Last month the House of Lords granted the Information Commissioner permission to appeal the Court of Appeal’s judgment in Office of Communications v IC [2009] EWCA Civ 90 (‘Ofcom’). In Ofcom, the Court of Appeal considered the question of how the public interest test under regulation 12(5)(b) of the Environmental Information Regulations 2004 (‘EIR’) applied where a number of different exceptions were engaged in respect of particular requested information. It held that, rather than conducting discrete public interest balancing exercises under each individual exception, the public authority could effectively bundle all the public interest considerations relevant to the applicable exceptions into a single compendious public interest balancing exercise. The Commissioner has now been granted permission to appeal the judgment to the newly constituted Supreme Court. 11KBW’s Ahlaq Choudury is acting on behalf of the Commissioner.
ICO seeks permission to appeal to House of Lords
March 26th, 2009 by Akhlaq ChoudhuryIn Ofcom v Information Commissioner [2009] EWCA Civ 90, the Court of Appeal held that in applying the public interest test under the Environmental Information Regulations it is necessary to aggregate all public interest factors relating to all applicable exceptions and weigh these against the public interest in disclosure. This is a departure from the well-established approach of looking only at the public interest factors in respect of a particular exception to determine whether the public interest in maintaining that exception outweighs the public interest in disclosure. This change in approach will affect disclosure decisions under both the EIR and FOIA. The ICO has lodged a petition seeking permission to appeal to the House of Lords.
Revising FOIA?
March 6th, 2009 by Timothy Pitt-Payne QCTucked away in Jack Straw’s House of Commons statement (24th February 2009) about the veto on disclosure of the Iraq War Cabinet minutes is the following intriguing passage:
Shortly after he became Prime Minister, my right hon. Friend the Prime Minister established a high-level inquiry into the 30-year rule under the chairmanship of Mr. Paul Dacre of the Daily Mail. That report, published last month, proposed a reduction from 30 to 15 years of the time after which Cabinet minutes and other papers would automatically be released. I have already told the House that the Government favour a substantial reduction in the 30-year limit. In that context, the report also recommended that we consider protection under the Act for certain categories of information.
The reference to the Dacre Report relates to the following section in chapter 8 of the Report:
8.7 As we noted in Chapter Five, there are genuine concerns among some ministers and civil servants about the early release of particularly sensitive types of papers … Given that we are recommending a substantial reduction to the 30 year rule, we believe that the government may wish to look again at the exemptions set out in the FoI Act.
8.8 We therefore recommend that, in parallel with the adoption of a 15 year rule, the government, in consultation with interested parties, may wish to consider whether there is a case for enhanced protection of such categories of information.
So what may be under consideration is a change along the following lines. The 30 year rule would be replaced by a 15 year rule; and at the same time some categories of information that are at present covered by a qualified exemption under the Freedom of Information Act 2000 would become subject to absolute exemption. Possible candidates for this treatment might be Cabinet minutes, or some forms of policy advice in central Government. A change of this nature might not even need primary legislation; an attempt could be made to implement the change by making an order under section 7(3) of the Freedom of Information Act. This was the technique that was used in the recent (abandoned) attempt to amend FOIA in relation to MPs expenses: see http://news.bbc.co.uk/1/hi/uk_politics/7839281.stm
I would make two brief comments. One is that the Dacre proposals in relation to the 30 year rule envisage that the change to a 15 year rule would be made over a long transitional period, coming fully into effect by 2025. Presumably any change in the FOIA exemptions would not be subject to any corresponding transition. A second is that the Environmental Information Regulations 2004 (EIR) could not be amended in the same way, since they implement a European Directive. So if the FOIA exemptions are tightened, expect a great deal more argument about whether particular requests fall within FOIA or EIR.
For Jack Straw’s statement see:
For the Dacre Report see:
http://www2.nationalarchives.gov.uk/30yrr/30-year-rule-report.pdf
Court of Appeal Gives Judgment in Ofcom Case
February 26th, 2009 by Anya ProopsOn 20 February 2009, judgment was handed down in the case of Office of Communications v Information Commissioner [2009] EWCA Civ 90. This is the first case under the Environmental Information Regulations 2004 (EIR) to be heard by the Court of Appeal. The Information Commissioner was represented by Akhlaq Choudhury of 11KBW. This is an important judgment affecting the general approach to the public interest test in determining whether information under the EIR should be disclosed. The judgment is also relevant to the application of the public interest test under FOIA. The case concerned a request made to Ofcom (the regulatory body for radio communications) for the disclosure of information as to the location of mobile phone masts, and in particular for that information to be disclosed in a format that would enable the requester to manipulate the underlying data using data-handling applications. Ofcom resisted disclosure on the basis that it would prejudice (a) public safety (by identifying mast locations to criminals) and (b) the intellectual property rights of the Mobile Network Operators (such rights being the database rights in the information). The Information Tribunal considered that there was a strong public interest in disclosure given, amongst other matters, the benefit to epidemiological research as to the effects of mobile phone mast radiation on the health of the public. The Tribunal considered that it was entitled to take that public interest into account notwithstanding the fact that such research would be likely to involve an infringement of database rights. In addressing the public interest balance, the Tribunal took the then well-established course of separately weighing the public interest in maintaining each of the exceptions relied upon against the public interest in disclosure. It did not aggregate all the public interest factors against disclosure. The Tribunal found that the public interest balance favoured disclosure.
On the general point of principle, namely the approach to be taken in weighing the public interest in maintaining the exemption against the public interest in disclosure, the Court of Appeal disagreed with the Tribunal’s approach. The Court held that the public interest in maintaining each exemption should be aggregated and weighed against the public interest in disclosure. An exemption-by-exemption approach was still permissible provided that the matter is also looked at in the round at the end of the process by considering whether the aggregate public interest in maintaining the applicable exemptions outweighs the public interest in disclosure. However, the Court upheld the Tribunal’s’ approach in taking into account a factor as supporting the public interest in disclosure even where that factor involves a breach of third party intellectual property rights. The Court held that the legislative scheme is such that it is permissible to take such factors into account as an aspect of the public interest in disclosure. The matter was remitted to the Tribunal to reconsider the public interest balance in accordance with the approach laid down by the Court.