PLANNING DECISIONS & HISTORIC BUILDINGS: PUBLIC SCRUTINY TRUMPS COMMERCIAL CONFIDENTIALITY

May 28th, 2010 by Robin Hopkins

Local planning authorities will wish to take careful note of the recent Tribunal decision in Bristol City Council v ICO and Portland and Brunswick Squares Association (EA/2010/0012), which will please residents’ associations, conservation groups and others wishing to scrutinise planning decisions about historic buildings.

 

PPG 15 (a Planning Policy Guidance document) requires that, where a building is listed or makes a positive contribution to a conservation area, it should only be demolished if there is “clear and convincing evidence that all reasonable efforts have been made to sustain existing uses or find viable new uses and these efforts have failed”. Bristol CC granted permission to demolish a listed building in its ownership, relying for PPG 15 purposes on the developer’s viability reports which apparently showed alternative uses of the building to be commercially unviable. It subsequently refused to disclose those reports, relying on the exemption at regulation 12(5)(e) of the EIR 2004, which applies to the extent that disclosure “would adversely affect … the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest”.

 

The requesters argued that a reasonable person would not regard these reports as confidential because the planning process is one that assumes and requires public involvement. The Tribunal disagreed, and found that regulation 12(5)(e) was engaged.

 

It went on to find, however, that the public interest favoured disclosure, given the decisiveness of these reports in a matter which had aroused substantial local controversy. The Tribunal considered it proper to take into account the “general mismatch between the resources of developers and residents’ groups” and noted that “so far as PPG 15 viability reports are concerned, it seems to us that developers will not be able to refuse to supply them if they want to obtain the relevant consent but that, given their hypothetical nature, it may be possible for them to construct such reports in a way that does not reveal sensitive commercial information specific to themselves”.

 

The Tribunal stressed that it was not setting down a general precedent concerning planning decisions, and that absent PPG 15 (or, presumably, its successor guidance PPS 5) or council ownership of the building in question, its decision might have been different. Where those two factors are present however, public accountability trumps commercial confidentiality.

NEW POLITICS, OR SAME OLD STORY?

May 22nd, 2010 by Timothy Pitt-Payne QC

On 19th May I gave a paper at 11KBW’s Information Law seminar, entitled “Information Law in the new Parliament”.  This was a discussion of the new coalition government’s proposals relating to information law.  On the following day, “The Coalition:  our programme for government” was published, giving  a much fuller account of the new Government’s programme.

I am revising my paper to take account of the new document.  I will be posting the revised paper here, in the course of next week.

11KBW INFORMATION LAW SEMINAR – FOIA UPDATE PAPER

May 20th, 2010 by Anya Proops

Many thanks to all those who attended 11KBW’s Information Seminar last night. For those of you who were unable to attend, you can find a copy of my paper on ‘FOIA – Recent Developments’ here.

The paper touches on the following themes:

·         the issue of aggregating public interest considerations where multiple exemptions are in play (IC v Office of Communications);

 

·         protecting confidential and commercially sensitive information (South Gloucestershire v IC; University of Central Lancashire v IC  and Higher Education & Funding Commission for England v IC);

 

·         how the tribunal approaches cases under FOIA where the health and safety of the public may be put at risk as a result of disclosure (People for Ethical Treatment of Animals v IC & Oxford University and Kalman v IC & Department for Transport (forthcoming));

 

·         the timing of obtaining the opinion of the qualified person for the purposes of s. 36 FOIA (the prejudice to public affairs exemption) (Roberts v IC & DBIS and University of Central Lancashire v IC);

 

·         the application of the personal data exemption under s. 40 FOIA, particularly in respect of statistical data (Department of Health v IC & Pro-Life Alliance and Magherafelt DC v IC);

 

·         late reliance on exemptions (CPS v IC and DEFRA v IC & Birkett);

 

·         allowing a complainant’s representative to access closed material and participate in the closed session (PETA v IC & Oxford University and DEFRA v IC & Birkett); and

 

·         access to property search records (East Riding v IC & York Place and OneSearch Direct v City of York Council).

It also includes a section setting out some practical tips for those involved in information tribunal litigation.

Tim Pitt-Payne QC also presented at the seminar. His paper was on the subject of ‘Information Law in the New Parliament’. An updated version of Tim’s paper, reflecting political developments being reported today, will appear on the blog within the next week.

UK interception regime upheld in Strasbourg

May 18th, 2010 by Ben Hooper

The European Court of Human Rights handed down a significant judgment today in Kennedy v. UK (application no. 26839/05).

A warrant under s. 8(1) of the Regulation of Investigatory Powers Act 2000 permits the interception of the communications of a particular person (or particular set of premises). Mr Kennedy sought to challenge the Art. 8 compatibility of the s. 8(1) warrant regime, and in particular sought to criticise its foreseeability. The Court unanimously rejected his challenge and, in a relatively detailed judgment, upheld the compatibility of the domestic law.

The case is also interesting for the Court’s analysis of Mr Kennedy’s Art. 6 complaint. Mr Kennedy had brought domestic proceedings in the Investigatory Powers Tribunal, which had resulted in two public decisions on legal issues, together with a final ruling that no determination had been made in his favour (i.e. that there had either been no interception, or that any interception that had taken place had been lawful). In Strasbourg, Mr Kennedy complained that the restrictive procedures of the Tribunal had breached Art. 6. In its judgment, the Court avoided deciding whether Art. 6 applied to such proceedings, but went on to confirm that if Art. 6 did apply then the Tribunal’s procedures satisfied its requirements.

FROM BIG BROTHER SOCIETY TO BRAVE NEW WORLD?

May 12th, 2010 by Timothy Pitt-Payne QC

The Conservative/Lib Dem coalition agreements are available here.  Under the heading “Civil Liberties” there are a number of points that should interest readers of this blog.  These include:

* the scrapping of the ID cards scheme, the National Identity Register, the next generation of biometric passports and the Contact Point database;

* outlawing the fingerprinting of children at school without parental permission;

*  extending FOIA to provide greater transparency;

* adopting the Scottish model for the DNA database;

*  further regulation of CCTV; and

* ending the storage of internet and email records without good reason.

Taken together these suggest that information law issues will continue to be centre stage in political terms.

COURT OF APPEAL JUDGMENTS ON USE OF CLOSED MATERIAL PROCEDURE IN CIVIL LITIGATION

May 6th, 2010 by Anya Proops

On Tuesday of this week, the Court of Appeal handed down three important judgments on the question of how, in the context of civil litigation, courts should approach cases where the State is seeking to advance part of its case through a closed material procedure. The closed material procedure effectively operates to allow the State to put evidence and arguments before the court in closed session, which is to say in the absence of the other parties and their representatives. The excluded parties and their representatives will not be given access to any closed evidence or arguments. The procedure typically entails arrangements whereby the excluded parties will be represented in the closed session by a special advocate. All three appeals were decided by the same panel of judges, namely: Lord Neuberger MR, Maurice Kay LJ, Sullivan LJ. The following is a summary of the judgments:

HOME OFFICE v TARIQ [2010] EWCA Civ 462 – T had been employed by the Home office as an immigration officer. T’s brother and cousin had been arrested in relation to alleged terrorist offences. The cousin was convicted and the brother released without charge. T was suspended from duty due to national security concerns. T, who was a Muslim of Asian/Pakistani origin, went on to bring claims in the employment tribunal of race and religious discrimination. The tribunal held that it had statutory powers under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 to hear certain evidence relating to the claims in closed session, albeit that T would be represented in that session by a special advocate. The Employment Appeal Tribunal held that the decision to hear evidence in closed session was not unlawful but that T and his representatives should be informed of the gist of the closed material which was to be heard in the closed session. The Secretary of State appealed the decision that T should be told the gist of the closed material. T cross-appealed on the grounds that the convening of a closed session was itself unlawful under the European Directives from which his right to claim discrimination was derived and, further, under Art. 6 ECHR. The Court of Appeal, upholding the EAT’s judgment, held that: (a) the closed materials procedure, which entailed the use of a special advocate to represent T’s interests, did not contravene either the Directives or Art. 6 of the Convention; and (b) following Secretary of State for the Home Department v AF (No.3) [2009] UKHL 28, [2009] 3 WLR 74, T was entitled to know the gist of the closed material so that he could fairly and effectively pursue his claims.

 

BANK MELLAT v HM TREASURY [2010] EWCA Civ 483 – B was a bank which had been made subject to a direction under the Financial Restrictions (Iran) Order 2009. The order had been made pursuant to the Counter-Terrorism Act 2008. The Direction prohibited all persons operating in the financial sector from entering or participating in any transaction or business relationship with B. The basis of the Direction was that M ‘continued to engage in a pattern of conduct which supported and facilitated Iran’s proliferation-sensitive activities, that nuclear-related companies received funds from B, and that a company with alleged connections with other nuclear-related companies conducted business using B’. B sought to challenge the Direction under CPR 79. CPR 79 contains provisions allowing for a closed materials procedure to be adopted. T wished to treat certain evidence as closed evidence under the closed material procedure. B challenged T’s attempt to withhold the closed evidence from it. The High Court held that T was obliged under Art 6 of the Convention to afford B sufficient disclosure to enable it to give effective instructions about the essential allegations made against it. HELD: The Court of Appeal held that, where disclosure of evidence might be contrary to the public interest, Art 6 permitted a balancing exercise to be undertaken. However, in line with Tariq v Home Office, B should be given the gist of the information being withheld so that he could give effective instructions in relation to the case being put against him. The information provided to B had to be sufficient to enable B to give sufficient instructions not merely to deny, but actually to refute the essential allegations relied on by T.

 

BISHER AL RAWI & 5 ORS v SECURITY SERVICE & Ors [2010] EWCA Civ 482 – The appellants (X) appealed against a decision of the High Court that, as a matter of principle, it was open to the court to order a closed material procedure in the context of a civil claim for damages. X were former Guantanamo detainees. They had made various claims against the respondents (Y) including claims for damages for false imprisonment, trespass to the person, torture and negligence. Y invited the court to apply a closed material procedure which would enable them to rely on pleadings and evidence which would not be disclosed to X or their representatives, albeit that it would be disclosed to a special advocate representing X’s interests. Y argued that this approach was necessary in the public interest. X’s position was that it was not open to Y to use a closed material procedure and that its only option was to rely on the public interest immunity (PII) procedure. Under that procedure, any evidence which was subject to PII would be excluded altogether from the litigation process, which meant that neither party could rely upon it. Y argued that the closed material approach was preferable because the court would be more likely to arrive at a fair result if it could see the relevant material. HELD: The Court of Appeal, overturning the High Court’s judgment, held that it was not open to the court to order a closed material procedure in relation to the trial of an ordinary civil claim. The principle that a litigant should be able to see and hear all the evidence seen and heard by the court determining his case was so fundamental that, in the absence of parliamentary authority, no judge should override it in relation to an ordinary civil claim. The Court commented obiter that different considerations might apply where the proceedings did not only concern the interests of the parties but also had a significant effect on a vulnerable third party or the wider public interest. However, those considerations did not apply in the instant proceedings where the judge would be called upon to sit purely as an arbiter between the parties and no “triangulation of interests” would be involved.

 

What these judgments show collectively is just how difficult it is to strike a fair balance between the important public interest in protecting the basic rights of individuals to know what case is being put against them and the need to avoid disclosures which would themselves damage the public interest, for example, by jeopardizing national security. They also confirm that a distinction is to be drawn between those cases where there is a specific statutory or Parliamentary authority for a closed material procedure to be adopted (Tariq and Bank Mellat) and those cases where no such authority exists (Al Rawi). In respect of the latter cases, the Court of Appeal has effectively held that: (a) in general, the only procedural course available to the State is to make an application for evidence to be excluded under the PII procedure; although (b) there may be cases where exceptionally third party interests or the public interest warrant a different approach being adopted.

 

 

GOOGLE IN EUROPE – PRIVACY CONTROVERSIES CONTINUE

May 2nd, 2010 by Anya Proops

In March 2010, we posted on a New York Times article which explored how Google’s quest to increase access to information via the internet appeared to be clashing with European privacy laws. The article followed in the wake of the prosecution in Italy of Google executives for violating Italian privacy laws after Google allowed a user to post a video showing an autistic boy being bullied. More recently, further controversies over Google’s record on privacy rights have emerged. First, privacy regulators from a number of different countries, including our own Information Commissioner, Christopher Graham, wrote a joint letter to Google’s chief executive and challenging him to improve protections for users, thereby highlighting concerns that Google is not doing enough to protect the privacy of users – see further this article in the Guardian dated 20 April 2010. Second, last week reports emerged that German regulators had renewed their criticism of Google’s Streetview when it emerged that Google was using the Streetview system to archive information about the location of household wireless networks – see this article in the New York Times dated 29 April 2010. What these developments suggest is that the clash between European social values and the expansion of Google’s techno-commercial empire is likely to continue for some time to come.