A BAD THING?

March 24th, 2011 by Timothy Pitt-Payne QC

The website of the Information Tribunal (or FTT Information Rights, to be precise) is an invaluable source of information.  The lists of current cases make it possible to track the progress of potential test cases, and also give information about hearing dates and venues - essential for any members of the Press or public wishing to attend.  There is all sorts of useful information – e.g. about the Tribunal judiciary.  Perhaps most important of all, there is a searchable and complete collection of Tribunal decisions, together with other information law cases. 

Today the site displays an ominous notice.  As a result of the merger of the Court Service and the Tribunal Service, the site will be archived with effect from 1st April.  Information, forms, and details about services, will be available from www.justice.gov.uk and other sites.  But it is wholly unclear whether the same level of information will be made available as at present; in particular, it is not clear whether tribunal decisions will still be published online.  Although FTT and Upper Tribunal decisons are also available on Bailii, the Information Tribunal website is a much better tool for anyone specifically interested in Information Law.  Let’s hope that all that is happening is a change of web address rather than a change in format or content.           

 

KIRKLEES COUNCIL PROPERTY SEARCH CASE

March 24th, 2011 by Timothy Pitt-Payne QC

We have previously posted about the above decision:  see here.

The case is now available online here on the website of the Upper Tribunal (Administrative Appeals Chamber).

NO PREJUDICIAL INTEREST

March 23rd, 2011 by jamesgoudie

James Goudie QC, instructed by John Bridger of Preston Redman, appeared for Councillor John Beesley, the Deputy Leader of Bournemouth Borough Council, before the First-Tier Tribunal (Local Government Standards).  The Tribunal (Case No: LGS/2010/0533) found that Cllr Beesley had not breached the Code of Conduct.  He had declared personal interests.  They were not also prejudicial interests.  Tribunal Judge Chris Hughes OBE accepted the submission that:

             “The test to be applied under the Code of Conduct is in essence the same as the test for apparent bias.  The member of the public viewing these circumstances would demonstrate two key characteristics – adopting a balanced approach and while not being complacent would not be unduly sensitive or suspicious (Gillies v Secretary of State for Work and Pensions [2006] 1WLR 781).  The matter must be considered from the point of view of an observer who is both informed and fair minded.  The question to be addressed by the member of the public with these characteristics is whether there is a likelihood in other words a real possibility (Porter v Magill [2002] 2AC 357) of bias.”

PERSONAL DATA

March 23rd, 2011 by jamesgoudie

Two decisions on 21 March 2011 of differently constituted First-Tier Tribunals, Johnston v I Co and Brecon Beacons National Park Authority, EA/2010/0130/0131, and Gilbert v I Co and Local Government Ombudsman, EA/2010/0190, both considered the exemption from disclosure constituted by FoIA s40.  In each case the FTT found that individuals were the focus of the information requested and that it constituted personal data.  In each case the FTT considered whether disclosure would breach the first data protection principle under the DPA, in particular whether disclosure would be unfair, whether the disclosure was necessary to promote legitimate interests, and whether disclosure would cause unwarranted interference with the interests of the individuals whose data was in issue, especially in the case of a junior officer and where any legitimate aims of the requester could be achieved by a means that interfered less with the privacy of the individual officer, whilst retaining accountability.

James Goudie QC

CHANNEL 4 APPEAL: FOR FOIA PURPOSES, CONTRACTS ARE SEVERABLE

March 23rd, 2011 by Robin Hopkins

Channel 4 v IC and BSkyB (EA/2010/0134) saw the Tribunal consider a short, but potentially very significant point concerning the application of s. 43(2) FOIA, the exemption for commercial confidentiality, to long and complex contracts.

Channel 4 argued that where the substantial parts of a long and detailed contract are exempt under s. 43(2), then the whole contract is exempt. In other words, the public authority is not required to analyse the contract on a clause-by-clause basis. The Tribunal rejected all of Channel 4′s arguments in support of this position – including arguments based on the construction of s. 43(2), a comparison with the EIR, principles of contract, Veolia, ECHR rights and the cost and expense involved. The established approach, which requires clause-by-clause consideration of the application of exemptions, therefore remains intact.

S. 35 FOIA AND THE DEVELOPMENT OF LEGISLATION – LATEST TRIBUNAL DECISION

March 23rd, 2011 by Robin Hopkins

The Tribunal’s recent decision in Makin v IC (EA/2010/0080 & 81) looks at the application of s. 35 FOIA, the qualified exemption for the formulation and development of government policy, in circumstances where the policy in question was effected through parliamentary legislation.  In particular, the requested information concerned the proposal in what was then the Legal Services Bill to continue the exemption of government lawyers from professional regulation, including the requirement to pay for a practising certificate.

The Tribunal considered the application of subsections 1(a), (2) and (4) of s. 35.

It had no hesitation in confirming that s. 35(1)(a) was engaged, relying on the well-established breadth of terms such as “relates to”. For the purposes of s. 35(2), the Tribunal found that no “statistical information” (a working definition of which was taken from the Ministry of Justice guidance of May 2008) was involved.

As regards s. 35(4) – the subsection concerning factual information used to inform decision-making – the Tribunal found that this subsection “should apply where it was relatively obvious that what was being provided was factual information for the purpose of informing the decision–taker on the background”. In adopting this approach, it applied the guidance from the leading case of DWP v Information Commission (EA/2006/0040), where the Tribunal held that, on the spectrum between pure advice and pure fact, “where the information is firstly, so inextricably connected to the deliberative material that it is difficult to distinguish and secondly, where the vast weight of material is non-factual information, we consider Parliament did not intend the sub-section to apply”.

An important point from this case is the Tribunal’s finding that whenever s. 35 is under consideration, public authorities and the IC must consider whether s. 35(4) applies and if so what affect it has on the public interest balancing test. This had not been done in this case.

As to the public interest, a crucial issue was (as is usual with s. 35 cases), when the policy formulation had come to an end. Answer in this case: the date of Royal Assent given to the bill embodying the policy, namely 30 March 2007. In this case, one of the internal reviews was only completed well after this date – but the Tribunal held that the latest relevant date for assessing the public interest was the date when the review ought to have been completed, in accordance with the Code of Practice. This was well before Royal Assent, meaning that the public interest factors applied as if the policy were still in the process of formulation.

In the event, apart from two pieces of information, the Tribunal found that the public interest favoured the maintenance of the exemption. In so doing, it “took the view that the efficacy of the Parliamentary legislative process took precedence in this context… Whilst s. 35 was not aimed directly at protecting the role of Parliament, insofar as Government policy in relation to legislation underpins this particular role of Parliament, they were intertwined”.

A final interesting point is that the Tribunal firmly endorsed the IC’s flexibility to decide that, although information should have been disclosed at the time, it nevertheless ought not to be disclosed due to fresh circumstances that have arisen since the decision of the public authority. In so doing, the Tribunal relied on obiter dicta from the High Court’s decision in Office of Government Commerce v Information Commissioner [2009] 3 W.L.R. 67 (at paragraph 98).

ACCESSING PROPERTY SEARCH INFORMATION UNDER THE EIR – UPPER TRIBUNAL JUDGMENT

March 18th, 2011 by Anya Proops

In March of last year, I blogged about a first-tier tribunal decision which looked at the question of whether a local authority was obliged under the EIR to allow an applicant to inspect property search information free of charge – see my post on the East Riding v IC case here (see also my post on the High Court judgment in Onesearch here). This is a question which has recently been revisited by the Upper Tribunal in Kirklees Council v IC & Pali Ltd. In Kirklees, a property search company (Pali) had written to Kirklees Council asking that it be allowed to inspect those property search records held by the council which would enable it (Pali) to answer particular questions contained in the relevant property search form issued by the Law Society (the CON29R form). Pali made clear in its request that it expected to be allowed to inspect the records free of charge in accordance with r. 8(2) EIR. The council refused the request and sought to charge Pali a fee for provision of the relevant information under the Local Authorities (Charges for Property Searches) Regulations 2008. The Commissioner concluded that the council ought to have permitted the applicant to inspect the records free of charge under the EIR. The council appealed against that decision. The case was referred directly to the Upper Tribunal.

The council’s principal argument on appeal was that Pali’s request was not a valid information request at all because, as the council put it, the request was a ‘purposive’ request rather than a ‘descriptive’ request – i.e. it was not a valid request because it was delineated by reference to a particular purpose, namely enabling Pali to answer the questions in the CON29R form, rather than one which sought simply to describe the particular information in question. The Upper Tribunal rejected this argument. It held that the terms ‘purposive’ and ‘descriptive’ requests were ‘unhelpful and misleading’ in this context and that, more generally, the distinction the council was seeking to draw would risk imposing technical hurdles on applicants which ‘could risk unduly narrowing access to environmental information’. The Tribunal also rejected a secondary case advanced by the council to the effect that r. 8 operated so as to enable it to charge for locating and retrieving relevant information prior to allowing inspection of that information. It held that r. 8(2) precluded an authority from charging for allowing applicants to inspect information in situ and that a charge was only permissible if copy documents were provided to the applicant or the information was accessed other than by means of in situ inspection. The decision should shortly be available on the Tribunal website.

DEFICIT OF DEMOCRATIC ENGAGEMENT

March 18th, 2011 by jamesgoudie

In Chichester District Council v Friel, Case No. EA/2010/0153, Decision on 16 March 2011, the First-Tier Tribunal was concerned with a request for information with regard to a planning application made by the Council to itself.  The Tribunal rejected arguments by the Council that EIR 12(5)(d), confidentiality, and 12(5)(e), commercial or industrial information, applied.  EIR 12(4)(e), however, internal communication, did apply to a valuation.  The issue therefore was as to the application of the Public Interest Test.  The Tribunal regarded the public interest in favour of disclosure as being enhanced by what it called (para 39) a “deficit of democratic engagement”.  The Tribunal observed (para 29) that whereas, prior to the major changes to local government in 2000, ward members were involved in a variety of decision making Committees, it was commonly the case now that almost all decisions are taken by a very small group of Councillors in Cabinet, and that the ability of Councillors not in Cabinet to scrutinise and thereby render accountable decisions taken which are not in the public domain relies upon either matters going to full Council or the Scrutiny & Overview Committee exercising their ‘call in’ powers. In the instant appeal the decision to sell the land for development had gone to Council in 2003. It had not since been before any Council or Committee meeting. Thus, as at the material time in mid-2009, there had been no formal Councillor review or input to this proposal for almost 6 years. Throughout this period, the issues as to sale, nature of development and planning permission had been dealt with at officer level.  Those opposed to the development were consistently and correctly told that financial viability was not a valid planning consideration and as such, they were told that their concerns in this regard, could not be taken into account.   This left the opponents at a loss as to when and how they could access information on this issue and when and how their concerns could be addressed and their views made known.

As to public interest factors against disclosure, the Council urged that, if disclosure was made, the Council would need to change its processes to its detriment. It was said that the Council would need to take decisions without the benefit of a valuation and/or the valuation would need to be in such vague terms as to be essentially worthless. This would inevitably, it was said, mean that the Council’s decisions would be less effective potentially to the financial detriment of local taxpayers.

As regards the possibility that the Council would change its practices as a result of disclosure, thereby impeding internal communications, the Tribunal (para 40) noted however that there was no evidence of this, merely speculation and assertion on the part of the Council. That this would follow, ignored the developments in local government since the introduction of FOIA and the EIR. The Tribunal expected authorities to understand by now that disclosure in an individual case was specific to the circumstances of that case. In that sense, disclosure under FOIA and EIR is never routine. In any event, any changes to procedure would still need to provide for elected members being properly informed of relevant matters in the decision making process. The Tribunal questioned whether the Council’s reluctance to make disclosure in this case was a product of an old orthodoxy that valuations will never, in any circumstances, be made public.

In all the circumstances, the Tribunal did not find itself able to conclude that the disclosure would be likely (as distinct from possible) to have a negative impact. Given the passage of time since the valuation and the capacity for variable factors to reduce its reliability, the Tribunal had not been satisfied by the Council’s argument that there was an appreciable risk to the receipt of best value.  Moreover, the Tribunal noted that certain of the information contained within the valuation document was already in the public domain.  In all the circumstances, the Tribunal found that the public interest in maintaining the exception did not outweigh the public interest in disclosure.

James Goudie QC

AGGREGATION OF EXCEPTIONS

March 15th, 2011 by jamesgoudie

On 10 March 2011 Advocate General Kokott gave her Opinion in Case C-71/10, OFCOM v Information Commissioner, a reference from the UK Supreme Court.  According to the Environmental Information Directive the right of access of individuals to environmental information can be restricted if disclosure would undermine particular interests deserving of protection provided that in the particular case the public interest served by disclosure does not outweigh the public interest served by refusal.  The question is whether, when deciding upon disclosure of environmental information, individual adversely affected interests which, when taken individually, would not be sufficient to outweigh the public interest served by disclosure can be cumulated and possibly together justify the confidential treatment of information.  The Advocate General answered the question in the affirmative.  She said (para 41): “…  the breakdown of interests meriting protection into different exceptions does not preclude their cumulation. As convincingly argued by the United Kingdom, these exceptions are not always clearly distinguishable from each other. Indeed, the interests meriting protection sometimes clearly overlap.”

The Advocate General accepted that a cumulation of interests cannot create additional exceptions to the right to information, and said that the main issue is whether additional exceptions are created by a cumulation of recognized adversely affected confidential interests during the balancing exercise.  She continued (from para 53): “Cumulation can unquestionably bring about an additional restriction of access to environmental information if several interests together justify a refusal of disclosure even though, when taken in isolation, they would be outweighed by the public interest served by disclosure. It would nevertheless still always be a question of restriction of access based on recognised interests.  I agree with the United Kingdom in considering that this additional restriction correctly applies the principle of proportionality. … if the recognised interests militating against disclosure were together to clearly outweigh the public interest served by disclosure, the disadvantages caused by the disclosure of environmental information would no longer be proportionate to the aims pursued. … The Information Commissioner does indeed fear that the balancing of cumulative interests would be difficult to achieve in practice; however, these difficulties lie less in cumulation itself than in the nature of the balancing exercise between the interests served by disclosure and the interests served by the withholding of information. These interests are generally only comparable with difficulty, so that it is also difficult to weigh them against each other. This balancing exercise is made easier, however, if one applies the requirement of a restrictive interpretation of exceptions during the balancing exercise such that, in the event of doubt, the issue is decided in favour of transparency. … Consequently, the answer to the reference for a preliminary ruling should be that where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception under Article 4(2) of the Environmental Information Directive, but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, the directive requires a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure.”

James Goudie QC

SOWING OF GM-CONTAMINATED SEEDS IS NOT AN ‘EMISSION’ FOR THE PURPOSES OF THE EIR

March 10th, 2011 by Anya Proops

Both the Environmental Information Regulations 2004 (EIR) and the Directive from which it derives (Directive 2003/4/EC) emphasise the importance of permitting the public access to information on ‘emissions’ – see further the fact that a number of the exceptions provided for in the EIR and the Directive are specifically disapplied in the case of emissions information (see r. 12(9) EIR and Art. 4(2) of the Directive). However, one question which is not always easy to answer in practice is what will constitute ‘an emission’ for the purposes of the legislation. In part, this difficulty arises because neither the EIR nor the Directive contains any definition of the word ‘emission’ (although the concept is examined in the Implementation Guide to the Aarhus Convention, which the Directive was itself designed to implement). The question of what will constitute an ‘emission’ for the purposes of the EIR and the Directive was considered for the first time by the Information Tribunal in the case of GM Freeze v IC & DEFRA (EA/2010/0112). In that case, the First Tier Tribunal held (obiter) that the word ‘emission’ did not include the deliberate sowing of genetically-modified seed. The Tribunal’s decision is also worth considering in view of the analysis it contains on the application of the personal data exception provided for in r. 13 EIR.