Wheat and chaff: advice to ministers on answering parliamentary questions

June 1st, 2012 by Robin Hopkins

Some years ago, the government commissioned the Tasker Report into the conduct of senior managers in the prison service, which had given rise to extensive and adverse publicity. A number of parliamentary questions were asked about the report. As is the usual practice, civil servants prepared advice for use by the prisons minister, Maria Eagle, in responding to those questions.  Kikugawa v IC and MOJ (EA/2011/0267) involved a request for copies of those advice notes. The MOJ refused to disclose them, relying on s. 36(2)(b) FOIA (prejudice to the free and frank provision of advice or exchange of views), the prerequisite for which is the issuing of a ‘reasonable opinion’ by the ‘qualified person’ (here, the minister) as to the likelihood of those prejudices.

The Tribunal found the exemption to be engaged. Points to note as regards the ‘reasonableness’ of the opinion this, which points towards a margin of discretion:

“The opinion must be her opinion so she cannot simply sign a submission without reading it, though nobody suggests that she did so. Deciding to approve a submission by flipping a coin (an example given by the ICO) does not fail the test because the opinion adopted is unreasonable but because the minister formed no opinion at all. The same principle would apply, though perhaps less vividly, where the minister received a submission advocating this opinion which offered no reason, however slight, to form it. Nobody can truly form an opinion where he or she is deprived of any shred of information on the issues involved. Provided the opinion is formed by the minister, however, it may be debatable how far the Tribunal is entitled to inquire into the mental processes adopted. A degree of caution may be appropriate when approaching the supposed requirement for a “reasonable opinion reasonably formed”.

The requester said the opinion had been biased. The Tribunal disagreed:

“The test is reasonableness, not the apparent objectivity of the QP. If the QP has formed an untenable opinion because of a conflict of interest, then the opinion does not satisfy s.36(2), not because it is the opinion of a biased QP but because it is unreasonable. In fact, the complaint that it is the minister concerned with the PQs whose opinion is sought is unrealistic since it is she who is by far the best placed to form a judgement on the matter. Equally, it is hard to see how officials who had no involvement whatever with the PQs or the background facts could provide an informed submission.”

The requester alleged that the submissions to the minister had been “bogus”, false or “deliberately misleading”. Although the Tribunal noted colourfully that “it is inevitable that, in the stream of advice and comment passed to ministers in the process of answering hundreds of PQs there will be chaff as well as wheat”, it did not find the requester’s allegations to be well founded.

Finally, this was one of those (increasingly rare, it seems) cases where the Tribunal saw force in the ‘chilling effect’ argument:

“The Tribunal is frequently pressed by government departments with claims as to the “chilling effect” on frank communication of disclosure of internal discussions and reports. The Tribunal is not always impressed by them. Here, though, we are dealing with a vital and sensitive interface between minister and civil servant. This is an area of government where the need for confidentiality is clear because the points that need to be made to a minister may be based on evidence of varying strength and may involve strong criticism of the questioner or another member or third party. The official offering advice may be understandably reluctant to make them public, whilst properly concerned that they should be before the minister. It is for the minister to decide what should be used, what rejected, what is too tenuous to be relied upon.”

For all these reasons, the Tribunal firmly rejected the appeal.

Robin Hopkins

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CHILLING EFFECT, SAFE SPACE AND THE NHS RISK REGISTERS

April 15th, 2012 by Robin Hopkins

In a recent post, Panopticon brought you, hot-off-the-press, the Tribunal’s decision in the much-publicised case of Department of Health v IC, Healey and Cecil (EA/2011/0286 & EA/2011/0287). Somewhat less hot-off-the-press are my observations. This is a very important decision, both for its engagement with the legislative process and for its analysis of the public interest with respect to section 35(1)(a) of FOIA (formulation or development of government policy) – particularly the “chilling effect” argument. At the outset, it is important to be clear about what was being requested and when.

Risk registers in general

The DOH prepared two “risk registers” documenting the risks associated with implementing the “far-reaching and highly controversial” NHS reforms under what was then the Health and Social Care Bill. The Tribunal heard that risk registers are used widely across government for project planning. They provide snapshots (rather than detailed discussions) combining the probability of and outcomes from any given risk associated with the proposed reform; risks are then classified in red, amber or green terms. According to Lord Gus O’Donnell, who gave evidence in support of the DOH’s case, risk registers are the most important tool used across government to formulate and develop policy for risk management in advising ministers. John Healey MP, one of the requesters in this case, said that he was a minister for ten years and was never shown such a register.

The requests and these particular registers

On 29 November 2010, Mr Healey requested a copy of the “Transition Risk Register” (TRR). This, the Tribunal found, was largely concerned with operational matters; it aimed to identify implementation risks. By this stage, the government had already published its White Paper on the reforms. Crucially, the Tribunal’s finding was that the broad policy decision had been taken by the time of the White Paper. The subsequent consultation was largely directed at how best to implement the White Paper. In response to that consultation, the government adhered to the vast majority of its plans, and set about implementing them early where possible.

On 28 February 2011, the second requester, Nicholas Cecil, asked for a copy of the Strategic Risk Register (“SRR”). This was concerned with potential policy decisions for ministers. By that time, the Bill had been laid before Parliament. Parliament’s reaction meant that, in a number of respects, ministers were called upon to rethink policy decisions surrounding the NHS reforms.

Both requests were refused. The IC ordered that they be disclosed. The Tribunal upheld the IC’s decision on the TRR, but allowed the DOH’s appeal on the SRR.

The approach to section 35(1)(a) of FOIA

Before the Tribunal, it was accepted that this exemption was engaged with respect to both registers. The Tribunal considered that the need for a safe space for policy-making was not linear. Its analysis is worth quoting in detail:

“We are prepared to accept that there is no straight line between formulation and development and delivery and implementation. We consider that during the progress of a government introducing a new policy that the need for a safe space will change during the course of a Bill. For example while policy is being formulated at a time of intensive consultation during the initial period when policy is formed and finalised the need for a safe space will be at its highest. Once the policy is announced this need will diminish but while the policy is being debated in Parliament it may be necessary for the government to further develop the policy, and even undertake further public consultation, before the Bill reflects the government’s final position on the new policy as it receives the Royal Assent. Therefore there may be a need to, in effect, dip in and out of the safe space during this passage of time so government can continue to consider its options. There may also come a time in the life of an Act of Parliament when the policy is reconsidered and a safe space is again needed. Such a need for policy review and development may arise from implementation issues which in themselves require Ministers to make decisions giving rise to policy formulation and development. We therefore understand why the UCL report describes the process as a “continuous circle” certainly until a Bill receives the Royal Assent. However the need for safe spaces during this process depends on the facts and circumstances in each case. Critically the strength of the public interest for maintaining the exemption depends on the public interest balance at the time the safe space is being required.

We would also observe that where a Bill is a Framework Bill we can understand that even after it receives the Royal Assent there will be a need for safe spaces for policy formulation as secondary legislation is developed. We note in this case that the Bill, although suggested by DOH to be a Framework Bill, is prescriptive of economic regulation, and cannot be described purely in framework terms.”

Public interest factors in favour of maintaining the exemption: safe space and chilling effect

One of the DOH’s witnesses contended that the registers allowed a safe space for officials to “think the unthinkable”, but the Tribunal found it difficult to see how the registers – particularly the TRR – could be described in that way: “the TRR identifies the sorts of risks one would expect to see in such a register from a competent Department”. Nonetheless, the Tribunal accepted the strong public interest in there being a safe space for policy formulation.

The main argument concerned the chilling effect, which Lord O’Donnell addressed in his evidence. The Tribunal considered that there was no actual evidence of the chilling effect following other instances of comparable disclosures (e.g. following OGC v IC (EA/2006/2068 & 80), or following a 2008 disclosure of a risk register concerning a third runway at Heathrow). Similarly, a 2010 report from UCL’s Constitution Unit concluded there to be little evidence for the chilling effect.

Overall, the Tribunal cautioned against treating qualified exemptions as absolute ones. It said:

“We would observe that the DOH’s position expressed in evidence is tantamount to saying that there should be an absolute exemption for risk registers at the stages the registers were requested in this case. Parliament has not so provided. S.35 (and s.36) are qualified exemptions subject to a public interest test, which means that there is no absolute guarantee that information will not be disclosed, however strong the public interest in maintaining the exemption.”

Factors in favour of disclosure

The DOH’s witnesses sought to play down the significance of the NHS reforms in comparison to other important reforms implemented by government. Mr Healey, however, argued that they were exceptional. The Tribunal agreed with him.

It also noted that the Conservatives’ manifesto for the 2010 election had promised an end to top-down NHS reorganisation, but that its NHS White Paper then appeared to propose exactly such a reorganisation. It was not preceded by a Green Paper. It was clear to the Tribunal that the White Paper was published in a hurry and to much public concern. Given the scale and controversial nature of the reforms, transparency of decision-making was very important.

The Tribunal found the public interest balance to be very difficult in this case. Judging the matters at the time of the DOH’s refusal notices, the Tribunal concluded that the balance favoured disclosure of the TRR but not the SRR – due to the differences in the nature of the registers and the timing of the requests (see above).

Section 40(2) of FOIA and civil servants’ names

Finally, the Tribunal also considered the DOH’s reliance on section 40(2) to redact the names of a number of civil servants on the grounds of their being insufficiently senior for disclosure to be fair. The Tribunal ordered the disclosure of the majority of these names. In so doing, it focused on the substance of what each individual did with respect to this particular information – rather than on their Civil Service grades.

Robin Hopkins

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LOCAL AUTHORITY’S LEISURE CENTRE BUSINESS PLAN: RELIANCE ON S. 43 FOIA UPHELD

March 10th, 2012 by Robin Hopkins

Local authorities are frequently asked to disclose information about their business arrangements with private sector partners: contracts, tender documents, business plans, financial models and the like. In Visser v IC and LB Southwark (EA/2011/0188), the appellant had requested the most recent business plan approved by the Council for Fusion Ltd, a leisure centre management company with whom the Council had contracted. The Council’s reliance upon s. 43 of FOIA – commercial interests – had been upheld by the Tribunal. While the case turned on the clarity and persuasiveness of the evidence of commercial harm, a few general observations are worthy of note.

The first concerns the way the Council had approached its disclosure decision. The Council had discussed the matter with Fusion, and the parties had disagreed on whether disclosure was appropriate. The Council had concluded that, since public money was being expended, the amount that the Council was paying Fusion ought to be in the public domain and open to scrutiny to ensure that public money was being used effectively. This was duly disclosed. However, the Council accepted Fusion’s argument that disclosing the profit and loss schedule would be damaging. It considered that the profit and loss account demonstrated Fusion’s approach and methodology to determine income and managing risks including its ratios and allowances for all expenditure items including staff costs, overhead, surplus and contingency.

The passage of time is often a pivotal factor in commercial sensitivity cases. By the time of the request in this case, the disputed information was two years old. Having considered the evidence, however:

“The Tribunal was satisfied that there was a continuity of approach to [Fusion’s] budgeting and business processes by Fusion which would be revealed by the disclosure of the 2007/8 business plan. This knowledge would be of value to Fusion’s competitors in future tendering processes relating to similar facilities and services. It therefore concluded that the age of the information was largely irrelevant, the commercial sensitivity of this specific information did not diminish over time and so the information remained commercially sensitive.”

The Tribunal also had this to say on the importance of preserving fair competition:

“The tribunal was satisfied that the Commissioner was right to emphasise the importance of the functioning of a fair market in this case. The evidence before the tribunal was that the provision of management services for leisure facilities owned by public authorities is a competitive market with a significant number of strong players within it. If the commercial secrets of one of the players in the market were revealed then its competitive position would be eroded and the whole market would be less competitive with the result that the public benefit of having an efficient competitive market would be to some extent eroded.”

Lastly, it agreed that there was a significant public interest in maintaining commercial confidences, as identified in Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council and others [2010] EWCA Civ 1214, [2011] BLGR 95 CA.

Robin Hopkins

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SECTION 38 FOIA: MEANING OF “ENDANGER”; IN-BUILT PUBLIC INTEREST

November 16th, 2011 by Robin Hopkins

The British Union for the Abolition of Vivisection’s requests for information from Newcastle University have reached the Tribunal system before: see my post from May this year on the Upper Tribunal decision concerning the meaning of “held”. The latest First-Tier Tribunal litigation between these parties, BUAV v IC and Newcastle University (EA/2010/0064), again considered information about project licences for experimentation on non-human primates. The Tribunal found that the University was required to disclose that information, except for a small amount which it was entitled to withhold on the basis of sections 38(1) (health and safety) and 43(2) (prejudice to commercial interests).

Section 38(1) crops up relatively infrequently at Tribunal level (for another notable example, see my post on the PETA case of 2010 – which, interestingly, also concerned a request to a university for information concerning animal experimentation). This BUAV decision is arguably now the leading case on this exemption.

There are four important points to note. First, what does “endanger” mean? BUAV submitted that it is the section 38 equivalent of “prejudice” as used in other exemptions. The University submitted that the “endangerment” requirement was met where there was a weighty chance of a risk to health or safety. The Tribunal drew a distinction between “risk” and ”danger”, saying this:

“We do not fully accept either submission. We must take into account that in s38(1) Parliament chose to use the word “endanger” and did not refer either to “injury” or to “prejudice”. On the other hand, considering the statutory purpose of freedom of information, balanced by exemptions, we are not persuaded that it would be right to read the word “endanger” in a sense which would engage the exception merely because of a risk. A risk is not the same as a specific danger. Every time a motorist drives on the road there is a risk that an accident may occur, but driving is only dangerous when a particularly risky situation arises. So, for example, there is always a risk that a researcher might become a target for persons opposing animal research by unlawful and violent means, but the researcher’s physical health would not be endangered unless a specific attack were made. We need to consider the likelihood of such an attack, and the likelihood of other conduct which would endanger mental health or other aspects of safety.”

Secondly, the Tribunal emphasised the importance of establishing a causal link between disclosure of the particular information and the envisaged danger:

“There is also a causation criterion to be met. We are not required to consider in the round the likelihood of the researchers or other persons being endangered, but specifically the likelihood of such endangerment as a result of disclosure of the requested information.”

For most of the requested information, section 38(1) was not engaged: the evidence showed the risk of harmful action by animal rights extremists to be low, and the evidence in support of engaging the exemption mainly comprised expressions of fear. A small amount of information did, however, come within the exemption because of how it was likely to be misconstrued. This raises the third important point, on which the Tribunal said this:

“In this connection we wish to make clear our view that information cannot generally be withheld simply because it might be misunderstood or taken out of context. A public authority can publish together with information released under FOIA whatever explanations or additional information it wishes. But we recognise that there comes a point where a particular piece of information may be so liable to be misunderstood and misused that the exemption is engaged.”

The fourth notable point concerns the in-built weight of the exemption. Section 38(1) is difficult to engage, but where it is engaged, the public interest in maintaining it is strong:

“Self-evidently, there would need to be very weighty countervailing considerations to outweigh a risk to health or safety which was of sufficient severity to engage section 38(1).”

Tim Pitt-Payne QC appeared for Newcastle University.

Robin Hopkins

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AGGREGATION AND ARTICLE 10 IN THE FIRST-TIER TRIBUNAL: NEITHER NEEDED

November 8th, 2011 by Robin Hopkins

Sinclair v IC and Department for Energy and Climate Change (EA/2011/0052) concerned a request under the EIR from the Taxpayers’ Alliance for information on the potential financial and/or economic cost of Britain meeting a pledge to cut emissions by 42 per cent from 1990 levels by 2020. This pledge had been considered in connection with the Copenhagen Conference on climate change in 2009.

DECC refused this request, relying on regulations 12(5)(a) (disclosure would adversely affect international relations) and 12(4)(e) (internal communications).

In one of the first applications of the “aggregation” approach to the public interest test approved by the ECJ in the OFCOM case (on which, see here), the Commissioner held that the composite aggregated weight of the public interest factors in maintaining the two exceptions outweighed those which favoured disclosure – the international relations exception alone would not have sufficed.

The Tribunal was sufficiently impressed by DECC’s evidence to conclude that aggregation was not needed – the public interest in maintaining the international relations exception was sufficient to outweigh that in disclosure.

Interestingly, the Tribunal also considered an Article 10 ECHR argument: the appellant relied on that Article in support of his right to the requested information. The Tribunal found that Article 10 did not assist the appellant on the facts of his case. Its views on the application of Article 10 to information rights more generally was as follows.

In terms of authorities supporting the application of Article 10 to information rights, the high point was the Second Chamber decision in the ECtHR in Társaság a Szabadságjogokért v Hungary (Application no. 37374/05), in which the state had conceded that Article 10 rights were engaged where a civil liberties pressure group requested information about a complaint to the Constitutional Court.

Previous Grand Chamber authorities, however, had consistently rejected the proposition that Article 10 supported a right of access to official information.

The Tribunal is required to follow any clear and consistent Strasbourg jurisprudence. It found that “there is as yet no clear decision that Article 10 extends as far as Mr Sinclair submitted”.

11KBW’s Holly Stout appeared for the Information Commissioner.

Robin Hopkins

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FROM NAKED PHOTOS TO NUCLEAR ENRICHMENT: ROUNDUP OF NEW TRIBUNAL DECISIONS

September 26th, 2011 by Robin Hopkins

The past week saw a slew of new decisions from the First-Tier Tribunal. Here is Panopticon’s highlights package.

Sections 41 (information obtained in confidence) and 43 (commercial prejudice)

In DBIS v IC and Browning (EA/2011/0044), the requester (a Bloomberg journalist) had sought information from the Export Control Organisation in connection with licences issued for the exporting to Iran of “controlled goods” – explained by the Tribunal as “mainly military, dual use (potentially military), equipment designed for torture or repression or sources of radio-activity”. The relevant public authority, the Department for Business, Innovation & Skills, refused the request, relying on sections 41 and 43. The IC found for the requester on the narrow basis that, whilst disclosure would result in a breach of confidence, no commercial detriment would be suffered by the licence applicants as a result. Subsequent evidence from the Department persuaded the IC to change position and support the appeal, which was resisted by the applicant. In a decision which turned on the evidence, the Tribunal allowed the appeal, and found both sections 41(1) and 43(2) to be effective.

Section 42 (legal professional privilege)

Two recent decisions on this exemption. Both saw the Tribunal uphold the refusal, applying the established approach under which this exemption has a strong in-built public interest. Szucs v IC (EA/2011/0072) involved an FOIA request about an earlier FOIA request (the appellant requested the legal advice and associated documents provided to the Intellectual Property Office about how to deal with a previous FOIA request made by the appellant’s husband). Davis v IC and the Board of Trustees of the Tate Gallery (EA/2010/0185) is eye-catching primarily because it concerned the Tate’s legal advice concerning the inclusion in an exhibition of a photograph of the actress Brooke Shields, aged ten, naked, entitled “The Spirit of America” (the Tate had initially proposed to include this in an exhibition, but ultimately withdrew the photograph).

Section 40 (personal data)

Beckles v IC (EA/2011/0073 & 0074) concerned the identifiability of individuals from small sample sizes, in the context of information about dismissals, compromise agreements and out-of-court settlements. The appellant asked Cambridge University for information on (among other things) the number of employees who received post-dismissal settlements. The answer was a low number. He asked for further details concerning the settlement amounts, rounded to some appropriate non-exact figure. This, said the Tribunal (applying the Common Services Agency/Department of Health approach to identifiability from otherwise anonymous figures) was personal data, the disclosure of which would be unfair. Its reasoning is summed up in this extract:

“Information as to the settlement of a claim made by an identified individual relating to his or her employment is undoubtedly personal data. The question is whether the four individuals or any of them could be identified if the information requested were disclosed, even in approximated form…. Cambridge University is made up of a large number of much smaller academic or collegiate communities. It is likely that a number of colleagues or friends will be aware that a particular individual settled a claim with the University within the time-scale specified. They will be aware of the general nature of that person`s employment. This is a small group of claims in a relatively short period. In the form originally requested it is readily foreseeable that one or more of the four will be identified.”

Sections 24 (national security) and 27 (international relations)

Burt v IC and MOD (EA/2011/0004) concerned information gathered by staff of the UK Atomic Weapons Establishment on an inspection visit to a United States atomic energy facility, as a learning exercise regarding the proposed development of an enriched uranium facility at Aldermaston. The US had expressed its desire to maintain proper confidence in what it regarded as a sensitive area. The MOD refused the request, relying on sections 27 and 24. By the time of the appeal, only a small amount of information had not been disclosed. This was primarily of a technical nature, containing observations about the operation of plant, machinery, procedures and processes at the US facility.

The Tribunal upheld the MOD and Commissioner’s case as regards the outstanding material. As regards section 27, the Tribunal applied the principles from Campaign against the Arms Trade v IC and MOD (EA/2006/00040). It observed, however, that confidential information obtained from another country would not always be protected by section 27: it was “perhaps axiomatic that the foreign State will take the United Kingdom as it finds it including but not limited to the effect of its own domestic disclosure laws. It follows that there may well be cases where information otherwise imparted in confidence from a foreign State to a United Kingdom authority would need to be considered on its own merits as to whether some form of disclosure should be made or ordered whether under FOIA or under similar analogous legislation or principles such as the UK data protection principles.”

As regards section 24, the Tribunal applied Kalman v IC and Department of Transport (EA/2009/0111) (recourse to the exemption should be “reasonably necessary” for the purpose of safeguarding national security), and Secretary of State for the Home Department v Rehman [2003] 1 A 153 (the threat to national security need not be immediate or direct).

Burt is also an example of a “mosaic effect” case: taken in isolation, the disputed information may appear anodyne, but the concern is with how it might be pieced together with other publicly available information.

Section 14(1) FOIA (vexatious requests)

Dransfield v IC (EA/2011/0079) is an example of the Tribunal overturning the Commissioner’s decision that section 14(1) had been engaged (for another recent example, see my post here). As with many such cases, the history and context were pivotal. Given that it is the request, rather than the requester, which must be adjudged to be vexatious, how should the context be factored in? The Tribunal gave this useful guidance:

“There is, however, an important distinction to be drawn between taking into account the history and context of a request, as in the cases referred to above, and taking into account the history and context of other requests made by a requester or other dealings between the requester and the public authority. The former is an entirely proper and valid consideration. The latter risks crossing the line from treating the request as vexatious, to treating the requester is vexatious. That line, in our view, was crossed in the present case.”

Robin Hopkins

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IS FOIA ALWAYS MOTIVE BLIND? TRIBUNAL DECISION ON SEX OFFENDERS’ SENSITIVE PERSONAL DATA

September 16th, 2011 by Robin Hopkins

In Colleen Smith v IC and Devon & Cornwall Constabulary (EA/2011/0006), the requester asked for information on the number of school teachers in specified towns who had been investigated, cautioned and charged under the Sexual Offences Act 2003 between January 2005 and November 2007. The Constabulary eventually relied on the personal data at section 40(2) FOIA.

The Commissioner found that, where the answer was “zero”, this was not personal data and should be disclosed; otherwise, the information could be withheld under section 40. The Tribunal has upheld this decision, albeit for different reasons.

This decision is worth noting on a number of grounds.

First, this is a good illustration of the approach from Department of Health v IC [2011] EWHC 1430 (Admin) (the “abortion statistics” case – see my post here) to the definition of “personal data” in the context of apparently anonymous statistics. Here the Tribunal considered both the disputed information concerning numbers of alleged sex offenders and the “other information” held by the Constabulary, and was satisfied that living individuals could thereby be identified. Furthermore, for obvious reasons, this constituted “sensitive personal data”.

Secondly, the Tribunal turned to fairness of disclosure. As regards reasonable expectations of data subjects, it concluded (for confidential reasons, and notwithstanding that one can generally assume sensitive personal data will not be disclosed) that the data subjects in these circumstances could have had no reasonable expectation that these statistics would not be disclosed at the relevant time, i.e. late 2007.

Thirdly, the Tribunal also disagreed with the Commissioner that disclosure created a risk of harm to the suspected offenders at the relevant time.

Fourthly, the Tribunal considered whether a condition from Schedule 3 of the DPA 1998 would be met. It did so by asking itself whether paragraph 3 of the Schedule of the Data Protection (Processing of Sensitive Personal Data) Order 2000 applied. That concerns, inter alia, disclosure of information concerning alleged unlawful acts for “special purposes” such as journalism. Disclosure must, however, be “in the substantial public interest”.

The “special purpose” of journalism highlights the following important reminder. It is by now axiomatic that FOIA is “motive blind”. However, the cases of Ferguson v IC (EA/2010/0085) (on which, see my post here) and Brett v IC (EA/2008/0098) imposed an important gloss on that principle. The Tribunal in Ferguson summed up the point thus:

“It is often stated that requester’s rights under FOIA are purpose-blind, in the sense that an applicant’s personal identity and motives for requesting information are irrelevant. This generalisation can mislead. There are some cases in which the applicant’s identity and motives may shed light on the public interests involved. More significantly, the applicant’s identify and motives can be of direct relevance to the exemption in FOIA s40(2) because of the provisions of DPA disclosure and to the interests pursued by the persons to whom the disclosure would be made. For example, a journalist or author may be able to outflank the s40(2) exemption by reliance upon DPA Schedule 3 condition 10 and paragraph 3 of the Schedule to the Data Protection (Processing of Sensitive Personal Data) Order 2000, where it is in the substantial public interest that wrongdoing should be publicised.”

The Tribunal in Smith agreed. The appeal, however, failed because disclosure of this information would not be “in the substantial public interest”.

The Tribunal thought it “reasonable to assume… that the public had an ongoing need for reassurance as to the level of activity by sexual offenders in particular localities and transparency and accountability in what the police were doing about it”. The threshold of “substantial public interest”, however, required a certain level of urgency in the need to reassure the public. That threshold was not met here.

In reaching this conclusion (which the Tribunal described as “finely balanced”), the Tribunal took into account: the evidence as to the machinery for the monitoring and supervision of sex offenders in the community; the risk of vigilantism, which can force suspects to “disappear”, which in turn increases the risk of reoffending. It added that:

“It was not enough, in the Tribunal’s view, that sexual offences by teachers or others in positions of trust was a matter of keen interest to the public. This, on its own, did not make disclosure “in the substantial public interest”. It was the Tribunal’s task to weigh against the wholly understandable concern felt by members of the public on this subject, the detrimental effects that disclosure could have.”

The upshot was that, although disclosure would be fair, section 40(2) took effect because no Schedule 3 condition would be met.

Robin Hopkins

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KEY POINTS FROM THE CAMDEN ‘SQUATTER’S ROAD MAP’ JUDGMENT

September 8th, 2011 by Robin Hopkins

In Voyias v IC and LB Camden (EA/2011/0007), Camden Council has been ordered to disclose to a former member of the Advisory Service for Squatters lists of empty properties meeting certain descriptions. The decision has been controversial: see for example Housing Minister Grant Shapps’ condemnation of the judgment as a ‘squatter’s road map’. I set out below some of the key points from the decision.

Scope of the request

Two types of information were plainly within scope, namely lists of the Council’s own records of empty Council-managed properties, and properties owned by non-individuals which had been confirmed as empty by the Council.

There were two additional categories of information at issue. Here the Tribunal drew the following distinction, based on the wording of the request. On the one hand, the requester had asked about properties which were “listed” as being of a certain description: this information (found on the Council tax register) was in scope, and it did not matter whether or not the facts recorded in that register were accurate.

On the other hand, the requester had also asked for information about “empty” properties: this was not in scope. It was to be construed as meaning “actually empty” at the date of the request, and here the relevant records were not accurate.

Approach to the evidence

The Appellant argued that the IC’s reliance on material he had not seen was a breach of Article 6 ECHR. The Tribunal disregarded this argument, as an appeal before a Tribunal is a complete rehearing of the matter.

The next question concerning the evidence was this: how relevant were other decisions dealing with similar issues, but in the context of different local authorities?

The Tribunal was willing to take into account evidence from other Tribunal decisions dealing with general issues relating to squatting (LB Bexley v England and IC (EA/2006/0060 & 66)). The evidence was set out in that decision, and was thus available to the Appellant. Further, “it would be a waste of time and money to have to rehear such evidence in each similar case”. In contrast, the Tribunal declined to have regard to the evidence relied on in another, similar decision notice issued by the IC (concerning LB Tower Hamlets), as much of that evidence was case-specific and was not cited in detail in that publicly-available decision.

Camden’s own past disclosures of such information were not of assistance to the Tribunal, as circumstances change over time. Nor were other such disclosures by other local authorities of assistance.

Engagement of section 31(1)(a) FOIA

The IC found that s. 31(1)(a) FOIA (prevention of crime) was engaged. The Tribunal agreed, but based on different conclusions as to the evidence.

The Tribunal was satisfied that the relevant prejudice was made out as regards organised squatting. The Tribunal was satisfied that disclosure was likely to cause an increase in the number of properties squatted (even if the number of squatters remained the same) as the list of properties would add to the list of available premises known to a motivated and organized squatter. It was also satisfied that a significant proportion of entries into empty premises involve some criminal damage; it therefore concluded that organised squatting is linked to certain types of criminal activity.

The Tribunal was not satisfied, however, that disclosure of the list of properties would influence the behaviour of disorganised or opportunistic squatters, or those engaged in more systematic criminal behaviour involving drug use.

The public interest test

The IC found the public interest to favour the maintenance of the exemption. The Tribunal disagreed. Certain public interest factors were not relevant, and while there were strong factors on both sides, the balance favoured disclosure.

The Tribunal did not consider that any perceived social disadvantage of living next door to squatters, or the costs of the eviction of squatters were matters that the Tribunal was entitled to take into consideration, since squatting is not illegal. It did, however, take into account feelings of security, and the additional cost to the public purse (preventing crime, repairing criminal damage and so on) as inherently strong factors.

The Tribunal’s assessment of the weight to be given to the likely increase in crime is of interest. First, it found that disclosure would not lead to the majority of the crime associated with empty properties (crack-dens and so on). Further, in considering the other sorts of crime that would arise (criminal damage, for example), “the Tribunal takes into consideration the nature of the crimes that it considers would follow disclosure and finds that they are at the lower end of victim impact and that in some cases the presence of organized squatters itself will prevent the use of the premises for more socially disruptive crime (eg use as a crack house).”

Crucially, it found there to be a very strong public interest in bringing empty properties into reuse:

“The Tribunal is satisfied that publication of this list would bring a proportion of the void properties back into use earlier than would otherwise be the case and that consequently this is a strong public interest factor in favour of disclosure… The Tribunal is satisfied that there is already a lively and informed debate in this area, but, recognises that specific examples provide colour and are important in increasing public understanding and local involvement. It puts the specific empty properties into the limelight, may be an added tool to incentivize owners to reuse their properties and would enable the general public to walk up to a ‘void’, and see for themselves what is going on, whether it is being worked on, or has been left in limbo”.

It was this factor which outweighed the increased risk of low-level criminality, and which tipped the scales in favour of disclosure.

Robin Hopkins

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NEW TRIBUNAL DECISION ON “JACK THE RIPPER” INFORMATION

July 19th, 2011 by Robin Hopkins

The Tribunal’s recent decision in Marriott v IC and Metropolitan Police (EA/2010/0183) saw the Tribunal consider registers and ledgers of policing information from the late Victorian period – some of which, the requester contended, related to the “Jack the Ripper” investigations. The Tribunal was unanimous that section 30(2)(a) FOIA (information obtained or recorded for the purposes of functions relating to investigations or criminal proceedings etc) was engaged. It decided by a majority that the public interest favoured the maintenance of that exemption. I say no more about the case, given my involvement. David Higgerson’s blog, however, comments on the application of FOIA to very old information here.

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TRIBUNAL ORDERS DISCLOSURE OF POLICING CAMERA LOCATIONS

April 16th, 2011 by Robin Hopkins

Those interested in information law in the context of policing will wish to note the very recent Tribunal decision in Mathieson v IC and Devon and Cornwall Constabulary (EA/2010/0174).

Automated Number Plate Recognition (ANPR) cameras are strategic policing tools used by a number of forces.  Mr Mathieson asked Devon and Cornwall Constabulary to provide him with the locations of its ANPR cameras. It refused, relying on the prejudice-based qualified exemptions at s. 31(1)(a) (prevention or detection of crime) and s. 31(1)(b) (apprehension or prosecution of offenders). The Commissioner considered that the public interest arguments – though finely balanced – favoured the maintenance of these exemptions.

The Tribunal agreed that these exemptions were engaged, but disagreed on the public interest, and ordered disclosure.  It considered that the Commissioner had overlooked a number of relevant factors.

First, this is a privacy issue: ANPR cameras capture vast amounts of personal data; there is therefore substantial public interest in scrutiny of their use (further illustrated by parliamentary questions on the subject). Secondly, location data alone would not undermine policing – information on factors such as policing tactics, data and analytical capabilities were equally necessary.

Furthermore, the Constabulary had put forward weak arguments: the Tribunal was unimpressed by its attempt to rely on reports by other police forces on their use of ANPR cameras, and by its focus on issues such as the potential for vandalism – which is not sufficiently connected to the interests protected by ss. 31(1)(a) and (b).

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