Why Evans gets the spiders

March 26th, 2015 by Robin Hopkins

I told you FOI was sexy.

The Supreme Court’s judgment in R (Evans) v Attorney General [2015] UKSC 21 has received vast amounts of media coverage – more in a single day than everything else about FOI has received in ten years, I reckon. No need to explain what the case was about – the upshot is that Rob Evans gets Prince Charles’ ‘black spider’ letters. Here’s why.

In other words, this post summarises why the judgment went Evans’ way 5:2 on the FOIA veto and 6:1 on the EIR veto. I leave aside the trenchant dissenting judgments (Lord Wilson on both FOIA and the EIRs; Lord Hughes on FOIA only), which merit a post in their own right.

FOIA and the ministerial veto

Three of the five JSCs who found that the Attorney General’s veto under FOIA was unlawful took the following view (that of Lord Neuberger).

The constitutional context and the restrictive view of section 53

“A statutory provision which entitles a member of the executive… to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom. It would cut across two constitutional principles which are also fundamental components of the rule of law”, i.e. (i) that a court’s decisions are binding and cannot be ignored or set aside by anyone, and (ii) that the executive’s actions are reviewable by the court on citizens’ behalf. “Section 53, as interpreted by the Attorney General’s argument in this case, flouts the first principle and stands the second principle on its head” (paragraphs 51-52).

Therefore, if Parliament intends to permit the executive to override a judicial decision merely because it disagrees with that decision, it must ‘squarely confront what it is doing’ and make its intentions ‘crystal clear’. Section 53 FOIA is a long way from authorising such an override on the grounds of disagreement (paragraphs 56-58).

The upshot is that a minister cannot use section 53 to override a judicial decision simply on the grounds that, having considered the issue based on the same facts and arguments as the court or tribunal, he reaches a different view. In their context, and in light of the serious constitutional implications, the words “on reasonable grounds” in section 53 FOIA must be construed more restrictively: mere disagreement with the court/tribunal will not do.

The threshold is higher: a section 53 certificate will be lawful if there has been a material change in circumstances, or if facts or matters come to light at some point which (a) indicate that the judicial decision being overturned was seriously flawed, but (b) cannot give rise to an appeal against that decision. Such cases will be exceptional, but they are a real possibility, in Lord Neuberger’s judgment. Section 53 therefore retains some utility (see paragraphs 68, 77 and 78). Lord Kerr and Lord Reed agreed with Lord Neuberger’s restrictive view of section 53.

A less restrictive view of section 53

Lord Mance (with whom Lady Hale agreed) also found the Attorney General’s veto in this case to have been unlawful. He agreed that mere disagreement with the decision being overturned will not do. Lord Mance’s interpretation of section 53, however, is markedly less restrictive than that of Lord Neuberger: the accountable person is entitled under section 53 to reach a different view on the balancing of competing interests, even in the absence of the sorts of new considerations Lord Neuberger envisages, provided he gives properly explained and solid reasons against the background and law established by the judicial decision (see paragraphs 130-131).

There is thus more scope for a lawful veto on Lord Mance’s view – but his was not the majority view. Lord Neuberger’s more restrictive view commanded wider support. This makes a big difference to the future use of section 53.

What about First-Tier and ICO decisions?

Here are some further important implications addressed by Lord Neuberger.

This veto was against a decision of the Upper Tribunal, which is a court of record. Do the same stringent restrictions apply to an attempt to veto a decision of the First-Tier Tribunal? Answer: yes.

What about the ICO’s decisions? Is the threshold for a lawful veto equally high, or is it lower? Answer: it is lower, as the ICO’s evaluation can seldom be as exhaustive as that of a Tribunal. Nonetheless, the option to appeal to the Tribunal will be a relevant consideration: to use the section 53 power to achieve what you could also achieve by the more constitutionally appropriate route of an appeal may be an abuse of that power.

Those distinctions are important. Some section 53 certificates have been issued against First-Tier Tribunal decisions – the NHS risk register veto, for example. Others have been against ICO decisions – the High Speed 2 veto, for example. The Iraq war cabinet minutes have been the subject of two section 53 certificates – one against a Tribunal decision, the other against an ICO decision.

The EIRs and the ministerial veto

By comparison, the answer under the EIRs was relatively straightforward: Article 6 of Directive 2003/4/EC requires that refusals to disclose environmental information can be challenged before court whose decisions will be final. The ministerial veto provision does not square with that requirement. Environmental information cannot be the subject of the ministerial veto. These were the arguments advanced by Mr Evans, and by Tim Pitt-Payne on the ICO’s behalf. They were accepted by six of the seven JSCs.

So, a triumphant day for Rob Evans and The Guardian – and indeed for FOIA, the EIRs, transparency and the rule of law.

The outlook for the future use of section 53 is challenging, though there is nuance aplenty, even aside from the dissenting judgments.

Robin Hopkins @hopkinsrobin

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Quite like a whale

February 24th, 2015 by Peter Lockley

As my colleague Robin Hopkins has warned, the decision of the Upper Tribunal in Fish Legal looks like a pretty big beast: sixty pages on whether water companies are public authorities for the purposes of the Environmental Information Regulations, applying the CJEU’s lengthy ruling on the points of principle (for which, see this post by Chris Knight).

(If you just need the quick answer: yes they are, by virtue of having ‘special powers’, but not by virtue of being under the control of a public body. For the detail, read on.)

In fact, while it could never be classed as a minnow, on closer inspection Fish Legal is not the monster it first seems (see Part 1 of the judgment here and Part 2 here). Fifteen of those sixty pages are appendices. More importantly, the decision poses, but declines to answer, some wider questions. Although Mr Justice Charles was sympathetic to the Information Commissioner’s request for guidance on how to identify a public authority, he stopped short of laying down ‘broad general principles’ on the question (paras.95-97). He gave shorter shrift to the water companies’ request that he list all of their powers which fell within the definition of ‘special powers’– a request made, apparently, with a view to lobbying Parliament to rid the companies of those powers, and so save them from the burden of EIR (para.98).

And one would hardly have expected him to address the question with the widest ramifications: if water companies are public authorities by virtue of their “special powers”, what of the various other privatised industries? It is, of course, a very fact specific analysis. Anxious electricity chiefs, rail bosses, and telecoms honchos will just have to read the judgment and consider how the ‘special powers’ and ‘control’ tests would apply to their own particular circumstances (see para. 110).

 

Background

The UT had two issues before it: (i) whether the Information Commissioner had jurisdiction to decide whether a body was a public authority for the purposes of the EIR or FOIA (as he had purported to do), and therefore whether the UT itself had jurisdiction to hear the case, and (ii) whether privatised water companies in England and Wales are public authorities for the purposes of EIR, applying the principles set down by the CJEU following a referral from the UT (blog post here).

By the time of this, the second outing before the UT, the cast list had expanded significantly, bringing in several 11KBW counsel to join Anya Proops, who acted for the Information Commissioner before the CJEU. The Secretary of State was joined as a party and was represented by Julian Milford. The parties in two related cases, Cross v IC and the Cabinet Office and Bruton v IC and Duchy of Cornwall, were also invited to make submissions on the nature of the tests. Karen Steyn QC and Joseph Barrett appeared for Mr Bruton; Amy Rogers appeared for the Duchy. (Those cases will now go forward to be decided applying the Fish Legal principles.)

 

The jurisdiction issue

The Secretary of State argued that under s.57 FOIA, the First-Tier Tribunal only has jurisdiction over a decision notice issued by the Commissioner under s.50(3)(b) FOIA, and that the Commissioner had no jurisdiction to serve a decision notice on the issue of whether a body is a public authority. Section 50 is based on the premise that a request has been made to a public authority; these elements are anterior to the Commissioner’s jurisdiction and he has no authority to decide them within the framework of FOIA.

The UT rejected these arguments. It took the view that jurisdictional provisions are routinely based on certain assumed conditions, but this does not deprive the body in question of the jurisdiction to decide whether those conditions have been met. So the UT’s jurisdiction to hear an appeal on any point of law arising from a decision made by the FTT assumes that a decision has been properly made by a properly-constituted tribunal, but it does not mean that the UT cannot rule on whether those conditions are met in a given appeal (para 31).

The UT applied this reasoning to both a positive decision by the Commissioner that a body is a public authority, and a negative decision that it is not, even though the latter is not a decision notice under s.50(3) FOIA. To hold otherwise would mean that while a body could appeal against a positive decision, a requester would face the more expensive route of judicial review of a negative decision (para.37). Furthermore, the Commissioner would have no power under the similarly structured s.51 FOIA to require the information he needed to reach an informed decision that a body was not a public authority (para. 41).

After scrutinising the decision of the House of Lords in BBC v Sugar [2009] 1 WLR 430, the UT decided that there was nothing in the case that disturbed its conclusions on the point (paras.43-54).

The Commissioner therefore has jurisdiction to decide the issue, the FTT to hear appeals against his decisions and the UT to hear appeals against the decisions of the FTT.

The public authority issue

Two of the limbs of the definition of ‘public authority’ under the EIR were in issue. A finding that the companies fell within either would suffice to make them public authorities. (A little care is needed with the numbers of the provisions in question: Article 2(2)(b) of the Environmental Information Directive is transposed as Reg. 2(2)(c) of the EIR, and Article 2(2)(c) of the Directive as Reg. 2(2)(d) of the EIR.)

 

Persons performing public administrative functions – the ‘special powers’ test

The CJEU expanded on Art. 2(2)(b) of the Directive by explaining that persons ‘performing public administrative functions’ are

52 […] entities, be they legal persons governed by public law or by private law, which are entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.

Only the parts underlined were in dispute in the case of the water companies, which clearly meet the rest of the test.

The UT declined to draw any conclusion from the fact that the CJEU had not seen fit to apply the principles to the facts of this case (paras. 99-100). It also rejected a suggestion that it should ask itself whether the companies’ powers were in the nature of State powers (as the Advocate General had suggested). That was because the definition of ‘State powers’ was unclear and ever-changing, and also because the CJEU had not adopted that test. In the end, however, the UT did adopt the State powers test ‘as a check’ – leaving the status of the test somewhat unclear (paras.113-117).

The main analysis focussed on the following powers of water companies:

Compulsory Purchase (under s.155 of the Water Industry Act 1991, “WIA”): this looks like a quintessential government power unavailable to ordinary citizens, but in fact the water companies enjoy the power at one remove: before exercising it they require authorisation by the Secretary of State, which they can apply for via a process set out in Schedule 11 to the WIA. Nonetheless, the provisions conferred a real, practical advantage on the water companies. Firstly, the application process afforded them privileged access to those advising the Secretary of State on whether to authorise a compulsory purchase. Secondly, it conferred significant commercial leverage on the companies in any negotiation to purchase land, even if they rarely resorted to it in practice (para 107).

Power to make byelaws (s.157 WIA): such byelaws  require confirmation from the Secretary of State, but as with compulsory purchase, the power still confers an advantage on the companies. The section confers power beyond that of any private landowner, since byelaws under s.157 can be backed by criminal sanctions, unlike a landowner’s licence. ‘Special powers’ extends to ‘special powers of enforcement’ (para. 110).

Power to lay pipes (s.159 WIA): this power was the subject of a detailed comparison with the powers ordinarily available under private law. The companies argued that the same powers could be acquired through a license or easement. While accepting that this was potentially so, the UT emphasised that private law typically requires consent of the parties to achieve such a result (through the law of contract or property). By contrast, the WIA gives the water companies effective power to compel this result (para.121).

Power to enter land (s.168 WIA): although there are powers within private law allowing entry to another’s land (eg self-help to abate a nuisance at common law), they are narrowly circumscribed (eg they require possession of neighbouring land). The water companies’ powers are both wider and deeper: they apply against any landowner in the company’s area of license, and they extend to surveying and even boring on the land (para.125).

Hosepipe bans (ss.76-76C WIA): these powers are unlike anything available at private law, and moreover are backed by criminal sanctions.

Since it was content that the companies enjoyed a cluster of special powers, the UT formally left open the question of whether one would have been enough (see para. 105). However its comment in conclusion that the powers mentioned were ‘sufficient, collectively in themselves and as examples of powers of the same type’ to meet the test (para. 130) suggests that some pattern of powers will probably be necessary before a body is considered a public authority.

 

Persons under the control of public authorities

The CJEU’s elaboration of Article 2(2)(c) set out the test for ‘control’ in the following terms:

68 […] this third, residual, category of public authorities covers any entity which does not determine in a genuinely autonomous manner the way in which it performs the functions in the environmental field which are vested in it, since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on the entity’s action in that field.

The test applies to the manner in which functions are performed, not the functions themselves: a body is not under control of the Government merely because its powers derive from statute (para. 133). There are two elements to the test: the body must (i) operate in fact in a non-autonomous manner, and (ii) do so because a public authority is in a position to control it (para. 134). In other words, although the public authority need not actually be exercising its powers of control, the existence of the powers must have a real constraining effect on the body in question (para.135). Furthermore, the test required the UT to look at the companies’ overall manner of performing their environmental services: it would not be enough to find control in ‘one or two marginal aspects of their business’ (para. 136).

As for prior authorities, Smartsource was simply no longer relevant: the task of the UT was to consider the issue afresh in the light of the CJEU’s ruling (para.137).

The UT was at pains to point out that ‘no legitimate business has complete freedom of action’: all operate in a framework of legal and commercial constraints. Something more is needed before one can say that they have lost their autonomy (paras 142-144).

The two counsel for the requesting parties sought to supply that ‘something more’ by advancing ‘macro’ and ‘micro’ examples of actual state intervention in the water industry: recommendations by the Secretary of State made on reviewing a Draft Water Resources Management Plan, and an enforcement notice issued by OFWAT in respect of the risk of sewer flooding in the Penketh area. These were dismissed as no more than ‘increased intensity of oversight at particular times and in respect of particular activities’ (para.148).

A list of potential interventions was also provided – an analysis of the Secretary of State’s powers under the WIA. Although these clearly put the Secretary of State ‘in a position to exert decisive influence’ over the water companies’ actions, they too were rejected as not demonstrating control. The UT’s first two reasons are a little puzzling. The first was that the powers are (to some extent) a substitute for the forces of competition, since water companies enjoy local monopolies (para. 151). This rather begs the question: the grant of a monopoly confers great power on a private entity, which needs to be limited in the public interest. Just because state control is a substitute for market forces, this does not stop it from being a form of control. The second reason was that ‘the risk of enforcement is at most only a marginal consideration for a reputable company’ (para.152). Really? Why then did OFWAT need to issue that enforcement notice for the Penketh sewers?

However, the UT went on to find that whatever the potential for intervention, the more basic aspect of the control test was not satisfied. Merely listing all the possible interventions distorted the picture of how the companies operate in fact, and only addressed the second element of the test. The UT’s overall conclusion on the control test was that ‘despite the extent to which there is scope to influence the companies’ decision-making on the way it delivers its services, the evidence does not show that that influence is actually exerted to such an extent that overall the companies lack genuine autonomy (para.153).

You might not have predicted this result if you had read the CJEU’s heavy hint on the question of control – see [71] of its judgment

The weight that the UT afforded to the companies’ status as ordinary private companies is one of the surprises of the judgment. And it will be one of the few points of comfort for other privatised utilities. Not many can be as heavily regulated as the water industry; perhaps they too can avoid at least this limb of the definition.

 

POSTSCRIPT: if you’ve come here from Robin’s post, you may be wondering what Lewis Carroll has to do with all this. Loyal reader (which you must be if you’ve got this far), your guess is as good as mine. Why is the section on the State powers test (paras. 113-117) headed ‘Hunting of the Snark’? Answers on an e-postcard please.

 

 Peter Lockley

 

 

 

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Leviathan

February 23rd, 2015 by Robin Hopkins

Hot off the press: the Upper Tribunal has given its judgment in Fish Legal.

Applying the principles from the CJEU’s judgment of December 2013, it has held that the respondent water companies are public authorities for the purposes of the Environmental Information Regulations 2004, by virtue of their “special powers”.

The issues and facts are complex, and the judgment is lengthy. It also makes reference to Lewis Carroll, who now somehow appears in two consecutive Panopticon posts.

The judgment is contained in these two documents: FISH LEGAL UT DECISON PART 1 and FISH LEGAL UT DECISON PART 2.

Analysis  of the judgment will follow on Panopticon shortly (thus the barrister dreamed, while the bellowing seemed to grow every moment more clear).

Robin Hopkins

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Legal professional privilege does not automatically engage an EIR exception

May 6th, 2014 by Robin Hopkins

FOIA provides an exemption (s. 42) expressly for legal professional privilege; as is well known, there is ‘strong inherent weight’ in maintaining that exemption. What about the EIRs? LPP is not expressly mentioned, but regulation 12(5)(b) EIR applies to information the disclosure of which would adversely affect “the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature”. Does information attracting LPP automatically come within that exception? Many practitioners operate on the assumption that the answer is ‘yes’. The Upper Tribunal has on a previous occasion, however, left that question open: DCLG v IC and Robinson [2012] UKUT 103 (AAC); [2012] 2 Info LR 43.

That question has recently been revisited. In GW v IC, Local Government Ombudsman and Sandwell MBC [2014] UKUT 0130 (AAC), the Upper Tribunal answered ‘no’: just because LPP applies, it does not automatically follow that regulation 12(5)(b) EIR is engaged. Further analysis is needed – and the onus is on the public authority to make out its case on adverse effects on the course of justice etc.

The requester has complained to the Council about what was being emitted from the chimneys of two of his neighbours who were using wood-burning stoves. The Council obtained written legal advice from counsel. It told the requester it could not progress his complaint as he wished. He complained to the Ombudsman. The Council shared its legal advice with the Ombudsman, expressly on a confidential basis. The requester sought that advice from the Ombudsman. His request was refused. The IC’s decision went against him. So too did that of the First-Tier Tribunal.

The Upper Tribunal, however, found that the FTT went wrong in attributing too much weight to the prejudicial effects which it thought likely to arise “simply through the weakening of this important doctrine” [of LPP].

UT Judge Turnbull considered the wording of regulation 12(5)(b) EIR and said this: “In my judgment that requires attention to be focused on all the circumstances of the particular case, and there is no room for an absolute rule that disclosure of legally privileged information will necessarily adversely affect the course of justice”.

The crux, in his judgment was this: “What particularly matters for present purposes is in my judgment that the rationale for the doctrine and its absolute nature is established as being the need for the client to be able to obtain legal advice on a full and frank basis”.

In the present case, disclosure would be unlikely to prejudice that underlying principle – the Council’s ability to obtain free and frank advice would not be impeded. “What might be damaged would be not the course of justice but the ability of the LGO to conduct future investigations on a fully informed basis” – but that was a different point to the one at the heart of the FTT’s reasoning. The FTT had thus gone wrong in its public interest analysis.

Interestingly, one factor in the UT’s reasoning appears to have been that it was not taken to “any particular part or feature of the Advice which the Council would be unhappy about disclosing, or pointed to any specific concern which it has about Mr W or the public in general seeing it. Nor has it been suggested, for example, that the Advice needs to be qualified because of some inaccuracy or incompleteness in the instructions to counsel. The weight to be accorded to the adverse effect on the course of justice in this case is in my judgment very substantially less than it would have been if the LGO had been able to rely on the weakening of the doctrine of LPP which compulsory disclosure of legal advice will almost always involve”. This offers useful indications of what, in this UT’s view, might suffice to engage regulation 12(5)(b) EIR in respect of information which attracts LPP.

The public authorities also sought to rely on regulation 12(5)(d) EIR (confidentiality of proceedings). By regulation 12(9), however, that exception cannot be relied upon “to the extent that the environmental information to be disclosed relates to information on emissions”. Did that disapplication provision bite here? No, said the UT: “In substance the Advice did not “relate to” information as to the particular nature and extent of those emissions, but rather it related to the meaning and effect of the legislation”. In this case, regulation 12(5)(d) EIR was engaged.

Turning to the public interest balance, a preliminary point addressed by the UT concerned timing: matters post-dating the statutory time for compliance with a request can only properly be taken into account to the extent that they shed light on matters as they stood up to that time, or if they are relevant to the IC’s ‘steps discretion’ under s. 50(4) FOIA. They are not otherwise relevant to the public interest balance.

What might count in favour of the disclosure of privileged information? “In my judgment, therefore, when considering this issue it is relevant to consider not only whether the Council (and/or the LGO) made statements which were positively wrong, but whether they made statements which were liable to mislead or confuse the reader, and so have generated a confusing picture as to the effect of and reasoning behind the Advice”.

In this case, while there was no intention to mislead, “the combined effect of the information which the LGO and the Council had given up to this point was liable to create substantial confusion, in the mind of any reasonable reader, as to what the Advice did say”.

As to the public interest in maintaining the exception, the main factor was “the effect which disclosure would have on the ability of the LGO to obtain legally privileged information from local authorities on the footing that it should remain confidential” – especially given that the Ombudsman cannot compel local authorities to share such information with it. There would thus be a chilling effect on such information-sharing.

In contrast, the unfairness to the Council of having its legal advice shared with the requester was a relatively weak factor.

Overall, however, the balance very firmly favoured the maintenance of the exception. In this case therefore, the likely damage to the LGO’s work prevailed where LPP had not.

Robin Hopkins @hopkinsrobin

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Property searches under the EIRs: Tribunal refers questions to the CJEU

February 13th, 2014 by Robin Hopkins

The ability to impose charges for the provision of property search information is an important financial issue for many local authorities. Historically it had been thought by many that the imposition of such charges was governed by the Local Authorities (England) (Charges for Property Searches) Regulations 2008 (“CPSR”), which allow local authorities to recover all the costs of making such information available (including staff costs, overhead costs and the costs of maintaining relevant information systems). However, in recent years there has been an increasing awareness of the fact that requests for property search information to a large extent amount to requests for access to environmental information, such that they call for an application of the charging regime provided for in r. 8 of the Environmental Information Regulations 2004. The CPSR itself specifically provides that it does not apply to the provision of any information which is governed by other statutory charging regimes. Accordingly, it would seem that the CPSR is inapplicable in respect of requests for property search information insofar as those requests are made under the EIR.

Regulation 8 EIR allow reasonable charges to be imposed for making environmental information available, save that no charge may be imposed for permitting access to public registers or examining the requested information in situ. The question of when a public authority can impose charges and also what will constitute a reasonable charge has now been considered by the tribunal in a number of different cases, all of which concerned requests for property search information (see e.g. Kirklees Council v IC & Pali Ltd [2011] UKUT 104 (AAC) and also East Riding of Yorkshire v IC).

Earlier this year, in Leeds City Council v IC & APPS Claimants (EA/2012/0020-21); [2013] 1 Info LR 406, the First-Tier Tribunal was asked to decide whether, when making environmental information available other than by means of inspection or through public registers, the local authority was entitled under r. 8 to charge only for disbursements (the Commissioner’s case) or whether other costs, such as the cost of staff time spent searching for the requested information and overhead costs, could be factored into the charge (the Council’s case). Having carefully considered not only r. 8 but the provisions on charging in the Directive on Public Access to Environmental Information (“the Directive”), the FTT concluded that public authorities could only charge in respect of disbursement costs. It also held that Leeds had erred in determining the charge by reference to the CPSR. Leeds initially sought and was granted permission to appeal against the decision. However, the appeal was not pursued. Notably, the Commissioner argued before the FTT in the Leeds case that the question of what would constitute a lawful charge could not satisfactorily be resolved without a reference to the Court of Justice of the European Union. That argument was not supported by Leeds or the APPS claimants. The FTT decided that it could resolve the appeal without a reference and so none was made.

These issues have now resurfaced before the First-Tier Tribunal in East Sussex County Council v IC & Property Search Company & the Local Government Association (EA/2013/0037), another property search case. In this case, the applicant requested answers to questions in the standard property search form issued by the Law Society, the CON29R form. The Council imposed a fixed charge for providing this information, the fixed charge having been calculated on the basis of the approach provided for in the CPSR (i.e. was a charge which was intended to produce a cost neutral result for the Council). The charge itself factored in not only disbursement costs, but also staff time, a portion of the Council’s overhead costs, office costs and a portion of the costs of maintaining the information systems from which the relevant information is derived.

In light of an analysis of preparatory legislative materials for the Directive, the Commissioner conceded that costs beyond mere disbursement costs could in principle be factored into the charge. In particular, he argued that staff time spent searching for the information could be included. However, he disputed that other costs (e.g. overheads, office costs and the costs of maintaining the relevant information systems) could lawfully be included. However, the Commissioner’s position before the FTT was that, notwithstanding his concession, there remained substantial uncertainty as to what constituted a permissible charge under the Directive and a reference to the CJEU was still warranted. The other parties to the appeal ultimately agreed that this was an appropriate course.

The FTT has now decided that there should be a reference for a preliminary ruling. The questions being referred are:

(1) What is the meaning to be attributed to Art 5(2) of Directive 2003/4/EC and in particular can a charge of a reasonable amount for supplying a particular type of environmental information include:

(a) part of the cost of maintaining a database used by the public authority to answer requests for information of that type;

(b) overhead costs attributable to staff time properly taken into account in fixing the charge?

(2) Is it consistent with Arts 5(2) and 6 of the Directive for a Member State to provide in its regulations that a public authority may charge an amount for supplying environmental information which does “… not exceed an amount which the public authority is satisfied is a reasonable amount” if the decision of the public authority as to what is a “reasonable amount” is subject to administrative and judicial review as provided under English law?”

Hopefully the CJEU will in due course agree to give a preliminary ruling. In the meantime, local authorities and those engaged in the property search industry will have to wait with baited breath.

Anya Proops acts for the Information Commissioner.

Robin Hopkins @hopkinsrobin

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Chagos Refugees Group in the First-Tier Tribunal: some key points

September 24th, 2012 by Robin Hopkins

The Chagos Archipelago forms part of the British Indian Ocean Territory (“BIOT”). In the late 1960s and early 1970s, the inhabitants of the Chagos Islands were required to leave those islands. At or around that time, a US military base was established on Diego Garcia, the largest of the Chagos Islands. The removal of the “Chagossians” has been a matter of considerable political and media debate, as well as complex legal proceedings. Two legal challenges are ongoing: Chagos Islanders v UK before the European Court of Human Rights, and Bancoult (No 3) before the domestic courts.

In 1999, the then Foreign Secretary commissioned a feasibility study concerning the possible resettlement of some of the islands. A preliminary study was conducted, followed a “phase 2B” study conducted by external consultants. The final report of the phase 2B study was made public. There was some ministerial correspondence about the studies.

In April 2010, representatives of the Chagossians sought information from the Foreign & Commonwealth Office about these studies. In particular, they asked for any draft versions of the phase 2B study (and any accompanying reports), as well as related ministerial correspondence.

The FCO disclosed some information, but withheld one note to a minister (Baroness Amos). As regards the draft reports, it claimed that – if these existed at the time of the request – they were held by the external consultants who authored them. The FCO maintained that the consultants did not hold that information “on behalf of” the FCO for the purposes of the Environmental Information Regulations 2004. The Commissioner upheld the FCO’s position.

The Tribunal (chaired by Andrew Bartlett QC) upheld the Chagossians’ appeal in part. A disclaimer to the following analysis: I appeared for the Information Commissioner. The post below is not a commentary on the case, but (with my Panopticon hat on) I highlight some of the points of general interest to FOIA and EIR practitioners. For a broader commentary on the case, see the excellent post from David Hart QC on One Crown Office Row’s UK Human Rights Blog.

The Tribunal in Chagos Refugees Group in Mauritius and Chagos Social Committee (Seychelles) v IC and FCO (EA/2011/0300) agreed with the FCO that information held by the consultants was not, at the date of the request, held “on behalf of the FCO” for EIR purposes. The Tribunal applied the guidance on the approach to “held” from University of Newcastle v IC and BUAV [2011] UKUT 185 (AAC), [2011] 2 Info LR 54 (see paragraphs 59-67). Generally, whether information is “held” will be a question of fact, but the Tribunal added that “we would also wish to qualify the proposition in McBride v IC and Ministry of Justice (EA/2007/0105) that whether information is held on behalf of a public authority is “simply a question of fact”. In some cases it will be important to determine the exact nature of the legal relationship between a person holding information and the public authority, or to determine the legal structure pursuant to which information was created and held” (paragraph 61).

The Tribunal analysed both the factual and legal relationship between the FCO and the consultants in reaching its conclusion. Its decision should be given careful attention when considering whether information is “held on behalf of” a public authority.

On the adequacy of the FCO’s own searches, the Tribunal said this at paragraph 70:

“… we consider it is relevant to draw attention also to the Tribunal’s remarks in the context of a FOIA request in Muttitt v IC (EA/2011/0036) (31 January 2012) at [68], to the effect that a search should be conducted intelligently and reasonably, and that this does not mean it should be an exhaustive search conducted in unlikely places: those who request information under FOIA will prefer a good search, delivering most relevant information, to a hypothetical exhaustive search delivering none, because of  the cost limit.”

As to the Baroness Amos note, the Chagossians were largely successful in their appeal: disclosure was ordered, bar a few redactions. In its analysis, the Tribunal considered the time at which the public interest was to be assessed. It has become almost trite in FOIA and EIR cases that the answer to this question is “at the time of the request or, at the latest, the date at which the public authority ought to have responded”. This question is, however, not altogether settled. In this case, the Tribunal was content to assess matters up to the date of the conclusion of the FCO’s internal review (see paragraphs 22-29). On a similar point, the UpperTribunal in Evans (see my earlier post on this) by no means considered it beyond doubt that matters should only be assessed at or shortly after the date of the request.

The Tribunal considered that weighty public interests would be served by disclosure of the contents of the Baroness Amos note, despite that being only a small amount of information. At paragraph 112 it said this:

“The amount of information in a potentially disclosable document is without doubt a material matter to take into account. At the same time, it is important not to discount unduly the significance, in the public interest, of the disclosure of small amounts of information. Publicly useful freedom of information requests are generally limited in scope. If too broad, they face the obstacle under FOIA of the costs limit, and under the EIR of the proportionality requirement. If the Tribunal were to take an unduly minimalist view of the value of the publication of relatively small amounts of information on matters of considerable legitimate public interest, this would materially reduce the effectiveness of the legislation. We would regard this as tending to conflict with the general purpose of  the legislation, as seen in the authoritative remarks in Sugar v BBC [2012] UKSC 4 at [76]-[77], which in our view apply with equal force to the EIR, particularly in view of the presumption in favour of disclosure found in EIR regulation 12(2).”

This outweighed the public interest in maintaining the exception for internal communications. Timing was key to the ‘safe space’ argument advanced by the FCO and the Commissioner. The Tribunal endorsed the approach taken in the Department of Health (NHS risk registers) case, whereby policy formulation can “dip in and out” of the need for a safe space. The Tribunal in this case concluded that (paragraph 123):

“We acknowledge the prospect that at some future date – perhaps in 2013, perhaps later – after the final conclusion of the two pending pieces of litigation, the resettlement policy is likely to be the subject of reconsideration. In our view that was at all material times, and remains today, a very weak reason for maintaining the confidentiality of a document written in entirely different circumstances in 2002.”

Robin Hopkins

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HRH the Prince of Wales: advocacy of an ordinary man

September 19th, 2012 by Robin Hopkins

The Upper Tribunal’s judgment in Evans v IC and Others (Seven Government Departments) [2012] UKUT 313 (AAC) (Mr Justice Walker, Professor John Angel and Suzanne Cosgrave), handed down yesterday, has received extensive media coverage – unsurprisingly so, given the subject matter (Prince Charles’ correspondence with government departments) and the requester (Rob Evans of the Guardian). The judgment is stupendously long (65 pages, plus 3 open annexes). Here are the salient points.

The issues

Mr Evans made requests in April 2005 for correspondence between Prince Charles and seven government departments. Crucially, this was confined to correspondence involving “advocacy” on the part of Prince Charles, i.e. information on (a) “identifying charitable need and setting up and driving forward charities to meet it”, and/or (b) the promotion of Prince Charles’ views on various issues. It was described as “argumentative correspondence”. The interaction with government first revealed in the Prince Charles-approved biography by Jonathan Dimbleby published in November 1994.

Disclosure was refused on the basis of a number of exemptions under FOIA: ss. 37(1) (communications with Her Majesty, with other members of the Royal Family or the Royal Household), 40(2) (presonal data) and 41 (actionable breach of confidence). Insofar as it comprised environmental information, the requested information was refused on the basis of reg. 12(5)(f) EIR (adverse affect on the interests of the person who provided the information).

The relevant date for the Upper Tribunal’s assessment was 40 days after Mr Evans’ requests for interal reviews of these refusals, i.e. 28 February 2006. At that stage, the relevant part of s. 37(1) was a qualified rather than an absolute exemption.

The Upper Tribunal found in Mr Evans’ favour with respect to all of the exemptions: the public interest favoured disclosure (in the case of the qualified and EIR exemptions), disclosure of the relevant personal data would not breach a data protection principle, and any action for breach of confidence would be defeated by a public interest defence.

The crucial issue: advocacy correspondence and the education/apprenticeship convention

The case for withholding the information was to stand or fall with the analysis of the relevant constitutional conventions (practices which are non-legal but fundamental to the UK’s parliamentary democracy) concerning communications between the monarchy and government. The Upper Tribunal analysed these conventions in depth, and addressed the crucial issue of the extent to which they were relevant to the “advocacy” correspondence in dispute.

Two conventions are extremely important. The cardinal convention is that the monarch acts on advice. The tripartite convention is that the monarch is entitled to be consulted, to encourage and to warn her ministers. The Upper Tribunal was satisfied that “there is ample reason to justify the principle that the internal operation of these two conventions is not revealed, at least until after a long time has passed” (paragraph 87). These two conventions, however, apply only to the sovereign – not to the heir.

The pivotal convention relied on in this case was the “education convention”, whereby the heir to the throne is to be instructed in the business of government. The Upper Tribunal preferred this label to the proposed alternative of “apprenticeship convention”: the latter term assumed what it had to prove, namely that Prince Charles was through the disputed correspondence practising the skills required of him when he becomes the sovereign, rather than some other skills. Also, the work of apprentices is overseen by masters; Prince Charles is thus not like an apprentice or, for that matter, a pupil barrister (the Upper Tribunal noted) insofar as he is conducting his advocacy correspondence.

Until relatively recently, the education convention was, in constitutional terms, “little more than a footnote” (paragraph 89). Nonetheless, it was important, and the Upper Tribunal’s judgment did not entitle Mr Evans to information caught by that convention.

The fundamental issue here was that, contrary to the case for the government departments (who advanced the novel case that the education convention encompassed all information of this kind) the advocacy correspondence did not come within the education convention. The Upper Tribunal considered that the alleged constitutionally-important confidentiality of such advocacy correspondence could not be reconciled with the disclosures in the Dimbleby biography.

Ultimately (paragraph 99):

“The plain facts are that what Prince Charles is doing is not prompted by a desire to become more familiar with the business of government, and simply is not addressing what his role would be as king…  they all have as their context Prince Charles’s strong belief that certain action on the part of government is needed.”

See also paragraph 106:

“… there is an overwhelming difficulty in suggesting that there is good reason for regarding advocacy correspondence by Prince Charles as falling within a constitutional convention… it is the constitutional role of the monarch, not the heir to the throne, to encourage or warn government. Accordingly it is fundamental that advocacy by Prince Charles cannot have constitutional status… the communication of encouragement or warning to government has constitutional status only when done by the monarch.”

The key conclusion: Prince Charles’ advocacy correspondence has no special status favouring non-disclosure

The Upper Tribunal was clear that, for Prince Charles as for anyone else seeking to advance charitable causes or promote views through correspondencw with government, such advocacy correspondence would generally be disclosable. See paragraph 7:

“Confidential interaction between government ministers and others, in a context where those others are seeking to advance the work of charities or to promote views, would generally be disclosable – especially where those others have privileged access to ministers. Our conclusion is that special factors concerning Prince Charles will not – under the legislation governing the requests in this case – generally result in a different consequence.”

In other words, Prince Charles’ advocacy correspondence is to be treated in the same way as anyone else’s. See paragraph 210:

 “We are not persuaded that they warrant giving correspondence between ministers and Prince Charles greater protection from disclosure than would be afforded to correspondence with others who have dealings with government in a context where those others are seeking to advance the work of charities or to promote views.”

The result was that the public interest/fairness factors favouring non-disclosure were not especially weighty, at least in that they did not have any constitutional significance. This judgment is also the first binding confirmation that, as with the EIR, the public interests protected by each separate FOIA exemption are to be aggregated, and the cumulative public interest in non-disclosure is to be weighed against that in disclosure (see paragraph 207).

The public interest in disclosure

So, when analysing the public interest/fairness case for withholding the information, Prince Charles was to be treated like an ordinary person. Prince Charles is, however, not like an ordinary person, given his position and influence. The Upper Tribunal found there to be great public interest in how he sought to wield that influence through his advocacy correspondence. It also made a number of important observations on ‘general’ (i.e. non-case-specific) factors favouring disclosure, and commented on the relevance of media interest. The most notable public interest points are below.

The Upper Tribunal firmly endorsed the strength of the public interest in transparency on important governmental matters generally, irrespective of whether the particular information does or does not answer any questions of specific concern. See paragraph 133 (my emphasis):

“… we think it important that the strength of these general interests should be acknowledged rather than minimised. It is because other methods of achieving accountability and transparency have had only limited success that freedom of information has been agreed by signatories to the Aarhus convention as regards environmental matters, and enacted more generally throughout the United Kingdom as a whole. When disputed information concerns important aspects of the working of government, the interests in accountability and transparency will be not merely of general importance, but of particular strength.”

On a similar note, the Upper Tribunal was clear that an informed debate was something of great importance, regardless of whether the information helped dispel or confirm any particular suspicions about how Prince Charles wielded influence. See paragraph 151:

“It seems to us that the perception that Prince Charles exercises special influence stems from the biography. As to whether it would either be confirmed or dispelled by disclosure of the disputed information, this too seems to us to miss the point: the public interest lies in having an informed debate.”

Moving on to the particular nature of the information in dispute, there was strong public interest in transparency of Prince Charles’ advocacy correspondence, particularly given that he seeks to conduct that correspondence in a way that represents the interests of (at least some of) the public. See paragraphs 141-142, and 152:

“The fact that Prince Charles corresponds with and meets ministers, on confidential terms, is in the public domain: but without the disclosure of actual examples of the correspondence, it is difficult for the public to understand what this actually means in practice… whether this country should remain a monarchy is of course a legitimate matter of public debate. More generally, debate about the extent and nature of interaction between government and the royal family, and how the monarchy fits in to our constitution, goes to the heart of understanding the constitutional underpinning of our current system of government. We conclude that these are all important and weighty considerations in favour of disclosure.

…

We agree with the Departments that when it is said that Prince Charles speaks “on behalf of us all” that reflects that he writes to ministers on what he believes is in the public interest. This, however, does not answer Mr Evans’s point that it seems incongruous that the public should not know about it.”

As to the public interest defence to a breach of personal confidence, the Upper Tribunal considered it important that Prince Charles voluntarily conducts himself as a public figure. See paragraph 202:

“It would be unreal to contend that Prince Charles is not a public figure. Neither the Commissioner nor the Departments advance such a contention. There is, however, in our view a strong air of unreality about their contention that his birth gave him no choice as to whether to engage in advocacy correspondence. The analogy made by Mr Fordham with a hereditary peer was in that regard compelling: some may feel impelled to intervene for the public good as they see it, either publicly or behind the scenes. Others may not. Applying the Strasbourg case-law we see no basis for saying that when Prince Charles does so his actions must be characterised as “truly personal.” On the contrary they are, on his own description, all motivated by a desire to put the “Great” back in Great Britain.”

Media interest was a relevant public interest factor, but the Upper Tribunal was careful to distinguish sensationalism from serious reporting. See paragraph 157 (my emphasis):

“The media interest in Prince Charles’s interaction with ministers is substantial.  It seems to us that this is not a factor which in itself necessarily favours disclosure.  What is relevant is that there is a real debate, generating widespread public interest, on a matter which goes to the heart of our constitution.  Sensationalism merely for the sake of it will not generally be in the public interest.  The media accounts we have seen have, on occasion, had sensationalist aspects.  For the most part, however, the media reporting is of a kind which has focused on the substance.  It is relevant when assessing the public interest to note the extent to which, over the relevant period, there have been media reports of this kind.”

The Upper Tribunal was not persuaded that disclosure would have a “chilling effect” on correspondence between the Prince and the government. Nor did it consider it relevant that the Prince’s advocacy was not motivated by any desire for commercial gain.

A final important point on the public interest balance concerned the argument (advanced relatively frequently) that disclosure of this information would engender misconceptions or misunderstandings on the part of the public. Again, the Upper Tribunal was not persuasive. It said this at paragraph 188 (my emphasis):

“There is, as it seems to us, a short answer to all the various ways in which the Departments have sought to rely on dangers of “misperception” on the part of the public. It is this: the essence of our democracy is that criticism within the law is the right of all, no matter how wrongheaded those on high may consider the criticism to be.

The future: ‘interesting questions’

Given its assessment of important constitutional principles (not only as regards the heir to the throne, but as regards democratic engagement more generally), this judgment is a very important development in FOIA jurisprudence.

However, s. 37 is now largely an absolute exemption (thanks to the changes to FOIA made by the Constitutional Reform and Governance Act; as an aside, see the unsuccessful attempt to obtain information on how those changes came about: Pragnell v IC and Ministry of Justice (EA/2011/0279)). Does this mean Evans is of largely historic interest when it comes to information concerning the monarchy? The answer is, probably not. First, some requests for information made prior to the CRAG changes remain to be resolved. Secondly, the EIR have of course not been correspondingly changed – which raises what the Upper Tribunal considered “interesting questions”. “Environmental information” has been sought from members of the royal family in the past: Bruton v IC and Duchy of Cornwall (EA/2010/0182)) was one such case, and one imagines it will not be the last. The Evans principles may therefore be highly relevant in future cases.

11KBW’s Jonathan Swift QC, Julian Milford and Tim Pitt-Payne QC appeared in this case.

Robin Hopkins

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Meaning of ‘public authority’ under the EIRs: ECJ to consider

September 14th, 2012 by Robin Hopkins

The leading authority on the meaning of “public authority” under regulation 2 of the EIR is Smartsource v IC and a Group of 19 additional water companies [2010] UKUT 415 (AAC). In that case, the Upper Tribunal found that the water companies were not public authorities for EIR purposes. Smartsource has been applied in, for example, Bruton v IC and Duchy of Cornwall and Montford v IC and BBC.

The issue has returned to the Upper Tribunal in Fish Legal v IC [2012] UKUT 177 (AAC), again in the context of water companies. As the Upper Tribunal has noted, however, the principles are relevant to other privatised, regulated industries that deliver a once publicly-owned service: electricity, gas, rail and telecoms. As the EIR implement European legislation, the meaning of “public authority” has been referred to the ECJ, which has recently published the questions it will be considering.

These involve the meaning of ‘performing public administrative functions under national law’ (is the applicable law and analysis purely a national one? If not, what EU law criteria should be used?), what does ‘control’ mean (in the context of one person/body controlling another) and does an ‘emanation of the state’ necessarily come within the definition? Another crucial issue is the so-called ‘hybrid authority’ question: if a body falls partly within the definition, do EIR rights apply only to those parts (functions, activities etc) that do, or to the whole of the person/body?

Those are, of course, paraphrases. The actual questions can be found here. The ECJ’s answers will be enormously important to information access rights in the UK.

11KBW’s Rachel Kamm represented the Information Commissioner before the Upper Tribunal.

Robin Hopkins

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The BBC in the Tribunal: not a public authority under the EIR; strong arguments for disclosure of licence fee legal advice

August 17th, 2012 by Robin Hopkins

In Montford v IC and BBC (EA/2009/0114), the appellant had asked the BBC various questions about its expenditure in relation to Cambridge Media and Environment Program, which researched and planned a programme of seminars that had been running since 2005 at which BBC editorial staff discussed issues such as environmental change and world development, with the objective of improving BBC journalism in those areas.

The BBC is a public authority within Schedule 1 of FOIA only within the following parameters: “The British Broadcasting Corporation, in respect of information held the purposes other than those of journalism, art or literature”. The Supreme Court addressed this “derogation” from FOIA in Sugar v BBC [2012] UKSC 4: see our post here. Montford concerned not only the application of Sugar to this request, but also an argument that, given the subject matter of the request and the BBC’s activities, the BBC was a public authority within the meaning of regulation 2 of the EIR.

The Tribunal considered the leading cases on the latter point (Smartsource, Port of London, Network Rail, Bruton) and – applying the multifactorial approach from Smartsource – concluded that the BBC was not a public authority under the EIR. Further, the requested information was not environmental: that requires more than a remote link to the environment, and in the present case there was no link. It was therefore FOIA which applied, and Sugar meant that the requested information fell within the derogation. The BBC therefore did not have to provide it.

The BBC also featured – though not as a party – in another Tribunal decision of late. Crawford v IC and DCMS (EA/2012/0018) concerned the conclusion of the ‘BBC settlement’, ie the funding arrangements (freezing of the licence fee, BBC taking over World Service funding and so on) agreed with extraordinary speed between Jeremy Hunt and BBC Trust chair Michael Lyons in October 2010. The requester – a BBC journalist – sought information about that agreement. By the time of the hearing, the only disputed information was legal advice, which fell within section 42(1) of FOIA. The argument focuses on the public interest.

As readers will be aware, information falling within section 42(1) has very rarely been ordered for disclosure by the Tribunal. One gets the sense from the Tribunal’s decision in Crawford that the appellant here came closer than most to getting the information he sought.  The Tribunal noted the unprecedented speed with which negotiations about matters of great public interest were concluded in 2010. In the circumstances, there were “weighty factors in favour of disclosure of any information which can shed light on how this speedy settlement which affects so many people was reached. In other words there is a significant public interest in transparency and accountability in this case”. The stumbling block, however, was that the disputed legal advice shed only limited light on those concerns. Disclosure was thus not ordered. The Tribunal concluded on a note of sympathy with the requester:

“We would observe that we can understand why Mr Crawford has pursued this matter to a hearing despite disclosure of most of the information originally requested. It seems to us, that despite the exceptional nature of the CSR, the haste of the negotiations and lack of record of what took place means that Mr Crawford has quite understandably had to challenge the DCMS into providing whatever contemporaneous record there might be to help him in his journalist pursuit to provide the public with the facts of this unprecedented Licence Fee Settlement with its far reaching effects.”

Robin Hopkins

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New guidance on the Environmental Information Regulations

July 11th, 2012 by Rachel Kamm

The Information Commissioner has published new guidance on the Environmental Information Regulations 2004. It is available here. It includes helpful hyperlinks to other relevant guidance and is well worth a read.

Rachel Kamm

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