BACKDOOR ATTEMPT TO OBTAIN IRAQ WAR CABINET MINUTES FAILS

December 2nd, 2010 by Robin Hopkins

The minutes of the Cabinet meetings at which it was decided to go to war in Iraq have resurfaced for consideration by the Tribunal. First time round, the Tribunal agreed with the Commissioner that the minutes should be released, but the final word went to Jack Straw, by means of a ministerial veto – which was not subject to a judicial review challenge – issued under section 53 FOIA.

The requester in that case subsequently sought a backdoor route to the minutes, by requesting them under FOIA from the ICO itself. He also sought “background papers which show the processes of thought behind the Information Commissioner’s conclusion that the Cabinet minutes in question should be disclosed”. The ICO did not hold the minutes themselves, but it did hold some handwritten notes made by the then Commissioner, Richard Thomas, and by an ICO caseworker when visiting the Cabinet Office to inspect the minutes. It also held a confidential annex to the Decision Notice, which fell within the veto. All of these he refused to disclose.

The usual FOIA complaints and appeals process ensued, with the Commissioner issuing a decision notice in respect of his own refusal, and then defending that notice before the Tribunal in Lamb v IC (EA/2009/0108).

The basis of the refusal was section 44 FOIA, which provides that information is exempt if its disclosure is “prohibited by or under any enactment”. The Commissioner relied for the latter on section 59 of the DPA, which says that the Commissioner may not disclose information he obtained under the auspices of the Act “unless the disclosure is made with lawful authority”, which arises where “having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary in the public interest”.

As the Tribunal accepted, this is a much higher threshold than the usual public interest test under FOIA: under section 59, there is effectively a presumption against disclosure.

The Tribunal was satisfied that this information was “obtained from” the Cabinet Office, notwithstanding the Appellant’s challenge on that point.

It also agreed with the Commissioner’s application of section 59. Much of the Appellant’s argument turned on the importance of the material he sought. This, said the Tribunal, overlooked the point that the Commissioner had already decided in the Appellant’s favour concerning the Cabinet minutes which he sought. The Tribunal also commented that:

“It is no part of the freedom of information regime to provide a mechanism by which a party who prosecuted a successful complaint to the Information Commissioner in the past may have his or her winning margin reassessed in the light of events subsequent to the date of the original victory”.

The Tribunal did not comment on whether the mere existence of the veto gave rise to the engagement or effectiveness of section 59. Nor did it speculate as to the circumstances in which reliance on section 59 could be defeated – although the wording of that section clearly envisaged this prospect.

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RECENT TRIBUNAL RULINGS – RISKS FOR APPELLANTS

July 15th, 2010 by Anya Proops

The Tribunal has recently issued a ruling highlighting the dangers for a public authority if it submits an inadequately reasoned notice of appeal. In Westminster City Council v IC (EA/2010/0096), the Council had submitted a notice of appeal against the Commissioner’s decision notice within the 28 day time limit allowed for under rule 22 of the Tribunal Procedure (First Tier Tribunal) (General Regulatory Chamber) Rules 2009 (“the Rules”). However, the notice of appeal merely asserted that the Commissioner had erred in deciding that the EIR 2004 rather than the FOIA applied to the disputed information. The notice did not contain any grounds for this assertion. Thereafter, the Tribunal ordered the Council to provide grounds for its appeal. The Council was given a week to provide the relevant grounds. The Council missed that deadline. Moreover, it did so in circumstances where it had not notified the Tribunal that it needed an extension of time for lodging the grounds. The Council invited the Tribunal to overlook the three day delay in submitting the grounds. It alleged that the delay was due to staffing difficulties; the need to take legal advice; a failure to understand the tribunal procedures and a failure properly to record the date set by the Tribunal for submission of the grounds. The Tribunal refused to accept these arguments. It held that the Council was a large authority with a specialised in-house FOIA department; that an alleged lack of resources was not a valid excuse and that advice should have been sought at an earlier stage. Accordingly, the Tribunal refused to accept the grounds. There are two lessons to be derived from this ruling. First, an appellant which fails adequately to particularise its case in its notice of appeal or otherwise to follow up the notice promptly with fully reasoned grounds may well end up losing the right of appeal altogether. Second, where there are concerns that a tribunal deadline may be missed, the affected party should always consider notifying the tribunal of that fact and seeking an extension of time.

In a separate development, the Tribunal recently decided in Thackeray v IC (EA/2010/0088) that an appellant would not be allowed to proceed with his appeal in view of his refusal to provide the Tribunal with a postal address. Mr Thackeray had provided an email address in his notice of appeal but refused to provide a postal address, allegedly because he was concerned that he would face harassment if the address was disclosed. Mr Thackeray argued that provision of an email address was sufficient in order to meet the requirements of rule 22(a) and (c) of the Rules. The Tribunal decided that the notice of appeal would be invalid in the absence of the provision of a postal address. The Tribunal took the view that a postal address was a pre-requisite not least in view of: (a) the fact that parties may want, for reasons of security, to deliver documents directly rather than by email; and (b) a postal address would be required to protect the position of the other parties in the event that costs were awarded against the appellant. Unfortunately, neither of these rulings can at present be found on the Tribunal website.

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SECTION 36 REVISITED – DANGERS FOR THE PUBLIC AUTHORITY

July 12th, 2010 by Anya Proops

Section 36(2) FOIA provides for a number of qualified exemptions, all of which are essentially designed to ensure that disclosures under FOIA do not unduly prejudice the effective conduct of public affairs. The exemptions provided for under section 36(2) are somewhat unusual in that the question whether they are engaged turns upon whether a ‘qualified person’ has given a ‘reasonable opinion’ that disclosure of the particular information would or would be likely to prejudice or inhibit one of the particular matters provided for under s. 36(2) (e.g. it would inhibit the free and frank provision of advice or the free and frank exchange of views). In other words, it is the creation of the reasonable opinion which itself operates to engage the particular s. 36(2) exemption.

The application of s. 36(2) has caused some difficulties in practice. In particular, difficulties have arisen where the public authority has sought to rely on s. 36(2) in circumstances where the reasonable opinion was not in fact generated until sometime after the request was refused by the public authority. In the case of Roberts v IC (EA/2009/0035), the tribunal held that s. 36(2) will not be engaged in these circumstances. This is because, if the information was not in fact exempt at the time the refusal notice was sent out (i.e. because the relevant reasonable opinion was not in existence at that time), it cannot be rendered exempt ex post facto (i.e. as a result of a reasonable opinion having been created after the request has been responded to). See further my paper which examines the Roberts judgment which you can find here.

The restrictive approach to s. 36(2) adopted in Roberts has recently been approved in the case of Chief Constable of Surrey Police v IC (EA/2009/0081). Interestingly, the tribunal in this case went on to highlight the significant dangers for a public authority if it fails to keep a record of the opinion as and when it is reached. Following an earlier decision in University of Central Lancashire v IC (EA/2009/0034), the tribunal in the Chief Constable case effectively held that a public authority will struggle to rely on the exemptions afforded under s. 36(2): (a) if it does not keep a record of the opinion which has been reached and, further, (b) if, in the context of any record which it has made, it fails to identify the particular sub-sections of s. 36(2) which the qualified person has concluded are engaged. Notably, in reaching this conclusion, the tribunal confirmed that it was not the function of the Commissioner to speculate about or forage around for opinions which might have been reached by the qualified person where there was no good evidence that such opinions had in fact been formed at the time the request was being responded to (see in particular paragraphs 54-59 of the decision). 11KBW’s Akhlaq Choudhury appeared on behalf of the Chief Constable.

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APPLICATION OF NATIONAL SECURITY EXEMPTION TO AIRPORT SECURITY INFORMATION

July 12th, 2010 by Anya Proops

As might be expected, FOIA contains a specific exemption designed to safeguard national security, see the exemption provided for under s. 24. In essence, the s. 24 exemption is engaged if the exemption ‘is required for the purposes of safeguarding national security’. Perhaps somewhat surprisingly, the section 24 exemption is a qualified exemption (see s. 2(3) FOIA). This means that, even if the exemption is required in respect of particular information to safeguard national security, the information may still be disclosable on an application of the public interest test provided for under s. 2 FOIA. In Kalman v IC & Department for Transport (EA/2009/0111), the Tribunal was for the first time called upon to consider the substantive application of s. 24 (i.e. how it applied to specific information – cf. Baker v IC & Ors EA/2006/0045, where the tribunal considered the application of the national security exemption in the context of the duty to confirm or deny whether the information was held). The Kalman case involved an application for disclosure of information relating to airport security arrangements. The DfT refused to disclose the information on the basis that there was a real risk that the information, if disclosed, would be exploited by terrorist organisations. The Commissioner largely rejected Mr Kalman’s complaint against the DfT’s decision. Mr Kalman appealed to the Tribunal. There were two issues at stake in the appeal. First, whether s. 24 was engaged in respect of the disputed information and, second, if it was engaged, whether the public interest balance nonetheless weighed in favour of disclosure.

During the course of the hearing, the DfT conceded that some of the disputed information could be disclosed, not least because it was already effectively the stuff of public knowledge. The Tribunal went on to hold that there was other information which ought to have been disclosed for much the same reason. With respect to the remainder of the information, the tribunal accepted that s. 24 was engaged and that the public interest weighed in favour of maintaining the exemption. Notably, the tribunal held that the nature of the risk posed by the disclosure was so serious in this case (i.e. potential significant loss of life due to terrorists exploiting weaknesses in the airport security system) that, even if the risk was relatively slight, there would have to be an extremely strong public interest in disclosure to avoid the information being lawfully withheld. In reaching this conclusion, the tribunal adopted a similar analysis to the one which it had previously adopted in PETA v IC & Oxford University (EA/2009/0076) (case involving the application of the health and safety exemption in a case involving risk of attack by animal extremists).

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LATE EXEMPTIONS – THE LATEST TWIST

June 30th, 2010 by Anya Proops

The question of whether a public authority can seek to rely on exemptions at a late stage in proceedings is one which arises in many tribunal appeals. Certainly, it is not at all unusual for a public authority to argue before the tribunal that it now wants to rely on exemptions which have never previously been identified. Historically, the Tribunal has taken the view that it has a discretion to refuse late reliance on exemptions and, in practice, it has tended to refuse late reliance save where there are exceptional circumstances (see further earlier paper on this issue which you can find here and see also an earlier post here). However, one tribunal has very recently taken a rather different view of the matter. In particular in Home Office v IC (EA/2010/0011), the tribunal held that in fact it had no discretion to refuse late reliance, particularly in view of the way in which the exemptions had been provided for under FOIA. This departure from tribunal orthodoxy is no doubt going result in a significant amount of debate, not least because there are now competing tribunal decisions on the issue of late exemptions. It may be that the matter will be resolved as and when the appeal in the case of DEFRA v IC & Birkett is heard in the Upper Tribunal. However, this remains to be seen. So watch this space.

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11KBW INFORMATION LAW SEMINAR – FOIA UPDATE PAPER

May 20th, 2010 by Anya Proops

Many thanks to all those who attended 11KBW’s Information Seminar last night. For those of you who were unable to attend, you can find a copy of my paper on ‘FOIA – Recent Developments’ here.

The paper touches on the following themes:

·         the issue of aggregating public interest considerations where multiple exemptions are in play (IC v Office of Communications);

 

·         protecting confidential and commercially sensitive information (South Gloucestershire v IC; University of Central Lancashire v IC  and Higher Education & Funding Commission for England v IC);

 

·         how the tribunal approaches cases under FOIA where the health and safety of the public may be put at risk as a result of disclosure (People for Ethical Treatment of Animals v IC & Oxford University and Kalman v IC & Department for Transport (forthcoming));

 

·         the timing of obtaining the opinion of the qualified person for the purposes of s. 36 FOIA (the prejudice to public affairs exemption) (Roberts v IC & DBIS and University of Central Lancashire v IC);

 

·         the application of the personal data exemption under s. 40 FOIA, particularly in respect of statistical data (Department of Health v IC & Pro-Life Alliance and Magherafelt DC v IC);

 

·         late reliance on exemptions (CPS v IC and DEFRA v IC & Birkett);

 

·         allowing a complainant’s representative to access closed material and participate in the closed session (PETA v IC & Oxford University and DEFRA v IC & Birkett); and

 

·         access to property search records (East Riding v IC & York Place and OneSearch Direct v City of York Council).

It also includes a section setting out some practical tips for those involved in information tribunal litigation.

Tim Pitt-Payne QC also presented at the seminar. His paper was on the subject of ‘Information Law in the New Parliament’. An updated version of Tim’s paper, reflecting political developments being reported today, will appear on the blog within the next week.

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LATE RELIANCE ON EXEMPTIONS ONLY TO BE ALLOWED IN “EXCEPTIONAL” CIRCUMSTANCES

April 6th, 2010 by Robin Hopkins

The Tribunal’s recent decision in Crown Prosecution Service v IC EA/2009/0077 concerned a request for information about the CPS’ deliberations on s. 58 of the Children Act 2004, which restricted the availability of the “reasonable punishment” defence to what would otherwise be a criminal assault by an adult on a child. The importance of this decision lies not so much in the fate of the requested information (in short: some was exempt, some was to be disclosed), but in the Tribunal’s approach to late reliance on FOIA exemptions.

The CPS initially relied on s. 35(1)(a) (formulation and development of government policy). Then, in its appeal to the Tribunal, it invoked s. 35(1)(b) (ministerial communications) and s. 42 (legal professional privilege). Finally, the CPS raised s. 40 (2) (personal data) for the first time during the Tribunal proceedings. The Tribunal allowed late reliance on ss. 40(2) and 42, but not s. 35(1)(b).

In so doing, it applied the principles set out in the Tribunal’s decision in Home Office & Ministry of Justice v IC EA/2008/0062. The crux of that decision was that late reliance should only be allowed in “exceptional” circumstances. The Home Office approach was not disapproved in the appeal to the High Court from that Tribunal decision ([2009] EWHC 1611 (Admin)) – but nor was it formally approved. The CPS decision, which was complete with detailed reasoning in support of Home Office, seems to have resolved lingering questions about the Tribunal’s approach to late reliance.

The Tribunal in CPS also considered whether the IC is under a duty to consider exemptions that are not raised by the public authority. Here it followed the approach from Bowbrick v. Nottingham City Council EA/2005/0006: in “exceptional” cases, the IC is “entitled” to look for an appropriate exemption. This did not extend to s. 42 in Bowbrick, nor did it in CPS.

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CHARGING FOR PROPERTY SEARCH INFORMATION – IMPORTANT NEW TRIBUNAL JUDGMENT

March 15th, 2010 by Anya Proops

Anybody who has ever bought a property will know that property searches must be conducted as part of the process. Originally, it was the buyer who had to conducted the searches. However, following the introduction of the HIPs regime in 2007, it is now the seller’s responsibility. In tandem with the introduction of the HIPs regime, the Government introduced the Local Authorities (England) (Charges for Property Searches) Regulations 2008, which empower local authorities to charge for making property search information available to members of the public. However, importantly, those Regulations have to be applied in a way which does not, in effect, cut across the access regime afforded under the Environmental Information Regulations 2004 (EIR). This means that, in practice, it will often be the EIR which governs whether and to what extent local authorities can charge for making property search information available

In the recent case of East Riding of Yorkshire v IC & York Place, the Tribunal was called upon to determine the question of whether, on an application of the EIR, particular property search information should have been made available to a property search company free of charge. More particularly, the Tribunal had to determine whether the local authority: (a) was required to allow the company to inspect the information free of charge at the local authorities premises; or (b) was entitled to refuse inspection and make the information available by way of hard copy documents, for which a charge could be levied under r. 8 EIR. After having made a number of findings as to the weakness of certain aspects of the council’s evidence, the Tribunal went on to hold that the council ought in fact to have permitted the company to inspect the relevant records free of charge. This judgment is important both because of its careful examination of the principles relating to charging under the EIR and because of its implications for local authority charging regimes in respect of property search information. 11KBW’s Jane Oldham appeared on behalf of the council and Anya Proops appeared on behalf of the Information Commissioner. 

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TRIBUNAL RULES – NEW CONSOLIDATED SIs

February 11th, 2010 by Anya Proops

For those of you who were struggling to piece together the various statutory instruments containing the new rules governing the operation of the Information Rights Tribunal, help is now at hand. Consolidated versions of the relevant SIs can now be found on the Tribunal’s website.

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EIR EXCEPTIONS – WHAT DOES IT ALL ADD UP TO?

January 28th, 2010 by Timothy Pitt-Payne QC

In Ofcom v Information Commissioner [2010] UKSC 3 the Supreme Court was asked to consider how public authorities should approach the exceptions to disclosure set out in the Environmental Information Regulations 2004 (EIR).  Most of these exceptions are subject to a public interest test.  The public interest in maintaining an exception has to be measured against the public interest in disclosure.  Unless the public interest in maintaining the exception outweighs the public interest in disclosure, the information must be disclosed.

But what happens if there are a number of exceptions in play?  Do you look at each exception in turn, assessing the public interest in maintaining that exception as against the public interest in disclosure?  Or do you aggregate all of the exceptions, assess the combined public interest in maintaining them, and measure that combined interest against the public interest in disclosure?

In the Ofcom litigation, the Court of Appeal had decided in favour of aggregation.  The Supreme Court was inclined (by a 3-2 majority) to uphold that decision.  But the Supreme Court also recognised that the answer was unclear, and depended on the construction of Directive 2003/4/EC.  So the Court has referred the issue to the European Court of Justice.

There is now a practical difficulty:  in cases where the aggregation point might make a difference to the outcome, what should the Tribunal do? Should it follow the Court of Appeal?  Should it wait for the ECJ?  Or should it reach its own view on how the legislation should be interpreted?  And Ofcom is an EIR case: what about aggregation under FOIA?

In practice nobody will want the outcome of their case to turn on a point that may not be resolved for some years.  It will be much more attractive for parties to argue that aggregation makes no difference to the outcome of their case.

 

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