On 17 November 2009, the Supreme Court will hear the Information Commissioner’s appeal against the Court of Appeal’s judgment in Office of Communications v Information Commissioner [2009] EWCA Civ 90 (Ofcom). In Ofcom, the Court of Appeal held that, when multiple exceptions were engaged in respect of particular information, the public interest test provided for under regulation 12(1)(b) of the Environmental Information Regulations 2004 would operate so as to entitle the public authority to aggregate all the different public interest factors relating to all applicable exceptions in a single, compendious public interest balancing exercise. This judgment was controversial, not least because it represented a departure from the well-established approach of tailoring public interest considerations to the individual exception in issue. Notably, in a recent Information Tribunal decision, the Tribunal highlighted some of the practical difficulties posed by the adoption of the aggregate approach to the public interest test (South Gloucestershire v Information Commissioner (EA/2009/0032), §§48-52). 11KBW’s Clive Lewis and Akhlaq Choudhury will be appearing on behalf of the Commissioner in the Supreme Court.
Abortion statistics: identification of patients and doctors held to be unlikely
November 2nd, 2009 by Robin HopkinsIn 2003, the Department of Health significantly reduced the detail of publicly available statistics on abortion operations: for example, no information was any longer to be released about post-24-week abortions carried out on the grounds of foetal medical defects. The Department relied principally on s. 40 FOIA in refusing the Prolife Alliance’s request for more detailed data. The Information Tribunal has, however, ordered the statistics to be disclosed: see Department of Health v IC (Additional Party: the Pro Life Alliance) (EA/2008/0074). The Tribunal agreed with the Department that the requested abortion statistics, although entirely anonymised, did constitute personal data because they were not anonymous in the hands of the data controller. The Department’s principal concern, namely the inferential identification of doctors or patients, was not, however considered ‘likely’ in the circumstances. This factual finding meant that, in the Tribunal’s view, the release of the requested personal data was fair and lawful and that (under paragraph 6(1) of Schedule 2 to the DPA) the potential prejudice to patients and doctors was outweighed by legitimate third party interests in (inter alia) monitoring compliance with abortion law, identifying abortion trends, informing public debate and encouraging accountability of medical practitioners. The decision is of note for its detailed analysis of the ways in which individuals might be identified from statistical data, and for the Tribunal’s reliance on the Corporate Officer of the House of Commons litigation (in its various stages) for guidance on the balancing test under paragraph 6(1) of Schedule 2 to the DPA.
Media Law and Practice – new book from OUP
October 30th, 2009 by Timothy Pitt-Payne QCHot off the press is a new book from OUP on “Media Law and Practice”, edited by David Goldberg, Gavin Sutter, and Ian Walden.
This is a multi-author book, written by a team of practitioners and academics. It covers a wide range of media topics, including ownership, regulation, intellectual property, defamation, and commercial communications.
I contributed a chapter on Information Law: this discusses data protection, freedom of information, and human rights issues, including articles 8 and 10 of the Convention. One of the book’s features is that it deals with new forms of communication (including blogging), as well as traditional print or broadcast media. So I had to address questions such as, how would the “special purposes” defined in the DPA (ie artistic, journalistic and literary purposes) apply to web-based publications?
The impetus for the book comes from the Institute of Computer and Communications Law, based in the Centre for Commercial Law Studies, Queen Mary, University of London. All three editors are members of the Institute. It’s a major centre for research and teaching in areas related to information law, including intellectual property, telecoms regulation, computer law, and media law.
The book is available online from OUP’s website.
The application of FOIA to public service broadcasters
October 7th, 2009 by Ben HooperTwo High Court judgments were handed down last week on what has become known as the BBC’s “derogation” – its limited entry in Sch. 1 to FOIA, under which FOIA applies to the BBC only “in respect of information held for purposes other than those of journalism, art or literature”. Channel 4 and S4C (the Welsh television channel) have entries in Sch. 1 to the same effect.
The cases were Sugar v. BBC and BBC v. Information Commissioner. The former concerned a request for an internal BBC report into Middle East reporting, the latter concerned four sets of requests for various items of financial information relating to the BBC’s programme output. In both cases, Irwin J rejected the submission advanced by all parties that a test of dominant purpose should be used when applying the derogation (i.e. that where information was held for a variety of purposes, it would outside FOIA if it was predominantly held for the purposes of “journalism, art of literature”). Instead, Irwin J applied a de minimis approach and held that, on a proper construction of the derogation, “the BBC has no obligation to disclose information which they hold to any significant extent for the purposes of journalism, art or literature, whether or not the information is also held for other purposes.” (See para. 65 of Sugar).
It is as yet unclear whether this aspect of the judgments will be challenged on appeal. Unless and until it is, it would seem that the scope for applying FOIA to information held by the public service broadcasters is more limited than was previously thought to be the case.
Reforming the Information Tribunal
August 5th, 2009 by Timothy Pitt-Payne QCA letter was circulated yesterday (4th August) to “stakeholders” of the Information Tribunal, giving information about the implications for the Information Tribunal of the new unified tribunal structure.
The new structure involves a system of First Tier tribunals and Upper Tribunals. The Information Tribunal will be one of a number of tribunals that transfer into the General Regulatory Chamber (GRC), one of the First Tier tribunals.
According to the letter, from January 2010 information rights cases will generally be heard in the GRC, with an appeal to the Administrative Appeals Chambers of the Upper Tribunal on a point of law. However, in some circumstances cases will be heard in the first instance in the Upper Tribunal. This will be where the appeal is complex, unusual, or particularly important. In additional national security appeals (under section 28 of the Data Protection Act 1998 or section 60 of the Freedom of Information Act 2000) will go straight to the Upper Tribunal.
The procedural rules for those tribunals moving into the GRC in September 2009 have now been finalised and laid before Parliament. This includes the Charity Tribunal, the Estate Agents Appeals Panel and the Consumer Credit Appeals Tribunal. For those jurisdictions moving to the GRC in January 2010 – including the Information Tribunal – any further specific procedural rules will be added by amendment once Parliament has approved the transfer. Approval is expected later this year.
House of Lords Grants Permission in Ofcom
August 3rd, 2009 by Anya ProopsLast month the House of Lords granted the Information Commissioner permission to appeal the Court of Appeal’s judgment in Office of Communications v IC [2009] EWCA Civ 90 (‘Ofcom’). In Ofcom, the Court of Appeal considered the question of how the public interest test under regulation 12(5)(b) of the Environmental Information Regulations 2004 (‘EIR’) applied where a number of different exceptions were engaged in respect of particular requested information. It held that, rather than conducting discrete public interest balancing exercises under each individual exception, the public authority could effectively bundle all the public interest considerations relevant to the applicable exceptions into a single compendious public interest balancing exercise. The Commissioner has now been granted permission to appeal the judgment to the newly constituted Supreme Court. 11KBW’s Ahlaq Choudury is acting on behalf of the Commissioner.
Podcast on employment vetting
July 2nd, 2009 by Timothy Pitt-Payne QCThanks to CPDcast, I have recently recorded a podcast on the subject of employment vetting. It deals with various subjects, including CRB checks and the new ISA barring regime. If you want to listen, it’s available here. I hope to be able to post a code here in a few days (with the agreement of CPDcast) which will enable readers of this blog to listen for free. It’s also worth looking at the rest of the site; they are very strong on information law subjects.
11KBW Information Law Seminar
June 4th, 2009 by Panopticon Blog11KBW last night hosted a successful and well-attended information law seminar. The seminar was chaired by James Goudie QC and papers were presented by Tim Pitt Payne and Anya Proops. Tim presented a paper which considered issues of surveillance and employee banning lists and vetting (‘The Surveillance Society In and Out of the Workplace’). Anya presented a paper on recent FOIA developments (‘Recent FOIA Developments: Parliamentary Crises, Ministerial Vetoes and Beyond’). 11KBW would like to thank all those who took the time to attend. If you are legal practitioner and are interested in attending future 11KBW information law seminars, please contact our Head of Marketing, Lucy Miller (lucy.miller@11kbw.com; 0207 632-8500).
DPA/FOIA overlap
April 14th, 2009 by Timothy Pitt-Payne QCThe overlap between FOIA and the DPA gives rise to a number of difficult problems.
In a paper just posted on 11KBW’s website (and originally delivered to a JUSTICE/Sweet & Maxwell conference in December 2008) I discuss some of these issues. In particular, I deal with the practical problems that arise when an individual makes a request for information to a public authority and some (but not all) of the information constitutes his own personal data. Because the request falls under both the DPA and FOIA, the Information Commissioner will need to deal with any complaint under two different legal regimes; if the requester subsequently appeals, the Information Tribunal will not have jurisdiction to deal with all the issues raised by the request. The article suggests that the present position is unsatisfactory and discusses options for reform.
Recent ICO decisions on Freedom of Information
April 8th, 2009 by Amy Rogers
In Decision Notice FS50139215, issued this week, the Commissioner has ordered the Met Police to disclose particular CCTV footage showing the movements of the perpetrators of the terrorist attacks on London on 7 July 2005.
The Met had argued that the footage was exempt from disclosure under sections 30(1)(a) (information held for the purposes of an investigation) and 38(1)(a) (health and safety) of FOIA.
The Commissioner accepted that the exemption in section 30(1)(a)(i) and (ii) of FOIA was engaged. However, he rejected arguments that such disclosure would render meaningful police investigation impossible and that, pending any trial, the CCTV footage should only be disclosed to the CPS, the Courts or other bodies involved in the investigative process.
The Commissioner’s comments on the public interest in full disclosure of any material relating to the 7/7 bombings are of particular interest. He noted, for example, that whilst there had already been widespread media coverage in relation to the bombings, “full disclosure in order to avoid any suspicion of ‘spin’ or ‘cover up’ will continue to be in the public interest regardless of the volume of related information that has previously been disclosed”. On similar lines, he observed that in circumstances in which the 7/7 attacks had been the subject of conspiracy theories, the fact that “disclosure would presumably support the official account of the time line and basic facts of the attacks and reduce any perceived lack of transparency about how this account was formed, along with removing any suspicion of ‘spin’ or ‘cover up’” was a valid public interest factor in favour of disclosure.
The Commissioner rejected the Met’s claim that the exemption under section 38(1)(a) of FOIA (health and safety) was engaged at all, emphasising that the arguments advanced by the Met on this point had lacked detail in relation to the specific CCTV footage in question. He also concluded that, whilst not cited by the Met, the personal data exemption in section 40(2) of FOIA was engaged in respect of footage from which individuals other than the perpetrators of the attacks could be identified. The Met must redact this information, such as by pixellation, before the footage is disclosed.
In other Decision Notices issued this week, the Commissioner has held that:
- Oxford, Cambridge and Manchester Universities and Kings College and University College, London must disclose information relating to primate research. A complainant had sought such information from a number of universities, including information as to the numbers and species of primates referred to in returns to the Home Office, and as to current research. The Commissioner held that the exemptions relied upon by the universities were not engaged (variously, sections 38 (health and safety), 40 (personal data) and 43 (commercial interests) of FOIA).
- The Department of Health must disclose civil servants’ submissions to Ministers in relation to proposed variations to consultants’ contracts as part of its ‘modernising medical careers’ initiative. Whilst the exemption in section 35(1)(a) (policy) of FOIA was engaged, the public interest in maintaining the exemption did not outweigh that in disclosure (FS50151464).
- In contrast, the FCO was entitled to refuse to confirm or deny whether it held particular information as to identification of a voice heard in the video showing the beheading of Ken Bigley in Iraq in 2004. The FCO successfully relied upon sections 23(5) (information supplied by or relating to the security services) and 24(2) (national security) of FOIA (FS50188323).