CONFIDENTIAL INFORMATION IN THE TRIBUNAL

January 22nd, 2010 by Timothy Pitt-Payne QC

The Tribunal has issued a Practice Note dated 18th January 2010, dealing with the protection of confidential information under the new rules of procedure.

The Note needs to be read in conjunction with the new rules of procedure (discussed in our earlier post here).  The relevant rules are set out in the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009 (SI 2009/1976) as modified by the Tribunal Procedure (Amendment) Rules 2010 (SI 2010/43). 

The Practice Note indicates that the Tribunal will maintain its previous practice, that disputed information (i.e. the information sought by a requester but withheld by a public authority) will not usually be disclosed to the requester in the course of appeal proceedings before the Tribunal. This may mean that a party is excluded from part of the Tribunal hearing.  The Practice Note refers to rule 35 of the new Rules as providing a basis for exclusion.

The Practice Note also includes guidance about the format of witness statements (see paragraph 22) and the contents of bundles (see paragraph 25).

 

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HOW BUSY IS THE TRIBUNAL?

January 22nd, 2010 by Timothy Pitt-Payne QC

The First-tier Tribunal (Information Rights) – as we must now learn to call it – has recently published on its website a list of its current cases (updated to 20th January 2010).  This gives an interesting insight into the volume and type of work reaching the Tribunal.

Cases are numbered by year of receipt, and in the order that they are received: for instance,  EA/2009/100 is the 100th case received in 2009.  This means that the case numbering system indicates how many appeals were received in a particular calendar year.  On this basis, the Tribunal seems to have received 123 cases in 2009, and 30 (so far) in 2010;  which suggests a sudden sharp increase in its workload.

The list shows 102 live cases.  Of these, only one is identified as a Data Protection Act case.  11 cases are identified as involving the Environmental Information Regulations.  All of the other appeals (90 cases) are brought solely under the Freedom of Information Act.

As the figures suggest, free-standing DPA cases before the Tribunal are rare.  There are also few DPA cases that reach the ordinary courts.  But many FOIA cases involve DPA issues.  So a significant volume of DPA case-law is being generated by the Tribunal; but most of this is in the context of FOIA, and in particular the data protection exemption in FOIA section 40. 

 

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NEW TRIBUNAL, SAME OLD WEBSITE

January 18th, 2010 by Timothy Pitt-Payne QC

The website for the new First-tier Tribunal (Information Rights) is at the address formerly used by the Information Tribunal:  see here.

The website includes the Practice Statements that were issued under the old rules (i.e. the Information Tribunal (Enforcement Appeals) 2005), but as yet it does not include any practice directions made under the new rules.  We are however aware of a practice direction dated 18th January 2010 on confidentiality and redaction of documents (referred to in Anya’s post of 15th January).

The website also includes a redrafted version of the appeal form.

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NEWS FLASH: INFORMATION TRIBUNAL RIP

January 15th, 2010 by Anya Proops

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

 

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

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

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

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

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

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

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

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

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

 

 

 

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The Law Officers’ Convention and the Ministerial Code – High Court Judgment

August 7th, 2009 by Robin Hopkins

The recent judgment in HM Treasury v Information Commissioner and Evan Owen [2009] EWHC 1811 (Admin) saw the High Court quash a decision by the Information Tribunal requiring HM Treasury to disclose whether or not it held advice from the Law Officers on the compatibility of the Financial Services and Markets Bill with the Human Rights Act.

By a long-standing constitutional Convention – recognised in the Ministerial Code – the fact that the Law Officers have been consulted is not disclosed outside government without the consent of the Attorney General. This is specifically accommodated in the qualified exemption under section 35(1)(c) FOIA. The Tribunal, however, had upheld the Commissioner’s decision that the public interest favoured disclosure in this case.

Blake J held that, in so doing, the Tribunal failed to afford due weight to three factors. First, the fact that section 35(1)(c) aimed not to supplant the Convention, but to preserve it subject to a public interest test. Secondly, the views of experienced civil servants on the consequences of departing from the Convention. Thirdly, those factors counting against disclosure that were based on generalised rather than specific harm. The Tribunal had also failed to evaluate for itself the strength of the public interest in disclosure in light of the extensive legal advice that had already been publicised on this issue.

Given that similar factors have been discussed in a number of other High Court judgments referred to by Blake J, this judgment makes a notable contribution to the jurisprudence on the public interest balancing test.

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Reforming the Information Tribunal

August 5th, 2009 by Timothy Pitt-Payne QC

A 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.

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Disclosing Court Records under FOIA

June 16th, 2009 by Anya Proops

The Tribunal has recently handed down a decision in which it reached a number of important conclusions on the application of s. 32 FOIA (the courts records exemption) – Dominic Kennedy v IC & Charity Commissioners (EA/2008/0083). The appeal was concerned with a request which had been made to the Charity Commissioners for disclosure of information as to its inquiry into ‘the Mariam Appeal’. The appeal had been set up by George Galloway MP and its purposes were stated to include providing medical support to the Iraqi people. The Charity Commissioners refused disclosure of the requested information on the basis that it amounted to a court record and, hence, was absolutely exempt from disclosure under s. 32 FOIA.

 

The first issue which the Tribunal was called upon to determine was whether the word ‘document’ as it appears in s. 32 included electronic documents or merely hard copy documents. This was an issue in the appeal because, in contrast with all other exemptions, s. 32 focuses on information contained in ‘documents’. The Tribunal decided that the word ‘documents’ as it appears in s. 32 should be given an expansive interpretation so as to include both electronic documents and hard copy documents, not least because this is the result which Parliament must plainly have intended in enacting s. 32 (paras. 58-60). The Tribunal also held that s. 32 can apply, not merely to records relating to on-going inquiries, but also to inquiries that are closed (paras. 86-92).

 

In the course of its decision, the Tribunal accepted that it was giving s. 32 ‘a very wide scope’, which contrasted with the approach taken by the Tribunals to other exemptions in FOIA. However, it concluded that this was the required result given the need to respect the autonomy of the courts and those bodies which conduct statutory inquiries and arbitrations (para. 92).

 

The Tribunal went on to find that the general implications of its findings were that

 

a) If after a court decision or an inquiry closes then anyone can ask for the leave of the court or person conducting the inquiry for documents and the judge or authority can consider this but outside the realms of FOIA. Courts have rules for this and government inquiries also envisage similar rules. Therefore we would recommend that the Charity Commission considers adopting such rules; and

 

b) If documents are provided by other public authorities then a person can always make an FOIA request to them and they would not be able to rely on s.32(2)’ (para. 95)

 

The approach adopted by the Tribunal was consistent with the approach adopted in the earlier case of Szucs v Information Commissioner (EA/2007/0075). 11KBW’s Clive Sheldon appeared on behalf of the Commissioner in Kennedy.

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Disclosing Disciplinary Records Under FOIA

June 16th, 2009 by Anya Proops

The Information Tribunal has recently handed down a decision in which it upheld the Commissioner’s conclusion that information as to judges’ serious misconduct was exempt from disclosure under the personal data exemption provided for under s. 40(2)(c) FOIA – Guardian Newspapers v IC (EA/2008/0084). The decision is interesting not least because it highlights the Tribunal’s continuing reluctance to treat personal data concerning disciplinary matters as being disclosable under FOIA (see further on this point the earlier cases of Waugh v IC & Doncaster College (EA/2007/0060) and Roger Salmon v IC & King’s College (EA/2007/0135)). Notably, the Tribunal also held that the information in question was exempt under s. 31(1)(c) FOIA (administration of justice exemption).

The central issue in the appeal was whether disclosure of the information would contravene the first data protection principle (DPP1) contained in Schedule 1 to the Data Protection Act 1998 (DPA) and, hence, render the information absolutely exempt from disclosure under s. 40(2)(c) FOIA. The Tribunal held that DPP1 would be contravened. In reaching this conclusion, the Tribunal took into account in particular the facts that:

·         the DPA contained an exclusion which prevented judicial office holders themselves gaining access to data which revealed assessments of their ‘suitability to hold judicial office’ and it would be an odd result if third parties could access such data under FOIA but the data subjects themselves could not (para. 91);

 

·         some of the information would amount to sensitive personal data which would require that one of the stringent conditions contained in Schedule 3 be met in order for the disclosure to be in accordance with DPP1 (para. 92);

 

·         some information was already in the public domain as to the fact and scope of reprimands  or serious actions (para. 93);

 

·         the judges themselves would have a reasonable expectation that their disciplinary record would be kept confidential (para. 96);

 

·         there would a risk that judges would suffer great distress if the information were to be disclosed and, further, that their future authority and their future employment prospects would be jeopardised (para. 97).

 

In addition the Tribunal held that s. 31(1)(c) FOIA was engaged in respect of the information and that the public interest weighed in favour of maintaining that exemption. In reaching this conclusion, the Tribunal took into account in particular the fact that, in its view, disclosure of the information would undermine a judge’s authority while carrying out his or her judicial function and would otherwise disrupt the judicial process by encouraging legal representatives to seek adjournments by reason of alleged concerns about the judge’s good standing (para. 106). 11KBW’s Karen Steyn appeared on behalf of the Ministry of Justice.

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ABORTION STATISTICS AND PERSONAL DATA

May 27th, 2009 by Anya Proops

The Information Tribunal will this week begin hearing an important appeal against a decision of the Information Commissioner that certain abortion statistics relating to ground (e) abortions (abortions in cases of disability) were disclosable under section 1 FOIA. The appeal concerns in particular the interesting and difficult question of whether and to what extent ostensibly anonymous, statistical information can nonetheless constitute ‘personal data’ for the purposes of the personal data exemption provided for under section 40 FOIA. Before the Commissioner, the DH argued that, whilst the information in the abortion statistics does not per se identify any particular individual, because the statistics themselves relate to a relatively small number of cases, it would still be possible to identify particular patients and/or doctors who have carried out the abortions, particularly if the statistics were married either with other information held by the DH or already in the public domain. The Commissioner was not persuaded by that argument. He held that the statistical information was so far removed from the information on the Abortion Notification forms from which the information was derived that it no longer retained the attributes of personal data. The proposition that proximity to identifying information should be the barometer of whether particular anonymous information constitutes ‘personal data’ is likely to be hotly contested before the Tribunal. Watch this space for further news! Tim Pitt-Payne will be appearing on behalf of the Commissioner.

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DPA/FOIA overlap

April 14th, 2009 by Timothy Pitt-Payne QC

The 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.

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