was liable for misuse of the claimant’s private information in his capacity as primary publisher. He was also liable for harassment under the Protection from Harassment Act.
• As for the claim under the DPA 1998, which was brought only against Facebook and not against the second defendant, that claim could not proceed because, on an application of s. 5 DPA 1998, the claim fell outside of the territorial ambit of the legislation. (Notably no reference was made in this context to the CJEU’s approach to territorial ambit under the data protection Directive in the Google Spain case).
• Whilst no DPA claim was pleaded against the second defendant, the court made the following points about the application of the journalistic exemption contained in s. 32 DPA:
  • The court noted that the Claimant had conceded that the second defendant’s activities in posting material on Facebook might about to ‘journalism’.
  • However, the court went on to conclude there was no scope for the second defendant to rely on the journalistic exemption contained in s. 32 DPA 1998. This was particularly because the second defendant could not have had any ‘reasonable’ belief that his publications were in the public interest for the purposes of s. 32(1)(b).
•  The claimant was awarded £20,000 in compensation in respect of his claim for misuse of private information.

What is interesting and important about the CG judgment is that it reinforces the point that organisations which operate merely so as to facilitate online freedom of expression can no longer safely assume that they are always operating in the stratosphere, far above the mire of the privacy litigation battlefield. Instead, they must appreciate that those rights are sufficiently flexible and powerful that they can potentially draw such organisations firmly into the fray.

Anya Proops