Internet traffic data and debt collection: privacy implications

December 5th, 2012 by Robin Hopkins

Mr Probst was a subsriber to the internet service provider (ISP) Verizon. He failed to pay his bill. A company called ‘nexnet’, the assignee of Verizon’s debt, sought to collect the sums due. In doing so, it obtained and used his internet traffic data in accordance with its ‘data protection and confidentiality agreement’ with Verizon. Disinclined to pay up, Mr Probst argued that nexnet had processed his personal data unlawfully and that the relevant terms of its agreement with Verizon purporting to sanction that processing were void. The first-instance German court agreed with him, but the appellate court did not.

It referred a question to the CJEU concerning Directive 2002/58 (the privacy and electronic communications Directive), which seeks to “particularise and complement” the Data Protection Directive 95/46/EC.

Article 5(1) of the 2002 Directive provides confidentiality in respect of electronic communications and traffic data. Article 6(1) says that traffic data must be “erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication”, unless one of the exceptions in that Article applies. The relevant provisions here were Articles 6(2) and (5). The first allows traffic data to be processed for subscriber billing purposes – but only within a specified time period. The second allows for processing of such data by an ISP’s authorised agent only for specified activities and only insofar as is necessary for those activities. The provisions are worded as follows:

(2) Traffic data necessary for the purposes of subscriber billing and interconnection payments may be processed. Such processing is permissible only up to the end of the period during which the bill may lawfully be challenged or payment pursued.

…

(5) Processing of traffic data, in accordance with paragraphs 1, 2, 3 and 4, must be restricted to persons acting under the authority of providers of the public communications networks and publicly available electronic communications services handling billing or traffic management, customer enquiries, fraud detection, marketing electronic communications services or providing a value added service, and must be restricted to what is necessary for the purposes of such activities.

In Probst v mr.nexnet GmbH (Case C‑119/12), the Third Chamber of the CJEU essentially had to decide whether, and in what circumstances, Articles 6(2) and (5) allow an ISP to pass traffic data to the assignee of its claims for payment such that the latter may process those data. Its starting point was that Articles 6(2) and (5) were exceptions to the general principle of confidentiality with respect to one’s internet traffic data. They therefore needed to be construed strictly.

As regards Article 6(2), Mr Probst had argued that nexnet was not in the business of ‘billing’, but in the business of debt collection. The referring court’s view was that, for data protection purposes, those activities were sufficiently closely connected to be treated indentically. The Third Chamber agreed. It found that, by authorising traffic data processing ‘up to the end of the period during which the bill may lawfully be challenged or payment pursued’, Article 6(2) relates not only to data processing at the time of billing but also to the processing necessary for securing payment thereof.

As to Article 6(5), the Court held “that a persons acts under the authority of another where the former acts on instructions and under the control of the latter”.

The next question was essentially: what does a data protection-compliant contract between an ISP and a third party (an agent, assignee or someone to whom an activity is outsourced) look like? Must the ISP actually be able to determine the use of the data by the third party, including on a case-by-case basis, throughout the duration of the data processing? Or is it sufficient that its contract with the third party contains general rules about the privacy of telecommunications and data protection and provides for data to be erased or returned on request?

The Court emphasised that outsourcing or assignment may not result in lower levels of protection for individuals’ personal data (paragraph 26). The contract must be sufficiently specific. It must, for example, provide for the immediate and irreversible erasure or return of data as soon as knowledge thereof is no longer necessary for the recovery of the claims concerned. The controller (here, the ISP) must be in a position to check and ensure compliance with the privacy and data protection measures agreed under the contract, and the contract must provide for the ISP to be able to request the return or erasure of the data.

The issue in the Probst case (how to balance privacy and legal rights to monies owed) has obvious parallels with measures to combat copyright infringement (how to balance privacy and legal rights to intellectual property). I have blogged on copyright and privacy issues here and here.

The Probst judgment is an important confirmation of general principles about privacy with respect to one’s internet data. The implications for all sorts of contracts involving such data are clear – cloud computing arrangements, for example (on which, see Panopticon’s post here).

It is increasingly important that those contracts provide for specific and enforceable safeguards against unlawful processing of personal data. The Data Protection Directive will change before too long, but these principles will not.

Robin Hopkins

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Retention and disclosure of police caution data infringe Article 8

November 14th, 2012 by Charles Bourne

The European Court of Human Rights yesterday handed down a Chamber judgment in M.M. v United Kingdom (Application no. 24029/07) declaring that the arrangements for the indefinite retention of data relating to a person’s caution in a criminal matter and for the disclosure of such data in criminal record checks infringe Article 8 of the ECHR. Although the Court recognised that there might be a need for a comprehensive record of data relating to criminal matters, the indiscriminate and open-ended collection of criminal record data was unlikely to comply with Article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable and governing the use and disposal of such data, particularly bearing in mind the amount and sensitivity of the data. 

The case arose from a family dispute in Northern Ireland in the course of which the applicant, a grandmother, took her grandson away from his parents for two days before returning him unharmed. This resulted in her receiving a caution for child abduction in November 2000. In 2003 the police advised her that her caution would remain on record for only five years, i.e. until 2005. However, following the Soham murders and the Bichard report, there was a change of policy whereby any convictions and cautions where the victim was a child would be kept on record for the offender’s lifetime. 

Until 1 April 2008, requests for disclosure of criminal record data in Northern Ireland were made on a consensual basis. Disclosure took place in accordance with well-established common law powers of the police. Provisions of the Police Act 1997, introduced in England and Wales in 2006, were applied to Northern Ireland in 2008. Section 113A required a criminal record certificate to be issued on request and payment of a fee, to include details of all cautions and convictions whether spent or not, if the request was for stated purposes including that of assessing the suitability of persons to work with children and vulnerable adults.

Disclosure of the applicant’s caution caused her to be turned down for jobs as a family support worker in the social care field. She complained that the indefinite retention and disclosure of the caution data infringed her ECHR rights.

The Court noted that both the storing of information relating to an individual’s private life and the release of such information come within the scope of Article 8 § 1. The question was whether the police records contained data relating to the applicant’s “private life” and, if so, whether there had been an interference with her right to respect for private life. The data was both “personal data” and “sensitive personal data” within the meaning of the Data Protection Act 1998 and “personal data” in a special category under the Council of Europe’s Data Protection Convention. Although a person’s criminal record was public information, systematic storing of data in central records made them available for disclosure long after the event. As a conviction or caution receded into the past, it became a part of the person’s private life which had to be respected. The applicant’s voluntary disclosure of the caution to her prospective employer did not deprive her of the protection afforded by the Convention where employers were legally entitled to insist on disclosure. Thus Article 8 applied, and the retention and disclosure of the caution amounted to an interference.

To decide whether the interference could be justified under Article 8 § 2, the Court considered the legislation and policy applicable at the relevant time and since. It highlighted the absence of a clear legislative framework for the collection and storage of data and the lack of clarity as to the scope, extent and restrictions of what in Northern Ireland were originally common law powers of the police to retain and disclose caution data. There was also no mechanism for independent review of a decision to retain or disclose data. The provisions of the Police Act 1997 which came into force in Northern Ireland on 1 April 2008 created some limited filtering arrangements in respect of disclosures. However, in providing for mandatory disclosure under section 113A, no distinction was made on the basis of the nature of the offence, the disposal in the case, the time which had elapsed since the offence or the relevance of the data to the employment sought.

 The Court decided that the cumulative effect of these matters was an insufficiency of safeguards in the system to ensure that data relating to the applicant’s private life had not been, and would not be, disclosed in violation of her right to respect for her private life, and therefore the retention and disclosure of data was not “in accordance with the law” for the purpose of Article 8 § 2. The Court therefore did not go on to determine whether the interference was “necessary in a democratic society” for one of the stated aims, or whether there had been any infringement of Articles 6 and 7.

 Charles Bourne

 

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Update on recent Tribunal decisions part 3: personal data of public officials and relating to court proceedings

November 13th, 2012 by Robin Hopkins

I posted a few days ago about some recent decisions of the First-Tier Tribunal on requests under FOIA and the EIR for personal data. There have been a number of decisions on this issue of late. The following are of note, as they illustrate the types of issues very frequently encountered by public authorities. They also illustrate the nuanced and forensic approach taken by some Tribunals. There may not be a presumption in favour of disclosing personal data, but public authorities should beware assuming that Tribunals will be equally cautious about disclosing all types of personal data.

Chief Constable appointments: partial disclosure ordered

The Appointments Committee of Dyfed Powys Police Authority assessed and interviewed the candidates for the office of Chief Constable. There were two candidates. The Committee was advised by a representative from HM Inspector of Constabulary who was very critical of one of the candidates, leaving the Committee feeling that it had no option but to appoint the other. Committee members complained about the HMIC representative, including to the Home Office. The issue entered the public domain. The unsuccessful candidate requested copies of relevant correspondence.

The issues in Roberts v IC and Dyfed Powys Police Authority (EA/2012/0032) were whether s. 40(1) or alternatively s. 40(2) applied.

The IC raised s. 40(1) belatedly, arguing that the withheld documents were the requester’s own personal data: the lateness “vexed” the Tribunal, and in any event the s. 40(1) argument was rejected, as the Durant conditions of biographical significance and focus were not met. The IC had sought to apply the definition of “personal data” too widely in a way that went beyond the Durant restrictions.

The s. 40(2) argument concerned the personal data of (a) members of the Appointments Committee (the Tribunal’s answer: disclosure would breach the data protection principles, as they were unpaid public representatives who were not at fault), and (b) the HMIC representative (the Tribunal’s answer: disclosure was for the most part ordered, given the representative’s role, the publicised allegations about her conduct and the fact that disclosure would result in minimal incremental distress).

The case illustrates the ongoing dominance of Durant, the need to distinguish between types of data subject and the relevance of well-founded allegations of wrongdoing or poor conduct by public officials.

Redacting officials’ names: lack of legitimate interest in disclosure

Armit v IC and Home Office (EA/2012/0041) is one of two appearance by the UK Border Agency in this post. The request was for copies of guidance relating to which light vehicles/drivers should be stopped and interviewed and what circumstance should lead to the vehicle being detained whilst a search is undertaken and identity checks undertaken, as well as for statistics about such ‘stops and searches’ carried out at Dover Port. UKBA’s refusal was based in part on s. 40(2): it sought to redact the names of the officials in a document entitled ‘Tourist Selection Indicators and Selection Techniques’. The Tribunal was not very impressed by the arguments that officials would not have expected public disclosure of their names. However, fatal to the requester’s case was the failure to identify a legitimate interest in public disclosure of the names of those officials. The Tribunal concluded that:

“We do not accept the argument that the officials would not have expected their names within the document to be made public and were not given compelling evidence of this. We were given no information as to their specific grading but they were described in the document as ‘lead contributer’ and ‘lead postholder’. They clearly have some responsibility in relation to the work.  We were given no compelling evidence that disclosing their names would result in victimisation, insult or any form of danger.  However, we do accept that the officials would prefer not to have their names identified and that might in itself represent a certain right and freedom or legitimate interests in itself. In any event, to process personal data, it needs to be necessary to pursue the purposes of legitimate interests pursued by others.  In this case, we do not find that the Appellant has shown any legitimate interest in the names of the officials being disclosed to the public under FOIA. We conclude that the information is therefore exempt from disclosure.”

The case illustrates the importance of requesters making out a legitimate public interest in knowing the identity of officials whose names appear in requested documents where those officials are not obviously senior enough for a general accountability argument to suffice.

Neither confirm nor deny: involvement in court proceedings

In Mahajan v IC (EA/2011/0240), the requester sought information about the conduct of criminal proceedings in which he was involved, in particular relating to note-taking, recording, legal aid payments, contributions made by the judge during the hearing and communications between the requester and the court’s administrative staff.

The IC found that the request could be refused on the grounds of s. 40(5) FOIA, the “neither confirm nor deny” exemption for personal data. The argument was that the individuals identified in the requested information would have a legitimate expectation that information that might or might not confirm whether they had been part of an investigation and/or court proceedings would not be released.  A confirmation or denial would, it was argued, reveal some information which was not already in the public domain and was not reasonably accessible to the general public. It would also publicise the existence or otherwise of an investigation and court proceedings involving those named parties.

For some parts of the request, the Tribunal agreed: any answer would reveal personal data the public disclosure of which would breach a data protection principle. For the most part, however, the Tribunal disagreed with the IC. A major aspect of its reasoning was that much of the information related to a public court hearing: therefore, disclosing that an individual had been a judge in that hearing, or had appeared as an advocate would not breach any of the data protection principles. In addition, some of the “data subjects” were in fact not living individuals but commercial entities.

This case illustrates the importance, when taking a “neither confirm nor deny” stance, of assessing why mere confirmation or denial of whether the requested information is held (as opposed to disclosure of that information itself, if held) would breach a data protection principle.

Interestingly, while the Tribunal disagreed with the IC on a number of the s. 40(5) FOIA arguments, it went on to agree with the public authority that those parts of the request were plainly vexatious and could be refused on s. 14(1) FOIA grounds.

Qualifications of legal advisor

In Hodson v IC (EA/2012/0084), the Tribunal decided that information about the professional qualification of an individual fulfilling the role of Legal Adviser to Scunthorpe Magistrates’ Court should be disclosed but that he was not entitled to receive information about the Adviser’s other academic qualifications. Its nuanced approach (i.e. approaching different types of personal data differently) is summarised at its paragraphs 18 and 19:

“In view of the functions performed by Legal Advisers in a Magistrate’s Court, and the impact they are capable of having on those appearing before the court, we believe that there is a strong public interest in knowing that anyone fulfilling the role has the qualification of barrister or solicitor. That is to say the qualification that the Ministry of Justice holds out Legal Advisers as possessing. We believe that, were that information not to be a matter of public record, there would be strong public interest in its disclosure and that this would outweigh the individual’s right to privacy.

It follows that, were the position of Legal Adviser to be held by a person having any other qualification, there would be an equally strong public interest in that qualification also being publicly known. And that would apply whether the qualification was a non-legal one or a legal one that was less than full qualification as a barrister or solicitor. Examples of the latter would include a law degree, Chartered Institute of Legal Executives qualification, or completion of a Legal Practice Course or Bar Professional Training Course. But if the Legal Adviser holds the professional qualification of barrister or solicitor then the public interest in information about any other qualification, whether legal or non-legal, academic or professional, is greatly reduced. Disclosure, in those circumstances would constitute an unwarranted interference with the individual’s rights and freedoms.”

Nationality of opponent in litigation

Someone referred to as AF brought legal proceedings against Mr Philip Brown. Mr Brown incurred considerable costs as a result. He hoped to recover those costs if he won the case. In practice, he could only do so if AF was a British national; if he was a Nigerian national, he was thought likely to return there, putting him effectively beyond the reach of UK jurisdiction for enforcing any costs order. Mr Brown asked the UK Border Agency for “official information showing whether or not [Mr AF] is a UK citizen, or whether he is a Nigerian citizen who is in the UK on some sort of temporary permission”. The request was refused on s. 40(2) FOIA grounds; the Commissioner agreed.

The Tribunal in Philip Brown v IC (EA/2012/0094) also agreed. The requester argued that this was not “personal data”: Mr AF cannot be identified by his immigration status alone since that simply discloses whether he is one of 60  million people (if he is a UK national), or one of 120 million people (if he is a Nigerian national). The Tribunal rejected this as misconceived:

“What he is saying, in effect, is that if an individual is already known to the requester and

can be identified by him through information already held, then any additional information such as his immigration status, cannot be personal data because that does not identify him. Taken to its logical conclusion, it would mean that the Appellant could ask a public authority to disclose a range of information about Mr AF (for example, whether he is gay or straight, a Christian or a Muslim, divorced or single), on the basis that such information would only disclose the category of people to which Mr AF belongs and would not itself identify him.”

The requested information was “personal data” in Durant terms.

The requester also sought to rely on s. 35(2)(a) of the DPA, arguing that disclosure is “necessary for the purposes of, or in connection with, legal proceedings” and therefore that the data protection principles would not be breached. He said he needed the information in order to seek a protective costs order in accordance with the CPR.

The Tribunal considered the meaning of “necessary” in this context: it rejected the IC’s argument that “necessary” means “relevant and proportionate”, preferring Mr Brown’s view that it meant “indispensable, requisite, needful, that which cannot be done without”. The problem was that the requested information would not help with any application for a protective costs order. Condition 6(1) would not be met and s. 40(2) was upheld.

Robin Hopkins

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Update on recent Tribunal decisions part 2: personal data of “low inherent sensitivity”

November 8th, 2012 by Robin Hopkins

The “personal data” provisions under s. 40(2) FOIA and regulation 13 EIR can often be very difficult to apply, particularly in light of the Durant “notions of assistance”, namely biographical significance and focus. It is correspondingly difficult to predict how such arguments will fare before the Tribunal. Two recent cases offer good illustrations. Both saw the Tribunal order disclosure of property-related personal data which was deemed to be of “low inherent sensitivity”.

Council housing

Exeter CC v IC and Guagliardo (EA/2012/0073) concerned a request for the addresses of all residential properties owned by or leased or rented to the Council. The Council refused the request. It was accepted that addresses constitute “personal data”, but the Commissioner considered it to be personal data of “low inherent sensitivity”. He found that disclosure would not breach any of the data protection principles. He ordered disclosure, subject to an exemption for addresses of properties allocated for housing those in need of protection.

The decision notice was upheld on appeal. The following aspects of its decision are notable (Tribunal comments appearing in italics).

As to the Council’s arguments for withholding the addresses:

  • The Council had conducted a survey of residents’ attitudes to such disclosures, but the particular questions and answers did not assist the Tribunal.
  • There was no clear evidence on the extent to which Council properties were already visually identifiable as such.
  • “The Tribunal observes that who owns property is not a private  matter. It has to be publicly recorded and available by way of Land Registry Records (although there is a fee for this information). There are many other ways that the ownership becomes public (e.g. local knowledge, press articles when properties are constructed, news articles and planning records).The Tribunal is satisfied that a tenant cannot therefore have a legitimate expectation that this information would not be disclosed.”
  • The Council argued that disclosure of the list of addresses would identify the residents as Council tenants and, as such, vulnerable, for example to being targeted by those wishing to prey upon individuals who were in financial difficulty. There was, however, no evidence before the Tribunal that disclosure would add to the pre-existing risk of such behaviour.
  • The only information (additional to the fact of the address) that can be discerned about any particular data subject by the disclosure of the disputed information was that they or their predecessor may have been financially unable to meet their housing needs at some time.

As to the arguments for disclosure:

  • “Additionally we are satisfied that there is a proper distinction to be drawn between those living in a Council owned asset and private accommodation, because the Council are accountable to the public for the way  they manage those assets and execute housing policy whereas a private landlord has no such additional public responsibility and that this must impact upon the reasonableness of any expectation that the Council would not publish this information.”
  • Disclosure would enhance transparency in allowing the public to be aware of the Council’s assets (i.e. its housing stock). By knowing how many properties the Council owns and where, the public would be enabled to scrutinise the distribution of Council properties between localities, analyse whether factors (such as levels of educational attainment) are correlated with the extent of Council owned housing in a given area.
  • Knowing the individual addresses would enable the public to see how Council properties are maintained, their state of repair and assess whether areas are under or over provided for.
  • “The Tribunal adds that such disclosure would also enable the public to review the type of housing stock owned and used by the Council and ascertain whether it could be used more efficiently to meet better the      needs of those in housing need. Analysis of the extent to which private      rentals are over or under used and whether this provides value for money      would also be enabled by disclosure of this information.”

Overall, the Tribunal agreed that addresses constitute personal data of “low inherent sensitivity”.

This is the second such case before the Tribunal. The Tribunal in Neath Port Talbot v IC (EA/2011/0037) ordered disclosure of the same type of information in another, less fully reasoned decision last year. While no First-Tier Tribunal decision is binding, the case for withholding such information seems nonetheless increasingly difficult to make out.

Building control applications

Martin and Karen Sharples v IC (EA/2012/0076) is a second recent case in the disclosure of personal data has been ordered in light of its “low inherent sensitivity”. The requesters sought information about building control applications made to Bolton MBC relating to roof conversions to residential properties in a specific cul-de-sac. The Council refused to provide the building control records and site visit notes, relying upon regulation 13 EIR (personal data). The issue was whether the residents/owners involved in those applications could be identified from the redacted records and notes and, if so, whether disclosure would breach any of the data protection principles.

The requesters argued that while they knew enough to identify the property owners from the requested information, a member of the public would not. The Tribunal was satisfied, however, that the owners could be identified – particularly given the availability of Land Registry searches, Google Earth and other ways to find out who lives where.

Like the Council residence addresses in the Exeter CC case however, this application information was considered to be personal data of “low inherent sensitivity”. Disclosure would not breach the data protection principles, in light of the following factors:

  • The information was similar to the sort of information routinely provided to estate agents and in planning applications (which are made public)
  • It would be discernible to a surveyor when the house changes hands
  • Some of the information was visible to the naked eye
  • Much of the information constituted confirmation of normal practice of construction to a fixed standard
  • The data subjects had not been told they could expect confidentiality
  • There was a legitimate public interest in transparency, in particular in being assured that the Council had properly assessed compliance whether the relevant regulations had been complied with

Many requests for personal data fail because the requester has not made out any or any sufficient legitimate interest in public disclosure of information impacting upon privacy. Sharples is interesting in that the emphasis worked the other way: the public interest does not appear to have been very pressing, but the personal data was sufficiently anodyne for disclosure to be the order of the day.

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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Local authorities and NHS Trusts (1): compromise agreements, officers’ identities and gagging clauses

September 17th, 2012 by Robin Hopkins

From a FOIA perspective, local authorities and NHS Trusts have this in common: both frequently receive requests for details of compromise agreements and other details about individual officers’ employment and disciplinary records. Three recent cases before the Tribunal confirm the general trend that – absent case-specific and well-evidenced arguments – the Commissioner and Tribunal re reluctant to order disclosure of such personal data, notwithstanding the context of public sector employees.

First, Trago Mills v IC and Teignbridge DC (EA/2012/0028) involved a request for the details of the severance package of a senior planning officer. Based on his dealings with that officer during a number of planning applications, the requester suspected that the stated reason for the officer’s departure from the Council (i.e. early retirement/redundancy) was in fact a ‘shield’, and that the officer had left for reasons of misconduct. The requester had also asked for information on that officer’s handling of planning applications in 2007.

The Council refused the request for the severance information on s. 40(2) grounds. The Commissioner and the Tribunal agreed: the requester’s suspicions were not borne out by the evidence, and the Council had a duty to respect its former employee’s reasonable expectation of privacy. The Tribunal also found that the Council held no further information within the scope of the request given the thoroughness of its searches. I represented the Council in this case, so no further commentary from me. For a detailed analysis of the issues, see the Local Government Lawyer’s article here. 11KBW’s Chris Knight represented the Information Commissioner.

Second, McFerran v IC (EA/2012/0030) involved a police search of a Council residence owned by Shropshire County Council. At the police’s request, two junior Council officers were present, but they had not been involved in any of the decision-making. The requester had concerns about the search and about what the Council may have told the police in the lead-up to the search. He requested the names of the two junior officers as well as their immediate superior. The Council refused, relying on s. 40(2).

The Commissioner ordered disclosure of the name of the more senior officer, but not of the two juniors. The requester’s appeal against the latter finding was dismissed, with the Tribunal observing that “although… there is clearly a legitimate public interest in transparency of activity by public authorities, which impinges on the personal freedom of householders, there is insufficient information provided to add significant weight to the general public interest in transparency in public affairs. The Appellant has not satisfied us, either, that his attempts to have the matter investigated are being thwarted by the absence of the names of the individuals in question. If there is sufficient information about the event to interest those responsible for an investigation the absence of names will not deter them.”

The McFerran decision illustrates that, when it comes to junior officials, general transparency considerations will usually not suffice for the disclosure of personal data: case-specific factors will be needed. Local authorities should, however, avoid the blanket non-disclosure of the names of all officers below a certain level of seniority. What matters is what work they have done, rather than what grade or band they are at.

McFerran also illustrates that requesters will often face the following sorts of objection: even if you have valid grounds for concern or complaint about individuals, there are ways of addressing those without disclosure of personal data to the world at large.

The third recent s. 40(2) arose in the context of NHS Trusts and allegations of Trusts using “gagging clauses” in compromise agreements to silence criticism or whistleblowing from departing employees. In Bousfield v IC and Six NHS Trusts (EA/2011/0212; 0213; 0247; 0250; 0251; 0252), the requester was interested not in any specific individual’s compromise agreement, but in the use of such agreements by NHS Trusts more generally. He asked: “Please provide copies of all compromise agreements you have entered into with doctors of any grade. Please also provide a list of exploratory or illustrator issues covered by the compromise agreements (ie the reasons the compromise agreements were entered into)”. One Trust refused to confirm or deny whether it held such information, relying on s. 40(5) (the argument being that there was a risk of identifying any individuals involved, which would breach the first data protection principle) and s. 43(3) (the argument being that confirmation or denial would prejudice the Trust’s commercial interests). Other Trusts also refused the requests, relying on a combination of s. 40(2) (personal data), s. 41 (actionable breach of confidence), 42 (legal professional privilege) and 36(2) (prejudice to the effective conduct of public affairs).

The Commissioner agreed, and the Tribunal has dismissed the requesters appealed. One Trust had conceded that, if there was evidence of gagging clauses being used to prevent former employees from raising any issues concerning patient safety, there would be enormous public interest in disclosing such practices. The decisive issue in this case, however, was that the Tribunal was satisfied on the evidence that no such clauses were being used by these Trusts. Therefore, it concluded that “it is entirely sympathetic to the overall concern that the Appellant feels with regard to the apparently increasing prevalence of gagging clauses but does not find that issue or concern in any way material to the matters which the Tribunal in fact has had to consider”.

It seems that, if the evidence had borne out the requester’s concerns, the analysis may have been very different. This ‘gagging clause’ issue has been considered at Tribunal level before: Bousfield v IC (EA/2009/0113). It may yet resurface.

Robin Hopkins

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Section 7(9) DPA is about privacy, not employment disputes

August 22nd, 2012 by Robin Hopkins

Disputes about subject access requests under section 7 of the Data Protection Act 1998 only rarely make their way to the Higher Courts. The leading – and often bedevilling – case of Durant is, for example, now 9 years old. Given this scarcity of precedent from the High Court and Court of Appeal, up-to-date illustrations of the judiciary’s approach to the DPA are most usefully sought in County Court judgments – see for example Panopticon’s post on the case of Elliot v Lloyds TSB Bank from earlier this year.

The most recent notable judgment is that of the County Court (HHJ May QC) in Professor Karim Abadir v Imperial College.

The applicant is an eminent econometrics professor employed by Imperial and has been since 2005. In 2011, Professor Abadir took issue when another professor at Imperial began to assess the academic staff by means of subjective metrics. The applicant objected to this, considering those metrics to be inappropriate for the academic staff in his department, and sought disclosure of the discussions that had taken place prior to their implementation.  Aggrieved, he made a subject access request. He was given some information, apparently of the human resources variety in the main. He objected to the nature of some of the comments which had been circulated about him and took the view that some of the emails he sought had been deleted. Imperial informed him in July that it would be implementing an email system upgrade and change of server in August. The applicant feared that some of the emails he wished to obtain would be permanently deleted. He sought an injunction preventing the systems work and requiring Imperial to search for and disclose to him “every document where reference is made” to him, including in deleted files.

Professor Abadir’s application was refused for a number of reasons.

Two reasons were matters of form, in that they related to what was missing from the application. The application was “objectionable” on the grounds that the applicant had not specified the nature of the underlying claim he would bring in due course. Also, assuming the underlying intended claim to be under section 7(9) of the DPA, the Judge expected the applicant to provide a draft order specifying exactly what information or searches he sought. The applicant had not done so. Instead, he asked for “generalised search of all computer systems, to include deleted data”.

Two further reasons were fatal in substantive terms. One was that there was no evidence to support the claim that the systems work would lead to the permanent loss of relevant emails. In fact, Imperial’s evidence contradicted that. There was thus no urgency to justify granting an injunction.

The final reason concerned the purpose or motive behind Professor Abadir’s claim. It was confirmed that his purpose was “to obtain disclosure of documents for purposes of deciding how to frame and pursue against Imperial College employment grievances which Prof Abadir believes he has. Put this way, the process by which documents are sought, given the purpose to which they are intended to be put, is much more akin to an application for pre-action disclosure.  It is disclosure, not right of access to personal data, which Prof Abadir is really seeking from Imperial College.”

On this point, HHJ May QC concluded that “disclosure is sought is not for the purposes of protecting Prof Abadir’s privacy but for the purposes of pursuing a claim against his employer.  To use the provisions of the DPA to pursue such a purpose is an abuse: Ezsias v The Welsh Ministers”.

Unusually, the Judge also awarded the University costs on an indemnity basis. In part, this was because the applicant had failed to identify the underlying cause of action, or to contact Imperial to make enquiries about its server changes before issuing his application for an injunction. HHJ May QC also concluded as follows: “to the extent that the injunction was sought for the purposes of supporting an intended action for DPA disclosure, it was clearly misconceived.  To seek disclosure under the DPA for the purposes of considering an employment claim is an abuse.  In any event, as DPA proceedings are for the purposes of protecting privacy, deletion/destruction of documents would not be contrary to those purposes, quite the reverse.”

It is apparent, therefore, that Courts continue to be unimpressed by the pursuit of subject access requests motivated by prospective litigation, and that they tend to see privacy concerns (rather than employment grievances) as the underlying rationale for the right of access to personal data. This will be welcomed by many data controllers.

Anya Proops appeared for Imperial College.

Robin Hopkins

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Important new privacy judgment: police retention of protestor’s data not an Article 8 infringement

June 1st, 2012 by Robin Hopkins

The Admin Court (Gross LJ and Irwin J) has handed down judgment this week in Catt v Association of Chief Police Officers and Commissioner of Police of the Metropolis [2012] EWHC 1471 (Admin). It is an extremely important judgment on Article 8 ECHR in the context of personal information retained for policing purposes. It is also notable for its analysis of protest as an inherently public activity.

The background

ACPO launched a National Domestic Extremism Database containing information provided by police forces. The Metropolitan Police subsequently assumed responsibility for the database. The database contained information relating to the attendance by the claimant (an 87-year old protestor of good character) at various political protests made by a group called “Smash EDO”. Smash EDO opposes a US arms manufacturer with a factory in Brighton; its activities have often involved violent disorder and criminality (though apparently not by the claimant), necessitating a substantial police presence. Police officers overtly gathered information (including photographic and video material) at those protests. They then compiled reports on the protests, identifying a number of individuals including the claimant. The information at issue in this case comprised those sorts of reports – they were about incidents rather than the claimant per se, although the claimant was identified in the reports. The defendants retained that information pursuant to the statutory Code of Practice on the Management of Police Information, made under the Police Acts 1996 and 1997, and associated Guidance on the Management of Police Information.

The issues

The overarching issue was whether this infringed Mr Catt’s rights under Article 8 ECHR, the right to respect for private life.

It is important (if not entirely surprising) to note how the parties and the Court saw Article 8 and the Data Protection Act 1998 interacting (see paragraph 6(iv)). All agreed that the DPA was theoretically in play, but added nothing: if the Article 8 claim succeeded then the DPA claim was not needed; if Article 8 was engaged, but the interference was justified, then the DPA claim would automatically fail; if Article 8 was not engaged, the prospects of success under the DPA were negligibly remote.

The issues were therefore: (i) whether there was an interference with the claimant’s rights under Article 8(1), and (ii) if so, whether this interference was justified. The Court said no on both counts, by application of the authorities to three crucial findings.

Crucial findings

First, the Court accepted the need for such information to be retained by the police. Gross LJ said this at paragraph 19:

“… the use of intelligence is a fundamental policing tool.  Investigators need the ability to identify relationships within protest groups. Likewise, they need to be able to identify individuals associated with the use of particular tactics, together with those with a propensity to violence, disorderly behaviour and organised coordinated actions.  Although Mr. Catt has not been convicted of any offence, the evidence, which again I accept, is that his close association with violent members of Smash EDO and knowledge of this association is of intelligence value.  Such knowledge forms part of a “far wider picture of information”… needed by the police, inter alia, to investigate incidents of criminality and to assist the policing of future events.”

Secondly, “the essential nature of such activity [protesting] is that it is of a public nature. Indeed, its very object is to make others aware of his views and the causes to which he lends his support” (paragraph 36).

Thirdly, given the violent disorder which characterised Smash EDO’s activities, it was reasonable to expect the police to gather and retain such information. This was especially so as this information had been gathered by over rather than covert policing.

Issue 1: Article 8(1) neither engaged nor infringed

Given those findings, the Court concluded that the claimant’s rights under Article 8(1) were not engaged at all. The claimant’s reliance on R (Wood) v Commr of Police of the Metropolis [2009] EWCA Civ 414 did not assist: the facts were different, and it would be “unreal and unreasonable” to find an infringement of Article 8(1) in the present case.

Issue 2: interference would in any event be justified

The Court went on to conclude that even if there had been an interference with Article 8(1), this would be justified. The claimant had argued inter alia that he was not personally suspected of criminality and that there was no democratic oversight of the database system. The defendant argued inter alia that, given Smash EDO’s activities, the retention of this sort of information – police reports as opposed, for example, to photos or video material – was reasonably necessary and proportionate.

Gross LJ (with whom Irwin J agreed) had “no hesitation in concluding that any interference with Mr. Catt’s rights was amply justified under Art. 8.2”.

His reasons included the following (paragraph 64):

“Any interference with Mr. Catt’s Art. 8.1 rights was at the margins. The reports, the product of overt policing, did no more than record Mr. Catt’s public activities, the very object of which was to convey his views to as wide an audience as possible.  The reports were compiled and retained for intelligence purposes, in accordance with the Code and the Guidance, with a view to an appropriate police response to a campaign marred by serious, persistent criminality and posing a significant public order problem.”

Irwin J agreed that there was no expectation of privacy here, applying the approach in Campbell v MGN [2004] UKHL 22.

At paragraph 70 he added that it was not easy to see “… how it can affect the engagement of Art 8.1 that the material is recorded by police officers as opposed, say, to journalists; or collated and held within the National Extremism Database, as opposed to a local history archive in the town where the demonstrations have been held.  The latter distinction was advanced by Mr Owen (“the entries were not recorded on any database…”).  The issue is not whether the individual concerned likes or dislikes the thought of the data being held by this or that body: the issue is whether a reasonable expectation of privacy arises.  In my judgment, it does not arise in respect of any of the information in this case.”

Irwin J did, however, add this observation at paragraph 70, which might give rise to interesting arguments in future cases on such issues:

“Different questions might arise if material recorded in that context were collated with material which was private in its nature.  That does not arise in this case.”

What about ongoing retention of this information?

Gross LJ thought it sensible for the police to review its retention of this sort of information when the Smash EDO campaign concludes, but he agreed with Irwin J’s comments at paragraph that 73:

“… even when the Smash EDO campaign ends, it may yet be justifiable to retain some or all of this information.  The picture here is that there are connections between this group and parts of the animal rights movement, active before this group was formed.  It may be a legitimate function of intelligence to keep records of this group after it has ceased to be active, the better to understand the risks associated with after-coming groups with overlapping membership.  To my mind, there is no expectation that a review at a suitable point in the future will conclude otherwise.”

Robin Hopkins

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Section 40 FOIA, NCND and the public interest

June 1st, 2012 by Robin Hopkins

The requester (anonymised for the purposes of the decision) in Mr A v IC and The Health Professions Council (EA/2011/0223) asked for information about the response given by a named registrant to an investigation allegedly being carried out by the HPC into that registrant’s fitness to practice. The IC found that a ‘neither confirm nor deny’ response was appropriate, given that to confirm or deny (NCND) whether or not the HPC held the information requested would in and of itself disclose to the public whether there a complaint as to the registrant’s fitness to practise had been made. This would breach the first data protection principle. Section 40(5)(b)(i) FOIA therefore applied.

The Tribunal agreed. Curiously, it approached its task under section 58 FOIA thus: “The Tribunal does not take the IC’s decision again, rather its task is to consider the Decision Notice and to consider whether it can be impugned on legal grounds.”

Its decision turned largely on the usual features of a request for personal data: privacy implications, reasonable expectations and so on. The Tribunal’s decision does, however, contain a number of points of interest concerning the correct approach to section 40.

First, when judging whether, for section 40(5) purposes, confirmation or denial would breach any of the data protection principles, the appropriate reference point was disclosure to the public, not disclosure to the individual requester, given the overall wording of section 40 and the ‘motive blind’ approach to FOIA. The Upper Tribunal in All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner [2011] UKUT 153 (AAC) appeared to think otherwise, but its observation was obiter, and the Tribunal in the present case declined to follow it.

Secondly, it followed that for the purposes of condition 6(1) of Schedule 2 to the DPA (which refers to the “legitimate interests of the … third party or parties to whom the data are disclosed”), the appropriate reference point was again the public. Public rather than private interests are what count for condition 6(1) purposes.

Finally, the NCND provisions of section 40(5) do not appear in the list of absolute exemptions at section 2(3)(f) of FOIA. Does this mean the public interest test must be applied, even where – as the Tribunal had found – disclosure would breach the first data protection principle? The Tribunal agreed with the IC and the HPC that the answer is ‘no’. It followed Heath v IC (EA/2009/0020) in finding that the word ‘provision’ at section 2(1) FOIA is sufficiently ambiguous (as to whether it means a section of FOIA as a whole, or rather subsections) to admit of a purposive interpretation. In these circumstances, this allowed for data protection principles to be given primacy; no public interest question under section 2(2) of FOIA arose.

Robin Hopkins

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NICK GRIFFIN IN THE TRIBUNAL: APPLICANT BLINDNESS, THE “JOURNALIST’S ROUTE” AND ARTICLE 10

February 10th, 2012 by Robin Hopkins

BNP leader Nick Griffin was convicted in 1998 for publishing material likely to stir up racial hatred. In 2009, Ian Cobain, an investigative journalist at The Guardian, requested sight of all Crown Prosecution Service papers relating to that prosecution. The Commissioner upheld its refusal. In Cobain v IC and Crown Prosecution Service (EA/2011/0112 & 0113), the Tribunal considered 3 exemptions, namely ss. 40(2), 32(1) and 30(1) of FOIA. For the most part, Mr Cobain’s arguments prevailed.

The decision is notable – indeed, essential reading – for a number of its key points. For example: when it comes to journalists requesting sensitive personal data, FOIA is not “applicant blind”. More generally, the decision affirms the importance of FOIA in facilitating investigative journalism. The approach to Article 10 ECHR from the Kennedy “report” is boldly affirmed. General guidance on s. 30(1) is set out. I’ll look at the key points from each exemption in turn. The decision is worth quoting in some detail.

Section 40(2) (personal data)

A number of important points emerge. First, in general, just because information emerged during evidence in a public trial, this does not mean it should automatically be disclosed under FOIA:

“Much of the information… was freely publicised at the trial in 1998… Where the public interest is engaged (as here where s. 30(1)(c) is invoked) it does not by any means automatically follow that such publication in the past determines the question of disclosure today. Most witnesses are entitled to expect that their exposure to public scrutiny ends with the conclusion of their evidence. Those who make statements do so in the expectation that, if not used at trial, they will not surface later.”

Secondly, just because information is in a prosecution file, it does not follow that it is necessarily personal data. The Commissioner was criticised for insufficiently granular analysis:

“It was clear that the broad and unparticularised approach adopted in the First Decision Notice could not be upheld. The fact that it is information held in a file assembled for the purposes of criminal proceedings against Mr. Griffin (see DPA s.2(g)) does not make it sensitive personal data, unless it is personal data in the first place.”

Some of the disputed information was therefore outside s. 40(2) because it was not personal data in the first place. Other information, however, was sensitive personal data. This meant that not only would the usual conditions need to be met (fairness, lawfulness, condition 6(1)) but a Schedule 3 condition was also mandatory. Those can be difficult to meet – unless you are a journalist. Condition 10 triggers the Data Protection (Processing of Sensitive Personal Data) Order 2000. This contains particular “lawful processing” conditions for the purposes of, among other things, journalism: see article 3 of the Order, which also imposes other conditions such as the disclosure being in the “substantial public interest” and “in connection with” issues such as “the commission of an unlawful act”. Paragraphs 31-33 of the Tribunal’s decision contain a useful summary of how the relevant provisions work.

This “journalist’s route” (my term, rather than the Tribunal’s) to obtaining sensitive personal data has been considered in a number of Tribunal decisions. In this case, it was given full effect:

 “Disclosure of the sensitive data would be “in connection with” the commission of an unlawful act (hence the conviction), seriously improper conduct and arguably Mr. Griffin`s unfitness for political office. It would be for the purpose of journalism, Mr. Cobain`s occupation, and would be intended for publication in his newspaper and possibly thereafter, in a book. Given the issues involved, namely racial and/or religious hatred and the right to express even extreme views, we find that disclosure would be in the substantial public interest. We do not consider that the passage of eleven years before the request renders disclosure unfair, or unwarranted by reason of prejudice to Mr. Griffin`s interests nor likely to cause substantial damage or distress to him. In making that judgement we have regard to Mr. Griffin`s age ( 50 at the date of the request, 39 at the date of trial), his continuing political prominence and his apparent claim to be an educated, reasonable and responsible MEP and party leader who has rejected any racial extremism formerly associated with his party.”

How does this “journalist’s route” square with the usual “applicant blindness” FOIA principle? The ICO argued that the latter prevails, such that the former only applies to pure DPA cases, not to FOIA ones. It emphasized the wording of s. 40(3)(a): disclosure to “a member of the public otherwise than under [FOIA]”. It argued that the average member of the public is the reference point for a FOIA disclosure. The average member of the public is not a journalist. The “journalist’s route” therefore has no place in FOIA.

The Tribunal disagreed (as the First-Tier Tribunal has done on a number of occasions now). It relied on the Upper Tribunal’s judgment in the APPGER case on this point, and said that:

 “… a requester who fulfils one or more of the schedule conditions is also a member of the public ( and is not the data processor ) who is receiving the information under FOIA. If this were not so, FOIA would be a valueless tool for the serious researcher, journalist, writer, politician or scholar seeking to investigate serious wrongdoing within the preceding thirty years. If that were the case, it would be reasonable to ask whether FOIA was worth enactment.”

The effect in this case was that s. 40(2) did not apply at all.

Section 32 (court records)

Next, the CPS relied on s. 32, the ambiguous wording of which has opened the door for Article 10 ECHR arguments: see the Kennedy v Charity litigation (Panopticon passim) in which the First-Tier Tribunal’s “report” on the application and effect of Article 10 on s. 32 will be considered by the Court of Appeal later this month. The Tribunal in Cobain wholeheartedly adopted the Kennedy report:

“We adopt with gratitude and respect the very careful reasoning of the report on this issue, which we believe accurately states the law as to Article 10 as recently developed… We do not doubt that s. 32(1) can be read down in a way which is consistent with Article 10. We consider that limiting the restriction in [s. 32(1)] so that it ends once a reasonable time has elapsed after the exhaustion or evident abandonment of the available appeal process would avoid a breach of Article 10.”

Consequently, s. 32 was not available as a ground for refusal in this case.

The Article 10 issue is obviously of enormous importance to the interpretation of FOIA – particularly, but not exclusively for journalists. As things stand, the role of Article 10 is uncertain. At least two other First-Tier Tribunals have heard or will hear argument on it this month (in the contexts of ss. 23, 40(2) and 41); the Court of Appeal will consider it in two cases this month, and the Supreme Court gives judgment in Sugar v BBC next week. Watch this space.

Section 30(1) (investigations)

In the context of this case, this exemption was “unarguably” engaged. The Tribunal made the following observations about the public interest in maintaining this exemption:

“The Tribunal acknowledges the substantial public interest in many circumstances in protecting from disclosure information gathered for the purposes of a criminal case, including the need to offer informants and witnesses protection from public exposure and a prosecuting authority a proper space in which to discuss and decide issues that arise.”

As against that, it said this about the public interest in disclosure:

“On the other hand, the public has a legitimate interest in criminal investigations and resulting court proceedings, especially where the defendant was a prominent political figure charged with an offence of great current importance in proceedings that he was keen to publicise. The passage of time is also a consideration. Legitimate public interest in such a case continues due to the profile of the defendant but the risk of any impact on the resulting proceedings disappeared long ago. More importantly, the relevant information in this appeal does not include statements from potentially vulnerable witnesses or highly sensitive material”.

The Tribunal therefore concluded that, in general, the public interest favoured the disclosure of the disputed information in this case, except for three categories which could properly be withheld.

On s. 30(1), this decision is a useful summary of the most relevant considerations. It is on ss. 40(2) and Article 10, however, that it has given a fresh boost to requesters.

Robin Hopkins

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