Anya Proops addresses the above question, prompted by the recent revelations about the US Prism programme, in an article in today’s Guardian. She discusses the main legal constraints on surveillance in the UK - Article 8, the Data Protection Act, and the Regulation of Investigatory Powers Act. And she even manages a name check for Panopticon – both the Benthamite version, and this blog. The article is at page 32 of today’s print edition, and it’s online here. It’s already attracted a lot of attention, both by way of comments on the online version, and on Twitter.
Surveillance of the covert and digital variety has been dominating the news of late. The legal contours of the practices leaked by Edward Snowden (the NSA’s obtaining of internet metadata) and covered by The Guardian (most recently, GCHQ’s monitoring of certain communications of ‘friendly’ foreign allies) may be matters of some debate.
In the meantime, the legal contours of a more overt and physical variety of surveillance – CCTV – have been somewhat clarified.
As its name suggests, the Protection of Freedoms Act 2012 expressed the incoming Coalition Government’s commitment to keeping in check the state’s surveillance of ordinary citizens. By that Act (sections 29-36), the Home Secretary was to present to Parliament a Code of Practice governing the use of surveillance camera systems including CCTV and Automatic Number Plate Recognition (ANPR). Following a consultation exercise – the response to which can be read here – the Home Secretary has now done so. The Code was laid before Parliament on 4 June 2013. A draft order (the Protection of Freedoms Act 2012 (Code of Practice for Surveillance Camera Systems and Specification of Relevant Authorities) Order 2013) is currently being considered by Parliament’s Joint Committee on Statutory Instruments.
Pending its coming into force, Panopticon summarises the key features of the new Code.
To whom does the Code apply?
The Code imposes duties on ‘relevant authorities’, which are those listed at section 33(5) of the Protection of Freedoms Act 2012 – in the main, local authorities and policing authorities.
The draft order proposes to add the following to the list of relevant authorities:
(a) The chief constable of the British Transport Police;
(b) The Serious Organised Crime Agency;
(c) The chief constable of the Civil Nuclear Constabulary; and
(d) The chief constable of the Ministry of Defence Police.
The Code recognises that concern about the use of surveillance cameras often extends beyond these sorts of full-blooded ‘public’ authorities. It recognises that the list of relevant authorities may need to be expanded in future to encompass shopping centres, sports grounds, schools, transport centres and the like.
For now, however, only those listed as ‘relevant authorities’ are subject to the duties imposed by the Code. Others who use such surveillance systems are ‘encouraged’ to abide by the Code.
What duty is imposed by the Code?
The Code imposes a ‘have regard to’ duty. In other words, relevant authorities are required to have regard to the Code when exercising any of the functions to which the Code relates. As regards its legal effects:
“A failure on the part of any person to act in accordance with any provision of this code does not of itself make that person liable to criminal or civil proceedings. This code is, however, admissible in evidence in criminal or civil proceedings, and a court or tribunal may take into account a failure by a relevant authority to have regard to the code in determining a question in any such proceedings” (paragraph 1.16).
It may well be that the Code also weighs heavily with the ICO in its consideration of any complaints about the use of surveillance cameras breaching the DPA 1998.
Remember that the Home Office Code sits alongside and does not replace the ICO’s CCTV Code of Practice.
What types of activity are covered by the new Code?
Relevant authorities must have regard to the Code ‘when exercising any of the functions to which the Code relates’. This encompasses the operation and use of and the processing data derived from surveillance camera systems in public places in England and Wales, regardless of whether there is any live viewing or recording of images and associated data.
The Code does not apply to covert surveillance, as defined under the Regulation of Investigatory Powers Act 2000.
What about third party contractors?
Where a relevant authority instructs or authorises a third party to use surveillance cameras, that third party is not under the ‘have regard to’ duty imposed by the Code. That duty does, however, apply to the relevant authority’s arrangements.
By paragraph 1.11:
“The duty to have regard to this code also applies when a relevant authority uses a third party to discharge relevant functions covered by this code and where it enters into partnership arrangements. Contractual provisions agreed after this code comes into effect with such third party service providers or partners must ensure that contractors are obliged by the terms of the contract to have regard to the code when exercising functions to which the code relates.”
The guiding philosophy of the Code is one of surveillance by consent:
“The government considers that wherever overt surveillance in public places is in pursuit of a legitimate aim and meets a pressing need, any such surveillance should be characterised as surveillance by consent, and such consent on the part of the community must be informed consent and not assumed by a system operator…. [legitimacy] in the eyes of the public is based upon a general consensus of support that follows from transparency about their powers, demonstrating integrity in exercising those powers and their accountability for doing so” (paragraph 1.5).
In a nutshell, the expectation is this:
“The decision to use any surveillance camera technology must, therefore, be consistent with a legitimate aim and a pressing need. Such a legitimate aim and pressing need must be articulated clearly and documented as the stated purpose for any deployment. The technical design solution for such a deployment should be proportionate to the stated purpose rather than driven by the availability of funding or technological innovation. Decisions over the most appropriate technology should always take into account its potential to meet the stated purpose without unnecessary interference with the right to privacy and family life. Furthermore, any deployment should not continue for longer than necessary” (paragraph 2.4).
The guiding principles
The Code then sets out 12 guiding principles which systems operators should follow:
(1) Use of a surveillance camera system must always be for a specified purpose which is in pursuit of a legitimate aim and necessary to meet an identified pressing need.
(2) The use of a surveillance camera system must take into account its effect on individuals and their privacy, with regular reviews to ensure its use remains justified.
(3) There must be as much transparency in the use of a surveillance camera system as possible, including a published contact point for access to information and complaints.
(4) There must be clear responsibility and accountability for all surveillance camera system activities including images and information collected, held and used.
(5) Clear rules, policies and procedures must be in place before a surveillance camera system is used, and these must be communicated to all who need to comply with them.
(6) No more images and information should be stored than that which is strictly required for the stated purpose of a surveillance camera system, and such images and information should be deleted once their purposes have been discharged.
(7) Access to retained images and information should be restricted and there must be clearly defined rules on who can gain access and for what purpose such access is granted; the disclosure of images and information should only take place when it is necessary for such a purpose or for law enforcement purposes.
(8) Surveillance camera system operators should consider any approved operational, technical and competency standards relevant to a system and its purpose and work to meet and maintain those standards.
(9) Surveillance camera system images and information should be subject to appropriate security measures to safeguard against unauthorised access and use.
(10) There should be effective review and audit mechanisms to ensure legal requirements, policies and standards are complied with in practice, and regular reports should be published.
(11) When the use of a surveillance camera system is in pursuit of a legitimate aim, and there is a pressing need for its use, it should then be used in the most effective way to support public safety and law enforcement with the aim of processing images and information of evidential value.
(12) Any information used to support a surveillance camera system which compares against a reference database for matching purposes should be accurate and kept up to date.
Points to note
The Code then fleshes out those guiding principles in more detail. Here are some notable points:
Such systems “should not be used for other purposes that would not have justified its establishment in the first place” (paragraph 3.1.3).
“People do, however, have varying and subjective expectations of privacy with one of the variables being situational. Deploying surveillance camera systems in public places where there is a particularly high expectation of privacy, such as toilets or changing rooms, should only be done to address a particularly serious problem that cannot be addressed by less intrusive means” (paragraph 3.2.1).
“Any proposed deployment that includes audio recording in a public place is likely to require a strong justification of necessity to establish its proportionality. There is a strong presumption that a surveillance camera system must not be used to record conversations as this is highly intrusive and unlikely to be justified” (paragraph 3.2.2).
“Any use of facial recognition or other biometric characteristic recognition systems needs to be clearly justified and proportionate in meeting the stated purpose, and be suitably validated. It should always involve human intervention before decisions are taken that affect an individual adversely” (paragraph 3.3.3).
“This [the requirement to publicise as much as possible about the use of a system] is not to imply that the exact location of surveillance cameras should always be disclosed if to do so would be contrary to the interests of law enforcement or national security” (paragraph 3.3.6).
“It is important that there are effective safeguards in place to ensure the forensic integrity of recorded images and information and its usefulness for the purpose for which it is intended to be used. Recorded material should be stored in a way that maintains the integrity of the image and information, with particular importance attached to ensuring that meta data (e.g. time, date and location) is recorded reliably, and compression of data does not reduce its quality” (paragraph 4.12.2).
The Surveillance Camera Commissioner is a statutory appointment made by the Home Secretary under section 34 of the Protection of Freedoms Act 2012. The Commissioner has no enforcement or inspection powers. However, in encouraging compliance with the Code, he “should consider how best to ensure that relevant authorities are aware of their duty to have regard for the Code and how best to encourage its voluntary adoption by other operators of surveillance camera systems” (paragraph 5.3). The Commissioner is/is to be assisted by a non-statutory Advisory Council with its own specialist subgroups.
Given the limited remit of the Surveillance Camera Commissioner, it may be that the Code shows its teeth more effectively in complaints to the ICO and/or the courts.
The theory that there is no smoke without fire is one which often looms large where teachers are accused of sexual offences against pupils. Even in the face of a decision by the CPS that there is insufficient evidence to proceed with a prosecution or an acquittal following a criminal trial, a teacher who has been accused of sexual offences may find it hard to escape the tainting effects of the allegations. Of course, a critically important issue for the teacher in question is whether the allegations will ultimately find their way into any enhanced criminal record certificate (ECRC). This is an issue which has been considered by the High Court in two recent cases.
In the first, R (L) v Chief Constable of Cumbria Constabulary  EWHC 869 (Admin), L, a teacher, had been accused of having improperly propositioned and hugged an 18 year old pupil whilst at a pub. L had denied the allegations and no criminal prosecution had ultimately been mounted. The High Court held that inclusion in the ECRC of information relating to the allegations was unlawful as it constituted a disproportionate and hence unjustified interference with L’s Article 8 rights (see further Rachel Kamm’s more detailed post on this judgment here).
This week, the High Court has given judgment in the case of RK v (1) Chief Constable of South Yorkshire (2) Disclosure and Banning Service  EWHC 1555 (Admin). RK had previously been acquitted of six counts of indecent assault and sexual activity with a child (in essence it was alleged that RK had repeatedly touched the bottoms of teenage girls in his care). Nine years later RK sought disclosure of a draft ECRC from the Constabulary. The draft included information about the allegations and referred to them as ‘offenses’. RK sought a judicial review of the draft certificate.
In a fairly damning judgment, Coulson J held that inclusion of this information was unlawful as constituting a breach of RK’s Article 8 rights. Fundamental to the court’s judgment was the conclusion that the Constabulary had impermissibly treated the allegations as if they had been proven, notwithstanding the fact that RK had been acquitted. Indeed the court lamented the ‘unblinking equation’ between the unproven allegations with the so-called sexual offences (para. 61). Whilst the judgment makes clear that an acquittal does not automatically bar the police from referencing the original allegations in the ECRC (see para. 37), it does confirm that an acquittal is likely to be an important factor weighing heavily in the balance when it comes to determining whether or not a particular disclosure should be made. On the facts of the case before him, Coulson J found that inclusion of information about the allegations relating to RK was unlawful having regard to the fact of the acquittal; the fact that, even if proven, the incidents would not have been particularly grave or serious and further the fact that there were aspects of the prosecution case which raised serious questions about the reliability of the information.
Critically the judgments in both L and RK highlight the dangers attendant on the police unthinkingly substituting their own view of an individual’s guilt or innocence in the face of an acquittal by the criminal courts or other important evidence raising questions about the reliability of the information in issue.
I took part in what will hopefully prove to be an interesting discussion of surveillance and RIPA in an episode of Clive Anderson’s “Unreliable Evidence” that will be broadcast at 8pm today on Radio 4 (and available on the iplayer thereafter). The show was recorded prior to the recent leaks regarding US surveillance activities, and so focuses on the UK perspective. The other panel members were Eric Metcalfe (former director of human rights policy at Justice, now a barrister at Monckton Chambers) and solicitor Simon McKay.
The Communications Data Bill, shelved amid political heavy weather, is back on the agenda in the wake of last week’s Woolwich murder. Today for example, Conservative MP and former policing minister Nick Herbert wrote an article in The Times in support of the Bill and responding to those who have called it a ‘snooper’s charter’.
One of the more detailed critiques of Mr Herbert’s article came from Big Brother Watch. Part of its argument was that the Regulation of Investigatory Powers Act 2000 (RIPA) already provides for necessary surveillance – indeed, RIPA goes further because, unlike the Communications Data Bill, it allows for the actual content of communications to be intercepted in appropriate circumstances
Big Brother Watch’s article noted, however, problems with the use of intercept evidence in criminal trials. As regards the admissibility of surveillance resulting in the recording of conversations however, a very recent Court of Appeal judgment brings good news.
Turner v R  EWCA Crim 642 concerned an appeal against a murder conviction. The evidence included extracts from some 300 hours’ worth of conversations which had been recorded as part of an intrusive surveillance operation authorised under RIPA.
The single ground of appeal against conviction arose from the rejection by Dobbs J of the submission that the indictment should be stayed as an abuse of process arising from the use of intrusive covert surveillance in the appellant’s home; alternatively, that the evidence derived from that surveillance was unfairly admitted in evidence, when it should have been excluded under s.78 of the Police and Criminal Evidence Act 1984.
The Court of Appeal dismissed these arguments. It had particular regard to the importance of respecting legal professional privilege when gathering evidence through covert means.
The Lord Chief Jusitce concluded that (paragraph 28):
“The surveillance was lawful. The relevant disclosure took place. The record of incriminating conversations was unchallenged. We understand that there may be extreme cases in which the prosecuting authorities (using the words in a comprehensive way) may interfere so significantly with the legal privilege of a defendant that the very integrity of the administration of justice may be undermined. That, however, did not happen here. Lawful covert surveillance produced damaging evidence against all three defendants. The process worked lawfully: any flaws were minor and short, and inconsequential”.
As to admissibility, he said this (paragraph 30):
“The only unfairness was that the appellant chose to say the things that he did because he did not realise that they were being recorded. The object of covert surveillance of the kind deployed in this case was to discover the truth, and, the evidence of what the appellant said about the death of the deceased was put before the jury while anything containing even a whisper of conversations protected by legal privilege was excluded. That was not unfair.”
Those arguing that RIPA is a fit-for-purpose surveillance tool will no doubt find support in this judgment.
One of the most important privacy judgments of the year thus far has been that of the Court of Appeal in R (T & others) v Chief Constable of Greater Manchester & others  EWCA Civ 25, on which Chris Knight blogged in January. In a nutshell, the Court of Appeal held that the criminal records disclosure regime (including the exceptions to the Rehabilitation of Offenders Act 1974) violated Article 8 ECHR.
Permission has been granted for a further appeal to the Supreme Court, which will hear the case on 24 and 25 July of this year. Watch this space.
The Supreme Court gave judgment today in Vestergaard Frandsen A/S v. Bestnet Europe Limited  UKSC 31. The appeal concerned whether a company (Vestergaard) could sue a former employee – who had helped to establish a rival business – for breach of confidence in circumstances where the former employee (i) had never herself acquired the confidential information in question and (ii) did not know at the time that the rival business was using the confidential information. The sole judgment was given by Lord Neuberger, who held that (i) and (ii) precluded liability in breach of confidence on the part of the former employee.
The judgment does not contain any novel or radical principles. But information lawyers will wish to note the useful overview of the types of cases in which liability will arise (paragraphs 22-27), and Lord Neuberger’s analysis of the limits of liability based on common design (paragraphs 32-39).
Closed material and closed proceedings in FOIA litigation: authoritative guidance from the Upper TribunalMay 22nd, 2013 by Robin Hopkins
Closed material and closed proceedings are commonplace in FOIA litigation. As regards the disputed information itself, the need is self-explanatory. But what about closed material other than the disputed information, such as evidence in support of a public authority’s reliance on exemptions? To what extent is it appropriate for FOIA proceedings to be determined by reference to such material which the requester is unable to see and challenge? Also, if the public authority’s concern is with public disclosure of such material, is the solution to be found in a readiness to bring the requester’s legal representatives into a ‘confidentiality ring’? In other words, do natural and open justice demand that requesters’ legal representatives be allowed to attend the closed part of the hearing and see the closed material?
These questions are fundamental to the fair and thorough determination of disputes about the rights conferred by FOIA. In a very important recent decision, the Upper Tribunal has given its answers.
Browning v IC and Department for Business, Innovation & Skills (GIA 25/12) was heard by Mr Justice Charles, Mr Justice Mitting and Upper Tribunal (UT) Judge Andrew Bartlett QC. The decision is available here: Browning GIA 25 12.
The case concerned a request from a Bloomberg journalist for information from the Export Control Organisation (for which DBIS is the relevant public authority) in connection with licences issued for the exporting to Iran of “controlled goods” – explained as “mainly military, dual use (potentially military), equipment designed for torture or repression or sources of radio-activity”. DBIS relied on sections 41 and 43 FOIA. The IC found for the requester but, upon sight of further evidence, supported DBIS’ appeal before the First-Tier Tribunal (FTT). In decision EA/2011/0044, the FTT allowed DBIS’ appeal. In reaching its decision the FTT considered closed material and part of the hearing was closed.
The closed material comprised not only the disputed information, but DBIS’ evidence supporting its reliance on the exemptions. In particular, DBIS had written to applicants for such licences to obtain their views about disclosure, and it relied on their (confidential) responses in closed. Four or five of the 92 responses had been provided to Mr Browning in an anonymised, re-typed and redacted form prior to the hearing before the FTT, so as to illuminate to a degree the nature of the closed evidence being relied upon.
Mr Browning had not asked for more of the closed evidence to be made available to him in that way. Rather, a without-notice application was made at the FTT hearing for his legal representative(s) to see the closed material and attend the closed hearing in order to put the case on his behalf. The FTT refused the application. It summarised the approach taken in other FTT decisions, whereby such applications “will succeed only if there are exceptional circumstances specific to the appeal… The use of special counsel, as an alternative, is likewise exceptional.”
Mr Browning’s first ground of appeal before the UT was against the FTT’s refusal of that application.
Reliance on closed material
Mr Browning understandably contended that “the principles of open and natural justice and of fairness require, or strongly support the conclusion, that their application in the context of adversarial civil litigation should be departed from to the least extent possible… in the determination of an appeal to the FTT under FOIA” (para 48).
The UT said, however, that those principles admit of some context-sensitive flexibility. FOIA appeals are materially dissimilar from criminal and adversarial civil litigation. At paras 59-60, it said that:
“FOIA and its underlying purposes mean that, when a disputed request for information reaches the First-tier Tribunal pursuant to the statutory scheme put in place by FOIA, the relevant background and landscape of rights, interests and duties is materially different from that which obtains in criminal and civil litigation in the courts… It follows from the points we have made about the purposes of FOIA that, in our view, to characterise the First–tier Tribunal’s function, within the statutory scheme established by FOIA, as or equating to ordinary civil and therefore adversarial litigation because it is deciding a dispute between the parties before it, or deciding whether to vindicate a right claimed by the applicant, is an inadequate and inaccurate description; rather, its function is investigatory and is to see that FOIA is properly applied to the circumstances. This involves consideration, in the manner provided by FOIA, of the right which is given by s. 1(1) in pursuance of the interests served by the release of information, together with the assessment of countervailing public and private interests in accordance with the terms of the exemptions.”
Closed proceedings are thus intrinsic to FOIA litigation. The UT has confirmed the right to rely on closed evidence other than the disputed information (though see below for procedural caveats). See paras 59-60:
“(i) it is clear that Parliament did not intend that there should be such a “back door” route to information in respect of which a FOIA exemption could be claimed. It follows that there is a need to protect it from disclosure to a requester that is equivalent to that which exists in respect of the information he or she has requested, and
(ii) it is also apparent that Parliament did not intend to spawn disproportionate and satellite disputes on whether an exemption applies to information put forward to establish a claimed exemption, and this is a reason why it chose an investigatory appeal process to a tribunal comprising persons with relevant expertise.”
The UT concluded that (para 71):
“The exercise by the First-tier Tribunal of its discretion under the 2009 Rules to consider closed material and to hold a closed hearing is not governed directly, or by analogy, by the approach taken by the civil courts to the disclosure of relevant material and we therefore reject Mr Browning’s central argument that it should be exercised to achieve a result that departs to the least extent possible from the approach taken in adversarial civil litigation.”
Applications for representatives to see closed material/attend closed hearings
The UT reviewed the jurisprudence on this issue (which has not favoured the granting of such applications) and discussed the problems that would arise if such an application were granted. There is a risk of accidental disclosure. It can be difficult for the representative to police neat lines between what he can and cannot say to his client or in open session. More generally, there would be very problematic limitations on taking instructions, such that (para 76) “the value added of the approach over that of suggesting lines of enquiry to the First-tier Tribunal and the Information Commissioner is likely to be limited to what the representative knows of his client’s position before he takes part in the closed process.” In any event, what to do about unrepresented requesters?
At paras 80-81, the UT set outs its conclusions:
“… a First-tier Tribunal should not direct that a representative of an excluded party should see closed material or attend a closed hearing unless it has concluded that, if it does not does so: it cannot carry out its investigatory function of considering and testing the closed material and give appropriate reasons for its decision on a sufficiently informed basis and so fairly and effectively in the given case having regard to the competing rights and interests involved.
81. We also acknowledge and confirm that this approach will lead to the result that it will only be in exceptional and so rare cases that a representative of a party seeking information under FOIA will be permitted to see closed material and attend at a closed part of the hearing. Indeed, we have not been able to identify circumstances in which we think that this would be appropriate, but acknowledge that it cannot be said that this should never be done.”
It also considered that Article 6 ECHR was not engaged, and that its engagement would not dislodge the above conclusions in any event.
Mr Browning’s first ground of appeal therefore failed. The UT did, however, have more to say on how to approach reliance on closed material. All parties involved in FOIA litigation should pay careful attention to these points.
The Practice Note and other observations on the use of closed material
The UT had misgivings about the limited extent of the anonymised closed material which had been made available to Mr Browning on an open basis. It noted, however, that this limited disclosure had for a vigorous and partially successful challenging of the evidence by the requester’s counsel. “During the period leading up to the hearing and when it began Mr Browning and his legal representatives had ample opportunity to seek by way of agreement or further direction additional information about the extent, content and nature of the Closed Exemption Evidence and they did not do so”.
Strictly speaking, the UT has declined to issue general guidance on the approach to allowing reliance on closed material at FTT level, but it has made a number of important points.
It observed (para 42) that “the need to avoid disclosure of the requested information is an obvious and good reason for there being closed material and a closed hearing, but in some cases this may not be the only reason that justifies a First-tier Tribunal considering closed material and holding a closed hearing”.
The FTT’s Practice Note on Closed Material in Information Rights Cases (issued in May 2012) was also considered. The UT said this (para 17):
“This does not have the force of a rule of law or a practice direction, and this judgment should not be taken as comprehensively endorsing it, but we do consider that it is something that First-tier Tribunals should take into account and, if they do not apply it in a given case, they should explain why they have not done so. In particular, in our judgment, if no written and reasoned application for there to be closed material and a closed hearing has been made pursuant to that Practice Note, First–tier Tribunals should explain why they have proceeded without one.”
It added this on the FTT’s approach to closed material in general (para 18):
“More generally, we comment that First-tier Tribunals should consider and give appropriately detailed directions and reasons (i) setting out the nature and subject matter of any closed material and hearing, (ii) why they have accepted that they should consider evidence advanced by a public authority (or anyone else) and argument on a closed basis, and (iii) why further information relating to their content has not been provided. If this is done it will provide clarity as to what will be, and has been, considered on a closed basis and why, for example, evidence provided to support an exemption has been so considered and more of it, or about it, has not been disclosed.”
Finally, the UT was clear as to the ongoing nature of these duties (para 39): “throughout the proceedings a tribunal carrying out its investigatory function must keep under review whether information about closed material should be provided to an excluded party in, for example, an anonymised form”.
Clearly, all FTT proceedings involving closed should be conducted in light of the points made above.
Other grounds of appeal: sections 41 and 43 of FOIA
Mr Browning’s other grounds of appeal also failed before the UT. Some of those grounds concerned the FTT’s findings on section 41 of FOIA (actionable breach of confidence). Mr Browning that the disputed information had not been “obtained” from outside the public authority, that the name of a licence applicant does not have the necessary quality of confidence, and that applicants had not imparted licence information in circumstances importing an obligation of confidence. All of those grounds of appeal were dismissed.
More broadly, on the approach to section 41 of FOIA, the UT has said this (para 30):
“It was also common ground before the FTT, and not an issue that was raised or argued before us, that the consideration of whether disclosure would constitute a breach of confidence that is “actionable” incorporates all parts of the breach of confidence action, including the absence of a public interest defence. This accords with existing First-tier Tribunal decisions (see for example, Gurry on Breach of Confidence 2nd edit para 13.130 and in particular HCFC v IC & Guardian News and Media EA 2009/0036). On that approach, the point that s. 41 is an absolute exemption is not as significant as it might first appear because within it there is a need to weigh the competing public interests, and as pointed out in a footnote to that paragraph in Gurry, the reverse approach to weighing the public interest in respect of a breach of confidence to that set out in s. 2 of FOIA in respect of a qualified exemption, if anything, makes it easier to establish the s. 41 exemption but is unlikely to become a determinative factor.”
Mr Browning also challenged the FTT’s conclusions on the detriment likely to arise from disclosure and argued that it had not identified the prejudice to commercial interests or the likelihood of that prejudice (for section 43(2) FOIA purposes).
The UT did have misgivings about the FTT’s comments about ‘chilling effect’ arguments on the evidence, but found that it there had been an error of law, it was at most a makeweight finding which did not suffice to overturn the FTT’s decision.
Ben Hooper acted for the Information Commissioner.
Employment programmes for welfare recipients – often referred to as “workfare” – are highly controversial. In Department for Work and Pensions v Information Commissioner and Zola (EA/2012/0207,0232 and 0233), the First-tier Tribunal considered three FOIA requests for information about companies participating in such programmes. The Tribunal ordered disclosure, rejecting the Department’s reliance on the exemptions in FOIA section 43(2) (prejudice to commercial interests) and section 36(2)(c) (prejudice to the effect conduct of public affairs).
The case related to three programmes run by the DWP: Mandatory Work Activity (MWA); Work Experience (WE); and the Work Programme (WP). MWA provided short term work placements in the local community, usually with a charitable organisation. WE provided placements for 18-21 year old Jobseekers’ Allowance claimants. WP was aimed at those considered to be at risk of becoming long-term unemployed. For each programme, the Government entered into contracts with providers, and these (or their sub-contractors) in turn arranged work placements with various organisations. The three requests sought information as to the identity of organisations that had hosted placements.
The Information Commissioner required the DWP to provide the requested information.
The Commissioner rejected the DWP’s reliance on section 43(2), holding that the exemption was not engaged. The Commissioner considered that the risk of providers withdrawing from the scheme as a result of disclosure would have been capable of engaging section 43(2), but that on the evidence any risk of this nature was speculative. Any harm consisting of increased welfare costs was financial rather than commercial in nature, and did not engage section 43(2). The Commissioner noted the existence of campaign groups and websites opposed to workfare, but said that the extent to which these had influenced any past withdrawals from the scheme was unclear. In order to establish that section 43(2) was engaged, the Commissioner considered that the DWP would have had to indicate how many organisations would have been likely to withdraw as a result of disclosure, and what it would have cost to find alternative work placements; this had not been done.
The Commissioner also rejected the DWP’s reliance on section 36(2)(c). Although the exemption was engaged, on the basis of the opinion of the qualified person (the then Minister for Employment), the public interest in maintaining the exemption was outweighed by the public interest in disclosure.
Before the Tribunal, the DWP disputed the Commissioner’s categorisation of higher welfare and related costs as being “financial” rather than “commercial” in nature. It contended that the Commissioner had required an undue level of detail from the DWP in support of its claim that section 43(2) was engaged. In relation to section 36(2)(c), the DWP argued that disclosure would have been likely to lead to the collapse of the MWA scheme. As to the public interest in disclosure, the DWP contended that this had been greatly over-estimated by the Commissioner: there was already information in the public domain as to the kinds of employers that were participating; there was little public interest in knowing which specific organisations were taking part within any particular area.
The DWP placed evidence before the Tribunal about a survey carried out by the DWP in October and November 2012. The DWP had sought information from contractors, their sub-contractors, and organisations that had hosted placements; the DWP had asked for information about the perceived impact of public awareness of their involvement in the programmes. In March 2013 some organisations had provided further information in support of the DWP’s stance of not releasing the names of placement hosts, and this was also put before the Tribunal by the DWP.
The Tribunal’s conclusion was that section 43(2) was not engaged; and that, although section 36(2)(c) was engaged, the public interest balance favoured disclosure. The Tribunal would have reached the same conclusion as to the public interest under section 43(2), had that exemption been engaged.
In relation to section 43(2), any prejudice relating to increased cost of welfare payments was held to be financial rather than commercial in nature, and irrelevant to the exemption. The Tribunal therefore focused instead on the risk that disclosure would lead participating organisations to withdraw from the schemes. It referred to the “Boycott Workface” website, and various news articles, concluding that media coverage and comment were inevitable and that there was always an inherent risk that participants would be identified. At the time of the requests there were some 200 names of participating organisations already in the public domain. There had not been a “media frenzy” as a result of publication of these names. At most, seven of the 200 names had come in for criticism which had perhaps resulted, or could have resulted, in their withdrawal; but the evidence even in these cases was unpersuasive. The speculative views elicited by the DWP’s survey carried considerably less weight than these real-life examples of what had actually happened where specific organisations had been named.
In relation to section 36(2)(c), the public interest in disclosure outweighed any interest in maintaining the exemption. The schemes were controversial; it was important for the public to see and examine the schemes and how participants performed.
Overall, the case is an example of the Tribunal’s readiness to scrutinise closely any reliance on section 43(2). Speculation about what might happen following disclosure – even when presented in the form of a survey – carried little weight. The Tribunal was much more interested in the specific examples of providers that had been named in the past; and in these cases, the Tribunal considered that the evidence did not support the DWP’s position. Overall, the Tribunal’s approach seems to be that private sector bodies that become involved in a controversial Government programme can expect to be exposed to a degree of scrutiny and criticism; and the Tribunal is reluctant to use this as a basis for protecting those organisations from the effect of disclosure under FOIA.
Timothy Pitt-Payne QC
I blogged a while ago about the ex tempore judgment from the Court of Appeal in a potentially groundbreaking case on damages under section 13 of the DPA, namely Halliday v Creation Consumer Finance  EWCA Civ 333. The point of potential importance was that ‘nominal damages’ appeared to suffice for the purposes of section 13(1), thereby opening up section 13(2). In short, the point is that claimants under the DPA cannot be compensated for distress unless they have also suffered financial harm. A ‘nominal damages’ approach to the concept of financial harm threatened to make the DPA’s compensation regime dramatically more claimant-friendly.
The Court of Appeal’s full judgment is now available. As pointed out on Jon Baines’ blog, ground has not been broken: the ‘nominal damages’ point was a concession by the defendant rather than a determination by the Court. See paragraph 3 of the judgment of Lady Justice Arden:
“… this issue, which was the main issue of the proposed appeal to this court, is now academic as the respondent, CCF, concedes an award of nominal damages is “damage” for the purposes of the Directive and for the purposes of section 13(2) of the Data Protection Act 1998.”
Other potentially important points have also fallen somewhat flat. The question of whether UK law provided an adequate remedy for a breach of a right conferred by a European Directive fell away on the facts (“proof fell short in relation to the question of damage to reputation and credit”), while the provision for sanctions under Article 24 of Directive 95/46/EC was neither directly enforceable to Mr Halliday nor of assistance to him.
Still, the judgment is not without its notable points.
One is the recognition that compensation for harm suffered is a distinct matter from penalties for wrongdoing; the former is a matter for the courts in the DPA context, the latter a matter for the Information Commissioner and his monetary penalty powers. Such was the implication of paragraph 11:
“… it is not the function of the civil court, unless specifically provided for, to impose sanctions. That is done in other parts of the judicial system.”
Another point worth noting is Lady Justice Arden’s analysis of distress and the causation thereof. The distress must be caused by the breach, not by other factors such as (in this case) a failure to comply with a court order. See paragraph 20:
“Focusing on subsection (2), it is clear that the claimant has to be an individual, that he has to have suffered distress, and that the distress has to have been caused by contravention by a data controller of any of the requirements of the Act. In other words, this is a remedy which is not for distress at large but only for contravention of the data processing requirements. It also has to be distress suffered by the complainant and therefore would not include distress suffered by family members unless it was also suffered by him. When I say that it has to be caused by breach of the requirements of the Act, the distress which I accept Mr Halliday would have felt at the non-compliance of the order is not, at least directly, relevant because that is not distress by reason of the contravention by a data controller of the requirements of this Act. If the sole cause of the distress had been non-compliance with a court order, then that would have lain outside the Act unless it could be shown that it was in substance about the non-compliance with the Data Protection Act.”
The claimant had sought to draw an analogy with guidelines and banding for discrimination awards as set by Vento v Chief Constable of West Yorkshire Police  1 ICR 31. The Court of Appeal was not attracted. See paragraph 26:
“In answer to that point, the field of discrimination is, it seems to me, not a helpful guide for the purposes of data protection. Discrimination is generally accompanied by loss of equality of opportunity with far-reaching effects and is liable to cause distinct and well-known distress to the complainant.”
Finally, Lady Justice Arden commented as follows concerning the level of the compensation to be awarded on the facts of this case: “in my judgment the sum to be awarded should be of a relatively modest nature since it is not the intention of the legislation to produce some kind of substantial award. It is intended to be compensation, and thus I would consider it sufficient to render an award in the sum of £750” (paragraph 36).
Lord Justice Lloyd (who, along with Mr Justice Ryder agreed with Lady Justice Arden) did pause to think about a submission on this question ‘if you were so distressed, why did you not complain immediately?’, but concluded that (paragraph 47):
“I confess that I was somewhat impressed at one point by Mr Capon’s submission that it was a surprise, if Mr Halliday was so distressed by this contravention, that he did not immediately protest upon discovering, in response to his first credit reference enquiry, the fact of the contravention, and indeed he did not protest until about a month after the second report had been obtained. But I bear in mind, in response to that, Mr Halliday’s comment that he had had such difficulty in getting any sensible response, or indeed any response, out of CCF at the earlier stage, that it is perhaps less surprising that he did not immediately protest. In any event, the period in question is not a very lengthy one between his discovery of the contravention by his first reference request and his taking action in July. Accordingly, it does not seem to me that that is a matter that should be taken to reduce my assessment of the degree of distress that he suffered.”