Good Things Come to Those Who (Have Inherent) Weight

October 29th, 2014 by Christopher Knight

Philosophically, everything must have an inherent weight. Otherwise it would have no weight at all. But FOIA is not concerned with philosophy; it is much more concerned with who is in charge of the sheep dip, and indeed the levels of public funding for the sheep being dipped. (No points for spotting that reference, Bruce.) As a result, there are often debates in the FOIA case law about whether a particular qualified exemption contains an inherent weight, i.e. is the fact that the exemption is engaged at all sufficient to place some weight in the public interest balance against disclosure? The answer varies according to the particular exemption.

In Cabinet Office v Information Commissioner [2014] UKUT 461 (AAC), the Cabinet Office appealed against a decision of the FTT that the number of times the Reducing Regulation Committee has met should be disclosed. This apparently supremely uninteresting piece of information was withheld in reliance on section 35(1)(b) FOIA, which provides a qualified exemption for information relating to Ministerial communications. The Cabinet Office argued that the FTT had erred in not ascribing an inherent weight to section 35(1)(b), and also that it had misunderstood aspects of the evidence on prejudice presented to it.

The appeal in fact succeeded on the second ground, because Judge Turnbull took the view that the FTT had misunderstood an aspect of the evidence being given to it  – even though it had got it right in other places – and was not sufficiently sure that that would make no difference, so that the case was remitted. That aspect is very fact-specific and unlikely to be of much wider interest, except possibly to avid watchers of the Reducing Regulation Committee.

The Cabinet Office did not succeed on its first ground. Under the existing state of the jurisprudence, section 35(1)(c) (advice of Law Officers) has some inherent weight (HM Treasury v Information Commissioner [2009] EWHC 1811; [2010] QB 563) but that section 35(1)(a) (formulation of Government policy) does not (OGC v Information Commissioner [2008] EWHC 774 (Admin)). Section 42 (legal professional privilege) also has some inherent weight: DBERR v O’Brien [2009] EWHC 164 (QB). Judge Turnbull concluded at [47]-[70] that there was no inherent weight in the section 35(1)(b) exemption. He reasoned that there were a variety of policy justifications underpinning the various limbs of section 35, and they did not all overlap. The fact that the information has merely to “relate to” Ministerial communications means that the exemption could be engaged without bringing into play to any significant extent any of the public policy considerations underlying the exemption. It was not obvious how the information in issue would undermine the convention of collective Cabinet responsibility, or have an effect of the future behaviour of Ministers. The section 35(1)(c) exemption was narrower in that it was more likely that the information would engage the central policy justification for the exemption, but that where it did not there may be situations where even the exemption in s.35(1)(c) can be engaged without any necessary assumption of some inherent weight (see at [61]). Section 42 was different because it did not include the words “relate to” and any disclosure would undermine the single policy justification of protecting privileged access to legal advice.

Judge Turnbull’s analysis at [67] was to set out a test which is more nuanced and contextual than simply an assertion of inherent weight:

I think that some confusion and apparent contradiction has been introduced into the case law by formulating the question as being whether the exemption in a particular subsection of section 35(1) carries inherent weight. In my judgment it is preferable (i) to consider to what extent the public interest factors potentially underlying the relevant exemption are in play in the particular case and then (ii) to consider what weight attaches to those factors, on the particular facts.”

As a result, the FTT had not erred in law. (In fact, the Cabinet Office had not made the argument before the FTT that there should be an inherent weight in section 35(1)(b). That was evidently the correct position to have taken.) It is difficult to argue with the reasoning of Judge Turnbull, and the judgment is a helpful clarification of the law under sections 35(1)(a) and (b), although it perhaps makes the situation slightly less clear in relation to (c), given the reinterpretation of HM Treasury to allow for less/no inherent weight in more tangential cases. The only surprise is that Lord Steyn’s much cited adage from R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at [28] that “in the law, context is everything” did not get another outing.

Robin Hopkins appeared for the ICO.

Christopher Knight

The Government wants to get your PECR up

October 26th, 2014 by Christopher Knight

You – yes, you! – are entitled to FREE compensation! Our records – what records? Magic records! – show that you were missold PPI and can now claim thousands of pounds!

If you haven’t ever had a text message or a phone call along these lines, then you are either managing to live as a hermit or you are extraordinarily lucky. Most of us face spam texts and nuisance cold-calls as a daily fact of life. They are a regular source of irritation and annoyance. They are also blatantly illegal, particularly if you have signed up to the Telephone Preference Service. See: regs 22-23 of the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) (“PECR”), implemented under EU Directive 2002/21/EC.

Unfortunately, the nature of such communications means that it will not be very often that they are a source of “substantial damage or substantial distress”. Yet, that is the test which must be met in order for the Information Commisisoner to impose a monetary penalty notice (“MPN”): section 55A(1) of the Data Protection Act 1998 (implemented as the enforcement regime for PECR as well in a fit of slightly lazy ‘joined-up’ thinking).

As readers of this blog will know, the Upper Tribunal’s interpretation of the MPN regime as applied to PECR in Information Commissioner v Niebel [2014] UKUT 255 (AAC) has had the effect that it will be almost impossible for the ICO to establish substantial damage or distress in spam text message cases (see Anya Proops’ detailed comment here). It is certainly the case that the door remains more ajar in relation to nuisance calls – which by their nature are much more likely to cause genuine distress to some individuals – and the ICO is dealing with a couple of MPN appeals to establish how ajar, but Niebel casts a baleful shadow.

But, to the east, a new dawn may be rising. If the ICO’s war against the orc-like forces of spam is reminscient of the Battle of Helms Deep (and I think we can all agree that it is), then the Secretary of State for Culture, Media and Sport, Sajid Javid, is Gandalf, appearing with the remains of the Rohirrim on the morning of fifth day to turn the tide. For the DCMS has just launched a consultation exercise on amending PECR with a view to altering the test from “substantial damage or distress” to causing “annoyance, inconvenience or anxiety”. On its face, that change will be much more easily met and give PECR some teeth, as well as better implementing the Directive, which did not require anything so high as the section 55A test. The consultation paper can be found here, and the period for responding closes on December 7th. So once you have had fun allocating characters to the players in this area (Is Ed Vaizey Peregrine Took? Is Christopher Graham, the ICO, Aragorn? Is our own Robin Hopkins, counsel for Mr ‘Spamalot’ Niebel, Grima Wormtongue?), do respond to the consultation.

Update

Few areas of the law have such informed and coherent bloggers as information and data protection law, and not surprisingly, the PECR consultation has been grist to the commentariat mill. But at least one leading blogger, Jon Baines, has made the point that the Government’s (and the ICO’s) preferred option from the consultation is actually to remove the threshold entirely. He is right (and however formidable I may be – thanks Jon – I should have made that point). That is what the consultation paper says under option 3 (removing any harm threshold at all). Although it is also fair to say that it is slightly surprising that that is the preferred option, as the rest of the consultation paper appears to be drafted around the utility of adopting the “annoyance, inconvenience or anxiety” threshold. Not only is that what the Government says on the consultation page of its website, but paragraphs 16-20 of the paper (under the heading ‘The Proposal’) talk expressing in terms of the ‘annoyance’ threshold (and cross-refer to that being the test used by Ofcom). At paragraphs 44-45 of the paper the ICO appears to have provided evidence on the different actions it could have taken under an ‘annoyance’ test. Nowhere until the options are presented is it suggested that the talk of “lowering the threshold” might mean removing the threshold altogether. Which might just be an oversight. Or it might indicate that consulting on a preferred no harm option is one of those kite-flying efforts Sir Stephen Sedley warned of in the LRB. Either way, the reader is left less than clear as to what DCMS or the ICO really want.

(Apologies for the lack of LOTR references in this update. To make up for it, do enjoy this video of Ian McKellen explaining to schoolkids why they should revise for their exams. You’re welcome.)

Christopher Knight

Unforgettable that’s what you are – Google Spain revisited

October 13th, 2014 by Anya Proops

The debates over whether the CJEU’s judgment in Google Spain represents an unjustified attack on free speech rights have raged for months now. Interestingly, it seems that some judges at the local level at least are proving somewhat resistant to this highly privacy-centred judgment. Thus, according to online reports, in recent weeks a Dutch preliminary court has apparently held that a man convicted of a serious offence dating back over some years could not rely on Google Spain to have the links to websites referring to the offence excised. According to reports about the judgment (which seems only to be available in Dutch), the court held that information revealing that someone has committed an offence has relevance notwithstanding its vintage and, as such, should not be de-indexed by Google (see here). Outside of Europe, a judge sitting in the Israeli magistrate’s court has apparently refused to countenance a claim against Google based on the so-called right to be forgotten. According to a report in the Israel Hayom online newspaper, the judge held that imposing an obligation on Google to de-index results, even if they were defamatory, would entail converting Google unjustifiably into a ‘super-censor’ (see the report here). It will be interesting to see how the English courts, with their strong tradition of upholding free speech rights, will in due course seek to navigate their way through the challenging jurisprudential landscape set by the CJEU in Google Spain.

Anya Proops

Local Government Transparency Code – Updated

October 7th, 2014 by Christopher Knight

Back in May 2014 the Secretary of State for Communities and Local Government issued the Local Government Transparency Code, and I briefly blogged about that here.

Now, an updated version of the Code dated October 2014 has been issued. Unaccountably, its publication appears to have been overshadowed by Kevin Pietersen’s autobiography, but it might perhaps be unfair to engage in a game of parallels, identifying for example who the “Big Cheese” would be at DCLG. The October 2014 Code is materially the same as its May predecessor (but fully replaces it) and it may assist if my earlier comments are set out again here (with amendments and updated cross-references).

The Code is issued in exercise of the Secretary of State’s powers under section 2 of the Local Government, Planning and Land Act 1980 to issue a Code of Recommended Practice as to the publication of information by local authorities about the discharge of their functions and other matters which he considers to be related.

The Code sets out in some detail in Part 2 the type of information held by local authorities which must be published (some of it annually). This is designed to replicate the requirements prescribed in the Local Government (Transparency) (Descriptions of Information) (England) Order 2014. Part 3 sets out the information which, in the view of the Secretary of State, ought to be published. A helpful Annex A provides the details in tabular form.

Paragraph 17 of the Code provides that: “Where information would otherwise fall within one of the exemptions from disclosure under the Freedom of Information Act 2000, the Environmental Information Regulations 2004, the Infrastructure for Spatial Information in the European Community Regulations 2009 or falls within Schedule 12A to the Local Government Act 1972 then it is in the discretion of the local authority whether or not to rely on that exemption or publish the data.” There is therefore no attempt to override the FOIA exemptions. But where a qualified exemption applies, the appearance of the requested information in one of the categories set out in the Code will have a role (possibly a significant role) in establishing the public interest in support of disclosure. Of course, where the Secretary of State as required – in Part 2 – information to be published, it should be published by the local authority. Any reliance on a qualified exemption will be doomed to fail. Information falling within the scope of Part 3 is also likely to face an uphill struggle to be withheld under FOIA/EIR, but it will be context dependent.

The main substantive difference between the May and October Codes is that the new one has added three datasets to the list of information which must be published: namely information about how the authority delivers waste services, use the parking revenue it collects and tackles fraud.

 

One development between May and October is that the DCLG have obviously been faced with a barrage of questions from concerned Councils. In an attempt to assist, DCLG has also published an accompanying FAQ Guide to the Code, which may help those attempting to practically apply the new Code with what the DCLG was trying to do in particular circumstances.

Christopher Knight

Assessing the FOIA veto power

September 17th, 2014 by Robin Hopkins

For those of you still following the Prince of Wales correspondence veto saga, and who have access to law journals in print or online, you may be interested to read the casenote published in the latest issue of the Law Quarterly Review discussing the Court of Appeal judgment. The casenote is by 11KBW and Panopticon stalwart Chris Knight. The full reference is CJS Knight, ‘The Veto in the Court of Appeal’ (2014) 130 LQR 552.

Loss of personal data: £20k award upheld on appeal

September 16th, 2014 by Robin Hopkins

If you breach your legal duties as regards personal data in your control, what might you expect to pay by way of compensation to the affected individual? The received wisdom has tended to be something along these lines. First, has the individual suffered any financial loss? If not, they are not entitled to a penny under s. 13 DPA. Second, even if they get across that hurdle, how much should they get for distress? Generally, not very much – reported awards have tended to be very low (in the low thousands at most).

All of that is very comforting for data controllers who run into difficulties.

That picture is, however, increasingly questionable. “Damage” (the precondition for any award, under s. 13 DPA) could mean something other than “financial loss” – other sorts of damage (even a nominal sort of damage) can, it seems, serve as the trigger. Also, provided the evidence is sufficiently persuasive, it seems that awards – whether under the DPA or at common law (negligence) – could actually be substantial.

These trends are evident in the judgment of the Court of Appeal of Northern Ireland in CR19 v Chief Constable of the Police Service of Northern Ireland [2014] NICA 54.

The appellant, referred to as CR19, was a police officer with the Royal Ulster Constabulary. Due to his exposure to some serious terrorist incidents, he developed Post-Traumatic Stress Disorder (PTSD); he also developed a habit of excessive alcohol consumption. He left the Constabulary in 2001. In 2002, there was a burglary at Castlereagh Police, apparently carried out on behalf of a terrorist organisation. Data and records on officers including CR19 were stolen.

The Constabulary admitted both negligence and a breach of the seventh data protection principle (failure to take appropriate technical and organisational measures). The issue at trial was the amount of compensation to which CR19 was entitled.

Note the losses for which CR19 sought compensation: he claimed that, as a result of the stress which that data loss incident caused him, his PTSD and alcohol problems worsened, he lost out on an employment opportunity and that his house had been devalued as a result of threats to the property and the package of security measures that had been implemented for protection.

The trial judge heard evidence from a number of parties, including medical experts on both sides. He found some aspects of CR19’s evidence unsatisfactory. Overall, however, he awarded CR19 £20,000 (plus interest) for the Constabulary’s negligence. He did not expressly deal with any award under s. 13 of the DPA.

CR19 appealed, saying the award was too low. His appeal was largely dismissed: the trial judge had been entitled to reach his conclusions on the evidence before him.

Further, the s. 13 DPA claim added nothing to the quantum. The Court of Appeal considered the cases of Halliday (a £750 award) and AB (£2,250) (both reported on Panopticon) and concluded as follows (para. 24):

“In this case we have earlier recorded that three eminent psychiatrists gave professional evidence as to the distress sustained by CR19 as a consequence of the break-in. While accepting that the breach and its consequences in this case are of a different order to the matters considered in Halliday or AB, we conclude that the damages for distress arising from the breach of the Data Protection Act must be considered to be subsumed into the judge’s award which, while rejected as too low by the appellant, was by no means an insignificant award. The assessment took account of the distress engendered by the breach of data protection. We cannot conceive of any additional evidence that might be relevant to any additional damages for distress in respect of breach of section 4. Accordingly, we affirm the award of compensation made by the learned trial judge. However, in view of Arden LJ’s reasoning in Halliday, we conclude that the appellant must in addition be entitled to nominal damages of £1.00 to reflect the fact that there was an admitted breach of section 4 of the Data Protection Act.”

Whilst it is not strictly correct to read the CR19 judgment as affirming a DPA award for £20,000 (that award was for negligence), the judgment is nonetheless interesting from a DPA perspective in a number of respects, including these:

(i) While it was conceded in Halliday that nominal damage suffices as “damage” for s. 13(1) purposes, that conclusion looks like it is being applied more widely.

(ii) One problem in Halliday (and to an extent also in AB) was the lack of cogent evidence supporting the alleged damage. The CR19 case illustrates how evidence, including expert medical evidence, can be deployed to effect in data breach cases (whether based on negligence or on the DPA).

(iii) Unlawful acts with respect to individuals’ personal information can, it seems, lead one way or another to a substantial award. The DPA may aim to offer relatively modest awards (so said the Court of Appeal in Halliday), but serious misuse or loss of personal data can nonetheless be very damaging, and the law will recognise and compensate for this where appropriate.

Robin Hopkins @hopkinsrobin

Closed proceedings in FOIA appeals – new FTT checklist

September 4th, 2014 by Anya Proops

The question of how far tribunals should go in terms of allowing evidence and submissions to be dealt with on a closed basis in FOIA appeals is one that looms large for all FOIA practitioners. Judge Nicolas Warren, the President of the First-Tier Tribunal (Information Rights) has now drafted and circulated to all FTT judges a checklist for dealing with closed proceedings under rule 14 of the Tribunal rules. Not being one to keep the public in the dark about such judicial guidance, Judge Warren has kindly agreed to the checklist being reproduced in full on the blog – see further below:

General Regulatory Chamber (Information Rights) – Rule 14 Check list

  1. Has Rule 14 been correctly applied so far?  Should any closed material be made open?
  2. Is it necessary to hold part of the hearing in closed or do the closed written submissions suffice?
  3. Explain purpose of closed hearing to requestor.
  4. Ask requestor if there are any questions he or she particularly wants the Tribunal to put.  If requestor legally represented then the questions should be in writing.
  5. Is the hearing recorded?  If so, the closed session must also be recorded but separately and with the cd sealed and a note that it must not be opened with the permission of the Tribunal or the UT.
  6. During the closed session, keep a running note of anything new that is said which could properly be said in open session.
  7. At the conclusion of the closed session, agree with the representatives what is to be said to the requestor on return to open by way of:- (a) a gist of what must remain closed. (b)anything new that could have been said in open.
  8. In draft decision include an account of the procedure adopted and indicate what use if any was made of the closed material.

It is clear that this guidance is intended to increase the rigour and care with which tribunals approach the issue of closed hearings and, hence, to intensify compliance with natural justice principles. For further discussion of closed procedures in the information tribunal see further my previous posts on the Court of Appeal case of Browning here and here.

Anya Proops

Data protection and journalism – ICO publishes guidance

September 4th, 2014 by Anya Proops

The Information Commissioner has today published his keenly anticipated guidance on ‘Data Protection and Journalism: A Guide for the Media’.  The guidance has been published following a lengthy consultative process and in response to a recommendation made in the Leveson report. The guidance has much to say on the controversial subject of the journalistic exemption provided for under s. 32 DPA. As readers of this blog will know, section 32 largely disapplies the various obligations provided for under the DPA where the conditions provided for in s. 32(1) are met:

‘32(1)     Personal data which are processed only for the special purposes [i.e. the purposes of journalism, literature and art] are exempt from any provision to which this subsection relates if—

(a)     the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material,

(b)     the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and

(c)     the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes.’

The guidance analyses these various conditions at some length. Below are some edited highlights, along with some initial commentary.

  • Meaning of ‘Journalism’The guidance concludes that, following the ECJ’s judgment in the Satamedia case (Case C-73/07), the concept of journalism should be ‘interpreted broadly ’. Thus, ‘It will clearly cover all output on news, current affairs, consumer affairs or sport. Taken together with art and literature, we consider it is likely to cover everything published in a newspaper or magazine, or broadcast on radio or television – in other words, the entire output of the print and broadcast media, with the exception of paid-for advertising’(p. 29). However, it will also cover the activities of citizen bloggers, insofar as they relate to public interest journalism (p. 30). Moreover ‘non-media organisations may be able to invoke the exemption. If their purpose in processing the specific information is to publish information, opinions or ideas for general public consumption, this will count as a journalistic purpose – even if they are not professional journalists and the publication forms part of a wider campaign to promote a particular cause or achieve a particular objective. However, the information must be used only for publication, and not for the organisation’s other purposes’(p. 30).

 

  • Processing data ‘only for’ special purposes – The guidance effectively assumes that traditional media organisations will typically meet this requirement in respect of their data processing activities. So far as non-media organisations are concerned, it posits that they will not be able to rely on the s. 32 exemption if, in addition to processing the data for journalistic purposes, the data ‘are also used for the organisation’s other purposes – eg in political lobbying or in fundraising campaigns – the exemption will not apply’ (p. 31). [Note - this obviously begs the question of whether there is any neat dividing line between campaign-led journalism (which the Commissioner seems to think falls within the scope of s. 32) and ‘political lobbying’. It also begs the question whether traditional media organisations may themselves be engaged in political lobbying as an integral part of their publication activities].

 

  • ‘With a view to publication’ – The position adopted in the guidance is that, provided that the data processing is being undertaken with ‘the ultimate aim of publishing a story’, the s. 32(1)(a) requirement is fulfilled. The guidance goes on to state ‘In short, this means that the exemption can potentially cover any information collected, created or retained as part of a journalist’s day-to-day activities, both before and after publication. However, the exemption cannot apply to anything that is not an integral part of the newsgathering and editorial process’ (p. 31). [Note – as will be apparent the guidance seems to embody a very broad approach to s. 32(1)(a)].

 

  • Balancing rights The guidance repeatedly asserts that, when handling personal data in the media context, decision-makers should be weighing the public interest in publication/pursuing the story as against the privacy rights of affected data subjects. Thus, for example, on the subject of publication, the guidance states Publication is likely either to be fair and to comply with the DPA or to fall within the journalism exemption if it can be shown that someone at an appropriate level considered whether the public interest in publication outweighed individual privacy in the circumstances of the case and can give good reasons for this view when challenged’ (p. 13, emphasis added). When specifically discussing the s. 32 exemption, the guidance states: ‘You must reasonably believe publication is in the public interest – and that the public interest justifies the extent of the intrusion into private life. You must also reasonably believe that compliance with the relevant provision is incompatible with journalism. In other words, it must be impossible to comply and fulfil your journalistic purpose, or unreasonable to comply in light of your journalistic aims, having balanced the public interest in journalism against the effect upon privacy rights.’ (p. 27 emphasis added and see pp. 33-34). The guidance invites a similar balancing exercise to be conducted as and when journalists/editors are deciding whether or not to notify a data subject about the fact that their data is being collected or, further, whether or not to collect data using covert means (p. 10). [Note - this analysis is likely to be regarded as particularly controversial. This is because it arguably marks a significant departure from the language of the s. 32 exemption, which on its face seems to presuppose that the focus of the analysis is simply on whether publication is in the public interest, with no balancing of that interest as against the privacy rights of data subjects].

 

  • Responsibility for applying the public interest testThat said the guidance repeatedly states that, so far as the s. 32 exemption is concerned, it is journalists/editors and not the Commissioner who are responsible for deciding what is ‘in the public interest’. The Commissioner sees his role as testing whether the decisions of the relevant journalist/editor is reasonable, albeit that the guidance also states that he will not ‘disregard [the media’s views] lightly’ (p. 35).

 

  • ‘Compliance incompatible with the special purposes’ In his original draft guidance, the Commissioner suggested that, in order to invoke s. 32, it would have to be established that compliance with the provisions of the DPA would make it impossible to fulfil the journalistic purpose (see p. 30: ‘you must decide that the provision in question would stop you from doing your job’). The final version of the guidance states that, in order for reliance to be placed on the s. 32 exemption: …it must be impossible to comply and fulfil your journalistic purpose, or unreasonable to comply in light of your journalistic aims, having balanced the public interest in journalism against the effect upon privacy rights’ (p. 27, emphasis added). The underlined section of the citation indicates a more flexible test than the ‘you cannot do your job’ test suggested in the draft guidance (see further p. 37).

 

The guidance also contains the following noteworthy conclusions:

  • NotificationWhere media organisations are gathering data about individuals they should as a matter of course notify them of this fact, unless this is not practicable or it would undermine the journalistic activity. In deciding whether or not to notify, consideration should be given to the level of privacy intrusion resulting from the processing (pp. 9-10).

 

  • Covert methodsCovert methods should be used only where this is justified in the public interest, taking into account the adverse effects on the individual’s privacy. Even if covert methods have been used, once the data has been obtained the issue of notifying the data subject should be considered (p. 10).

 

  • Data retention – Data should be retained for no longer than is necessary and, any data which is retained, should be regularly reviewed in order to assess its utility. Contact details and background research are a vital journalistic resource, and you are likely to want to keep them for long periods or indefinitely, even if there is no specific story in mind at present. But you are ‘processing’ personal data just by keeping it, so you must comply with the DPA’ (p. 11). [This latter conclusion represents an important concession by the Commissioner that, in the context of journalism, data archives are likely to have an ongoing utility, even if they are not being actively deployed in the context of a current story].

 

  • Confidential sources – The guidance makes clear that the subject access regime cannot be used to gain access to information identifying confidential journalistic sources. Indeed, it confirms that disclosure of such information is itself likely to amount to a breach of the DPA ‘in many cases’ (p. 16).

 

  • Section 55 offences– The guidance states that, where you knowingly or recklessly obtain or disclose personal data without the consent of the relevant data controller, you may be committing a criminal offence under s. 55 DPA, even if your activities fall within the scope of s. 32. This is because the public interest defence available in respect of s. 55 offences holds you to a higher standard than the standard imposed under s. 32 (p. 10).

Finally, I should add that many of the principles identified in the guidance are likely to be subject to scrutiny and debate in the context of the ongoing Steinmetz v Global Witness case (discussed here), which is now before the Commissioner .

Anya Proops

Information Tribunal Consultation

August 18th, 2014 by Christopher Knight

The Senior President of Tribunals, Sullivan LJ, has launched a consultation paper on altering the composition of the First-tier Tribunal (General Regulatory Chamber) in some Information Rights cases. With the support of GRC Chamber President, Judge Warren, it is proposed to remove the requirement that a judge sit with two non-legal members and allow the Chamber President flexibility to direct that certain cases be heard by a judge alone.

From the consultation document, it does not appear that the formal Composition Practice Statement will set out itself when non-legal members will be used, but the Chamber President’s anticipation is stated to be that a judge alone will be used in more procedural cases, such as whether the information is held, or time limit issues, or whether the cost of compliance limits are breached, or whether the information is readily accessible by other means. A single judge may also be used where the judge is already familiar with the evidence because of previous involvement with the case and all parties are content that a decision should be taken without a hearing. Other cases, and therefore questions of the balance of the public interest, will continue to be heard by a panel of three.

Consultation responses are to be sent by 3 October 2014.

The details of the questions, and the address for responses, can be found in the consultation paper here.

Christopher Knight

 

Facebook, FOI and children

August 6th, 2014 by Robin Hopkins

The Upper Tribunal has got its teeth into personal data disputes on a number of occasions in recent months – Edem was followed by Farrand, and now Surrey Heath Borough Council v IC and Morley [2014] UKUT 0330 (AAC): Morley UT decision. Panopticon reported on the first-instance Morley decision in 2012. In brief: Mr Morley asked for information about members of the local authority’s Youth Council who had provided input into a planning application. The local authority withheld the names of the Youth Councillors (who were minors) under s. 40(2) of FOAI (personal data). In a majority decision, the First-Tier Tribunal ordered that some of those names be disclosed, principally on the grounds that it seemed that they appeared on the Youth Council’s (closed) Facebook page.

The local authority and the ICO challenged that decision. The Upper Tribunal (Judge Jacobs) has agreed with them. He found the dissenting opinion of the First-Tier Tribunal member to have been the more sophisticated (as opposed to the overly generalised analysis of the majority) and ultimately correct. The Youth Councillors’ names were correctly withheld.

In his analysis of the First Data Protection Principle, Judge Jacobs was not much bothered by whether fairness or condition 6(1) (the relevant Schedule 2 condition) should be considered first: “the latter is but a specific instance of the former”.

Judge Jacobs found that there was no sufficient interest in the disclosure of the names of the Youth Councillors. He also rejected the argument that, by putting their names on the relevant Facebook page, the data subjects had implicitly consented to public disclosure of their identities in response to such a FOIA request.

Judge Jacobs stopped short, however, of finding that the personal data of minors should never be disclosed under FOIA, i.e. that the (privacy) interests of children would always take precedence over transparency. Maturity and autonomy matter more than mere age in this context, and sometimes (as here) minors are afforded substantial scope to make their own decisions.

Morley is an important case on the intersection between children’s personal data and transparency, particularly in the social media context, but – as Judge Jacobs himself observed – “it is by no means the last word on the subject”.

There were 11KBW appearances by Joseph Barrett (for the local authority) and Heather Emmerson (for the ICO).

Robin Hopkins @hopkinsrobin