DOCUMENT CONCERNING SEALING OF ROYAL WILLS EXEMPT UNDER S. 37 FOIA

August 29th, 2011 by Robin Hopkins

Section 37 FOIA (communications with Her Majesty, with other members of the Royal Family or with the Royal Household) was originally a qualified exemption. It has recently been elevated to an absolute one. Brown v IC and Attorney-General (EA/2011/0002) is a new tribunal decision under the old (qualified exemption) regime. It is worth noting for the approach to this exemption, given how rarely it has (until now) surfaced in FOIA litigation.

The case concerned the process for dealing with Royal Wills – in particular the manner in which Royal Wills come to be sealed such that they are not available for public inspection without an application being granted by the Family Court. The Tribunal noted that the primary objective of this practice is the protection of the privacy of the Sovereign. The Appellant, who believes himself to be the illegitimate son of the late Princess Margaret, requested a copy of what had been described orally during earlier court proceedings as a “Practice Direction in respect of the handling of Royal Wills”. The Attorney-General refused, relying on section 37 and the public interest. The Commissioner – and now the Tribunal – have upheld the refusal. The Tribunal found, inter alia, that the practice for sealing Royal Wills raises no constitutional issues concerning the separation of powers.

No analysis and commentary from me on this one, given my involvement in the case (I appeared for the Commissioner, with Jonathan Swift QC for the Attorney-General), but the decision can be found here.

VEXATIOUSNESS IN CONTEXT – ‘RATCATCHER’ AND OTHERS

August 18th, 2011 by Robin Hopkins

There have been two Tribunal decisions this week on s. 14 FOIA – vexatious requests. In both cases, the public authority and the Commissioner had found that s. 14 applied because of the context of the particular request. In one case, the Tribunal agreed: the context involved the requester acting in concert with others in pursuing a targeted campaign of requests. In the other, the Tribunal found that the Commissioner and the public authority had placed too much weight on the context, and had given insufficient consideration to the particular request.

The Appellant in Duke v IC and University of Salford (EA/2011/0060) had been dismissed by Salford University. He contended that his requests for information had a serious purpose connected to a forthcoming Employment Tribunal. Between the end of October 2009 and early February 2010, the University received over 100 requests for information – submitted by 13 individuals – all but three of which were submitted via the WhatDoTheyKnow.com website. To put this pattern in context: during the whole of 2008, the University had received 117 requests submitted by 78 different requestors. The Appellant and others distributed satirical literature and maintained websites critical of the University. One of these was the ‘Ratcatcher’ blog. The University had sought disclosure of the author’s identity in the USA; in subsequent defamation litigation in the UK, the Appellant conceded that he was the author.

The University considered the requests to be a concerted attempt to disrupt its activities by a group of activists undertaking a campaign – effectively a Denial of Service attack in internet parlance. The Commissioner agreed. He also found that some of the requests to the University had been made under pseudonyms.

The Appellant had objected to the Commissioner’s holding of a meeting with the University prior to the issuing of the decision notice. On this, the Tribunal commented that:

“The decision of the IC to meet with the University, while it may be unusual, is within the IC’s powers of investigation. The Tribunal declines to characterise this as creating an inequality of arms that created any unfairness in respect of the Appellant. The IC was, after all, seeking to assess whether the Appellant had been characterised unfairly as vexatious.”

Given the context of the Appellant’s requests and his concerted campaign together with others, the Tribunal had no hesitation in upholding the IC’s findings. There is some further commentary on FOI Man’s blog here.

In contrast, the Tribunal in Gardner v IC and Nottingham City Homes Limited (EA/2011/0054) allowed the appeal, finding that the Appellant’s request had not been vexatious.

The Appellant has been a tenant of Nottingham City Council for more than 30 years. He requested information about public expenditure on neighbouring council flats; his belief was that more money had been spent on the upkeep of other properties than on his. The Commissioner found that, given the context and history of the requests, the Appellant had “stepped over the fine line between persistence and a request being obsessive and unreasonable”.

The Tribunal disagreed. It found that there had been too much focus on the history of relations with the Appellant and a resultant failure to consider the particular request – which the Tribunal considered plainly had a serious purpose – on its merits.

Interesting, the Tribunal did accept that the Appellant’s requests tended to have a harassing effect. In one letter, the Appellant had said this: “Beware the Ides of March, I will have my Retribution.” Nonetheless, this was insufficient to engage s. 14 in these circumstances.

CUMULATING INTERESTS – EUROPEAN COURT DECISION IN THE OFCOM CASE

August 1st, 2011 by Rachel Kamm

Where multiple exemptions under the Environmental Information Regulations 2004 are engaged and there is some public interest in maintaining each exemption, should those public interests be considered cumulatively and weighed together against the public interest in disclosure? Or must the environmental information be disclosed unless the public interest is in favour of maintaining (at least) one particular exemption (considered separately from any others)?

We finally have an answer to this question, after decisions by the Information Tribunal, High Court and Court of Appeal, followed by a referral by the Supreme Court and an opinion by Advocate General Kokott. The answer is that we must cumulate/aggregate the public interests; the Court of Justice of the European Communities has given judgment in OFCOM v Information Commissioner  (Case C-71/10).

The reasoning is characteristically concise. The Court noted that disclosure should be the general rule and “grounds for refusal should therefore be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal” and that the Directive did not set out any particular procedure for Member States to examine the grounds for refusal where there are exceptions to the general rule.

Having set out that context, the Court analysed the text of the Directive and concluded that “ the second sentence of the second subparagraph of Article 4(2) is concerned with the weighing against each other of two overarching concepts, which means that the competent public authority may, when undertaking that exercise, evaluate cumulatively the grounds for refusal to disclose“. Whilst the Directive also emphasised the duty to weigh the interests involved “[i]n every particular case“, this was a reference to the need to weigh the interests “on the basis of an actual and specific examination of each situation“.

The Court noted that the interest in relation to separate exceptions may overlap. It further commented that if the process of cumulating interests were to result in a refusal to disclose, “it would need to be acknowledged that that restriction on access to the information requested is proportionate and accordingly justified in the light of the overall interest represented jointly by the interests served by refusal to disclose“. 

Whilst this decision opens the way to public bodies and Tribunals aggregating public interests under the Environmental Information Regulations 2004, they will need to do so very carefully if the information could not be withheld in reliance on one exemption considered in isolation. In particular, care must be taken to avoid any double-counting if there is any overlap in interests.

Rachel Kamm