DUTY TO PUBLISH

September 30th, 2011 by jamesgoudie

Part 2 of the Local Government, Planning and Land Act 1980 (Sections 2 to 4) relates to publication of information by local authorities.  These provisions implemented some of the proposals which were contained in a consultation document, “Publication of Financial and Other Information by Local Authorities”, issued by the Department of the Environment in October 1979.  As originally envisaged, the placing of a duty upon local authorities to publish information with regard to the discharge of their functions was to be secured primarily by regulations made by the SoS under the Act, but with supplementation from a Code of Practice prepared jointly by CIPFA and SOLACE.  As enacted, s2 makes a Code of Recommended Practice (or more than one) the primary vehicle for securing publication by specified authorities of this information, the SoS retaining a fallback power to enable him to make regulations requiring authorities to comply with any provision in the Code or Codes if in some way they fail to do so.  S3 gives the SoS power to make regulations in order to secure that where they are not already doing so authorities publish the information which is required by any code of recommended practice issued under s2.

Pursuant to s2, on 28 September 2011 the SoS published a Code of Recommended Practice for (English) Local Authorities on Data Transparency.  Paragraph 12 states that, as a minimum, the public data, meaning the objective, factual data, on which policy decisions are based and on which public services are assessed, or which is collected or generated in the course of public service delivery, that should be released are:

  • Expenditure over £500, (including costs, supplier and transaction information).  Any sole trader or body acting in a business capacity in receipt of payments of at least £500 of public money should expect such payments to be transparent.

 

  • Senior employee salaries, names (with the option for individuals to refuse to consent for their name to be published), job descriptions, responsibilities, budgets and numbers of staff.  ‘Senior employee salaries’ is defined as all salaries which are £58,200 and above (irrespective of post), which is the Senior Civil Service minimum pay band.  Budgets should include the overall salary cost of staff reporting to each senior employee.

 

  • An organisational chart of the staff structure of the local authority including salary bands and details of currently vacant posts.

 

  • The ‘pay multiple’ – the ratio between the highest paid salary and the median average salary of the whole of the authority’s workforce.

 

  • Councillor allowances and expenses.

 

  • Copies of contracts and tenders to businesses and to the voluntary community and social enterprise sector.

 

  • Grants to the voluntary community and social enterprise sector should be clearly itemised and listed.

 

  • Policies, performance, external audits and key inspections and key indicators on the authorities’ fiscal and financial position.

 

  • The location of public land and building assets and key attribute information that is normally recorded on asset registers and

 

  • Data of democratic running of the local authority including the constitution, election results, committee minutes, decision-making processes and records of decisions.

Paragraph 20 states that the Government believes that local transparency can be implemented in a way that complies with the DPA.

FROM NAKED PHOTOS TO NUCLEAR ENRICHMENT: ROUNDUP OF NEW TRIBUNAL DECISIONS

September 26th, 2011 by Robin Hopkins

The past week saw a slew of new decisions from the First-Tier Tribunal. Here is Panopticon’s highlights package.

Sections 41 (information obtained in confidence) and 43 (commercial prejudice)

In DBIS v IC and Browning (EA/2011/0044), the requester (a Bloomberg journalist) had sought information from the Export Control Organisation in connection with licences issued for the exporting to Iran of “controlled goods” – explained by the Tribunal as “mainly military, dual use (potentially military), equipment designed for torture or repression or sources of radio-activity”. The relevant public authority, the Department for Business, Innovation & Skills, refused the request, relying on sections 41 and 43. The IC found for the requester on the narrow basis that, whilst disclosure would result in a breach of confidence, no commercial detriment would be suffered by the licence applicants as a result. Subsequent evidence from the Department persuaded the IC to change position and support the appeal, which was resisted by the applicant. In a decision which turned on the evidence, the Tribunal allowed the appeal, and found both sections 41(1) and 43(2) to be effective.

Section 42 (legal professional privilege)

Two recent decisions on this exemption. Both saw the Tribunal uphold the refusal, applying the established approach under which this exemption has a strong in-built public interest. Szucs v IC (EA/2011/0072) involved an FOIA request about an earlier FOIA request (the appellant requested the legal advice and associated documents provided to the Intellectual Property Office about how to deal with a previous FOIA request made by the appellant’s husband). Davis v IC and the Board of Trustees of the Tate Gallery (EA/2010/0185) is eye-catching primarily because it concerned the Tate’s legal advice concerning the inclusion in an exhibition of a photograph of the actress Brooke Shields, aged ten, naked, entitled “The Spirit of America” (the Tate had initially proposed to include this in an exhibition, but ultimately withdrew the photograph).

Section 40 (personal data)

Beckles v IC (EA/2011/0073 & 0074) concerned the identifiability of individuals from small sample sizes, in the context of information about dismissals, compromise agreements and out-of-court settlements. The appellant asked Cambridge University for information on (among other things) the number of employees who received post-dismissal settlements. The answer was a low number. He asked for further details concerning the settlement amounts, rounded to some appropriate non-exact figure. This, said the Tribunal (applying the Common Services Agency/Department of Health approach to identifiability from otherwise anonymous figures) was personal data, the disclosure of which would be unfair. Its reasoning is summed up in this extract:

“Information as to the settlement of a claim made by an identified individual relating to his or her employment is undoubtedly personal data. The question is whether the four individuals or any of them could be identified if the information requested were disclosed, even in approximated form…. Cambridge University is made up of a large number of much smaller academic or collegiate communities. It is likely that a number of colleagues or friends will be aware that a particular individual settled a claim with the University within the time-scale specified. They will be aware of the general nature of that person`s employment. This is a small group of claims in a relatively short period. In the form originally requested it is readily foreseeable that one or more of the four will be identified.”

Sections 24 (national security) and 27 (international relations)

Burt v IC and MOD (EA/2011/0004) concerned information gathered by staff of the UK Atomic Weapons Establishment on an inspection visit to a United States atomic energy facility, as a learning exercise regarding the proposed development of an enriched uranium facility at Aldermaston. The US had expressed its desire to maintain proper confidence in what it regarded as a sensitive area. The MOD refused the request, relying on sections 27 and 24. By the time of the appeal, only a small amount of information had not been disclosed. This was primarily of a technical nature, containing observations about the operation of plant, machinery, procedures and processes at the US facility.

The Tribunal upheld the MOD and Commissioner’s case as regards the outstanding material. As regards section 27, the Tribunal applied the principles from Campaign against the Arms Trade v IC and MOD (EA/2006/00040). It observed, however, that confidential information obtained from another country would not always be protected by section 27: it was “perhaps axiomatic that the foreign State will take the United Kingdom as it finds it including but not limited to the effect of its own domestic disclosure laws. It follows that there may well be cases where information otherwise imparted in confidence from a foreign State to a United Kingdom authority would need to be considered on its own merits as to whether some form of disclosure should be made or ordered whether under FOIA or under similar analogous legislation or principles such as the UK data protection principles.”

As regards section 24, the Tribunal applied Kalman v IC and Department of Transport (EA/2009/0111) (recourse to the exemption should be “reasonably necessary” for the purpose of safeguarding national security), and Secretary of State for the Home Department v Rehman [2003] 1 A 153 (the threat to national security need not be immediate or direct).

Burt is also an example of a “mosaic effect” case: taken in isolation, the disputed information may appear anodyne, but the concern is with how it might be pieced together with other publicly available information.

Section 14(1) FOIA (vexatious requests)

Dransfield v IC (EA/2011/0079) is an example of the Tribunal overturning the Commissioner’s decision that section 14(1) had been engaged (for another recent example, see my post here). As with many such cases, the history and context were pivotal. Given that it is the request, rather than the requester, which must be adjudged to be vexatious, how should the context be factored in? The Tribunal gave this useful guidance:

“There is, however, an important distinction to be drawn between taking into account the history and context of a request, as in the cases referred to above, and taking into account the history and context of other requests made by a requester or other dealings between the requester and the public authority. The former is an entirely proper and valid consideration. The latter risks crossing the line from treating the request as vexatious, to treating the requester is vexatious. That line, in our view, was crossed in the present case.”

Robin Hopkins

Section 11 and the Form of a Request

September 19th, 2011 by Christopher Knight

Although not a decision which is likely to make front-page news anywhere, the Tribunal’s recent decision in Innes v Information Commissioner (EA/2011/0095) does contain a couple of points of practical utility. The request was for information relating to 11+ results and the appellant objected that he had requested that the information be supplied to him in the form of a Microsoft Excel spreadsheet file (other software is available). The public authority declined to do so on the basis that it was not obliged under s.11 FOIA to provide information in a particular format, and that in any event, the clarification that Excel was wanted was made after the request and so did not fall within s.11 on that basis either.

The Tribunal dismissed the appeal. It upheld the Commissioner’s practice of distinguishing between a “form” (as specified in s.11) and a ‘format’ (not specified). Requesting information be supplied electronically is a form, but requesting it in an Excel spreadsheet is a format, and a step too far. The Tribunal considered that this was the clear effect of the language of s.11(1) and that reference to Hansard was unnecessary. The Tribunal accepted that the Inner House of the Court of Session had come to a persuasively similar view in respect of the equivalent Scottish provisions: Glasgow City Council v Scottish Information Commissioner [2009] CSIH 73. The distinction is between permanent (i.e. paper) and another (i.e. electronic) form and not more specific than that.

The Tribunal confirmed that any preference must be expressed at the time of request, as clearly set out in the wording of s.11. The reasonable practicability test does not apply to this.

The Tribunal also reiterated its position that the requirements of s.16 FOIA and the accompanying Code of Practice do not extend to the public authority explaining the information it has provided to the requestor.

As noted at the outset, the case hardly sets the world alight, but it does provide a welcome clarification on what is covered by a preference for “form” in s.11(1) which is likely to be practically useful to public authorities faced with demands to supply information in a particular electronic format. The Commissioner’s public position on the point remains the clearest guidance. There is, of course, nothing to stop an authority complying with that request if it wishes to do so, but FOIA does not impose any obligation.

INTERNAL FIXTURES ARE NOT ‘LANDSCAPE’

September 19th, 2011 by Rachel Kamm

The Tribunal, in Black v Information Commissioner (EA/2011/0064), has considered the definition of environmental information in the Environmental Information Regulations 2004 (“the EIRs”). The heart of the definition is “information on the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape, and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements”. 

It is of course important that public bodies spot when requested information falls within this definition, because any such request must be considered under the EIRs instead of the Freedom of Information 2000 (“FOIA”). It is fairly common for the requester and the public body to assume that a request has been made under FOIA, but to realise subsequently that the information should have been considered under the EIRs. The definition of environmental information is broad and sometimes surprises people by capturing information which does not appear to be environmental. For example, Robin Hopkins recently discussed on this blog how the “landscape” element of the definition has been interpreted broadly so as to include a monument. The Tribunal’s decision in Black is relatively unusual in that the appellant argued that all of the requested information fell within the EIRs, but the Tribunal rejected this submission. 

The appellant sought information on internal fixtures, such as fireplaces and chimney pieces, in English Heritage properties.  He relied on the Advocate General’s opinion in the case of Stichting Natuur en Milieu (Case C-266/09) to argue that buildings and structures were part of the landscape, which was not limited to the natural environmental. The appellant also argued that the EIRs had failed to properly implement the Directive. The Tribunal found that the opinion in Stichting Natuur en Milieu did not support the appellant’s submission and concluded that “On a plain reading of both the Directive and the EIR (which are identical in any event) the Tribunal finds that information relating to the internal fixtures of a building does not constitute “environmental information” within the definition, whether as landscape or otherwise”.   

Rachel Kamm

IS FOIA ALWAYS MOTIVE BLIND? TRIBUNAL DECISION ON SEX OFFENDERS’ SENSITIVE PERSONAL DATA

September 16th, 2011 by Robin Hopkins

In Colleen Smith v IC and Devon & Cornwall Constabulary (EA/2011/0006), the requester asked for information on the number of school teachers in specified towns who had been investigated, cautioned and charged under the Sexual Offences Act 2003 between January 2005 and November 2007. The Constabulary eventually relied on the personal data at section 40(2) FOIA.

The Commissioner found that, where the answer was “zero”, this was not personal data and should be disclosed; otherwise, the information could be withheld under section 40. The Tribunal has upheld this decision, albeit for different reasons.

This decision is worth noting on a number of grounds.

First, this is a good illustration of the approach from Department of Health v IC [2011] EWHC 1430 (Admin) (the “abortion statistics” case – see my post here) to the definition of “personal data” in the context of apparently anonymous statistics. Here the Tribunal considered both the disputed information concerning numbers of alleged sex offenders and the “other information” held by the Constabulary, and was satisfied that living individuals could thereby be identified. Furthermore, for obvious reasons, this constituted “sensitive personal data”.

Secondly, the Tribunal turned to fairness of disclosure. As regards reasonable expectations of data subjects, it concluded (for confidential reasons, and notwithstanding that one can generally assume sensitive personal data will not be disclosed) that the data subjects in these circumstances could have had no reasonable expectation that these statistics would not be disclosed at the relevant time, i.e. late 2007.

Thirdly, the Tribunal also disagreed with the Commissioner that disclosure created a risk of harm to the suspected offenders at the relevant time.

Fourthly, the Tribunal considered whether a condition from Schedule 3 of the DPA 1998 would be met. It did so by asking itself whether paragraph 3 of the Schedule of the Data Protection (Processing of Sensitive Personal Data) Order 2000 applied. That concerns, inter alia, disclosure of information concerning alleged unlawful acts for “special purposes” such as journalism. Disclosure must, however, be “in the substantial public interest”.

The “special purpose” of journalism highlights the following important reminder. It is by now axiomatic that FOIA is “motive blind”. However, the cases of Ferguson v IC (EA/2010/0085) (on which, see my post here) and Brett v IC (EA/2008/0098) imposed an important gloss on that principle. The Tribunal in Ferguson summed up the point thus:

“It is often stated that requester’s rights under FOIA are purpose-blind, in the sense that an applicant’s personal identity and motives for requesting information are irrelevant. This generalisation can mislead. There are some cases in which the applicant’s identity and motives may shed light on the public interests involved. More significantly, the applicant’s identify and motives can be of direct relevance to the exemption in FOIA s40(2) because of the provisions of DPA disclosure and to the interests pursued by the persons to whom the disclosure would be made. For example, a journalist or author may be able to outflank the s40(2) exemption by reliance upon DPA Schedule 3 condition 10 and paragraph 3 of the Schedule to the Data Protection (Processing of Sensitive Personal Data) Order 2000, where it is in the substantial public interest that wrongdoing should be publicised.”

The Tribunal in Smith agreed. The appeal, however, failed because disclosure of this information would not be “in the substantial public interest”.

The Tribunal thought it “reasonable to assume… that the public had an ongoing need for reassurance as to the level of activity by sexual offenders in particular localities and transparency and accountability in what the police were doing about it”. The threshold of “substantial public interest”, however, required a certain level of urgency in the need to reassure the public. That threshold was not met here.

In reaching this conclusion (which the Tribunal described as “finely balanced”), the Tribunal took into account: the evidence as to the machinery for the monitoring and supervision of sex offenders in the community; the risk of vigilantism, which can force suspects to “disappear”, which in turn increases the risk of reoffending. It added that:

“It was not enough, in the Tribunal’s view, that sexual offences by teachers or others in positions of trust was a matter of keen interest to the public. This, on its own, did not make disclosure “in the substantial public interest”. It was the Tribunal’s task to weigh against the wholly understandable concern felt by members of the public on this subject, the detrimental effects that disclosure could have.”

The upshot was that, although disclosure would be fair, section 40(2) took effect because no Schedule 3 condition would be met.

Robin Hopkins

KEY POINTS FROM THE CAMDEN ‘SQUATTER’S ROAD MAP’ JUDGMENT

September 8th, 2011 by Robin Hopkins

In Voyias v IC and LB Camden (EA/2011/0007), Camden Council has been ordered to disclose to a former member of the Advisory Service for Squatters lists of empty properties meeting certain descriptions. The decision has been controversial: see for example Housing Minister Grant Shapps’ condemnation of the judgment as a ‘squatter’s road map’. I set out below some of the key points from the decision.

Scope of the request

Two types of information were plainly within scope, namely lists of the Council’s own records of empty Council-managed properties, and properties owned by non-individuals which had been confirmed as empty by the Council.

There were two additional categories of information at issue. Here the Tribunal drew the following distinction, based on the wording of the request. On the one hand, the requester had asked about properties which were “listed” as being of a certain description: this information (found on the Council tax register) was in scope, and it did not matter whether or not the facts recorded in that register were accurate.

On the other hand, the requester had also asked for information about “empty” properties: this was not in scope. It was to be construed as meaning “actually empty” at the date of the request, and here the relevant records were not accurate.

Approach to the evidence

The Appellant argued that the IC’s reliance on material he had not seen was a breach of Article 6 ECHR. The Tribunal disregarded this argument, as an appeal before a Tribunal is a complete rehearing of the matter.

The next question concerning the evidence was this: how relevant were other decisions dealing with similar issues, but in the context of different local authorities?

The Tribunal was willing to take into account evidence from other Tribunal decisions dealing with general issues relating to squatting (LB Bexley v England and IC (EA/2006/0060 & 66)). The evidence was set out in that decision, and was thus available to the Appellant. Further, “it would be a waste of time and money to have to rehear such evidence in each similar case”. In contrast, the Tribunal declined to have regard to the evidence relied on in another, similar decision notice issued by the IC (concerning LB Tower Hamlets), as much of that evidence was case-specific and was not cited in detail in that publicly-available decision.

Camden’s own past disclosures of such information were not of assistance to the Tribunal, as circumstances change over time. Nor were other such disclosures by other local authorities of assistance.

Engagement of section 31(1)(a) FOIA

The IC found that s. 31(1)(a) FOIA (prevention of crime) was engaged. The Tribunal agreed, but based on different conclusions as to the evidence.

The Tribunal was satisfied that the relevant prejudice was made out as regards organised squatting. The Tribunal was satisfied that disclosure was likely to cause an increase in the number of properties squatted (even if the number of squatters remained the same) as the list of properties would add to the list of available premises known to a motivated and organized squatter. It was also satisfied that a significant proportion of entries into empty premises involve some criminal damage; it therefore concluded that organised squatting is linked to certain types of criminal activity.

The Tribunal was not satisfied, however, that disclosure of the list of properties would influence the behaviour of disorganised or opportunistic squatters, or those engaged in more systematic criminal behaviour involving drug use.

The public interest test

The IC found the public interest to favour the maintenance of the exemption. The Tribunal disagreed. Certain public interest factors were not relevant, and while there were strong factors on both sides, the balance favoured disclosure.

The Tribunal did not consider that any perceived social disadvantage of living next door to squatters, or the costs of the eviction of squatters were matters that the Tribunal was entitled to take into consideration, since squatting is not illegal. It did, however, take into account feelings of security, and the additional cost to the public purse (preventing crime, repairing criminal damage and so on) as inherently strong factors.

The Tribunal’s assessment of the weight to be given to the likely increase in crime is of interest. First, it found that disclosure would not lead to the majority of the crime associated with empty properties (crack-dens and so on). Further, in considering the other sorts of crime that would arise (criminal damage, for example), “the Tribunal takes into consideration the nature of the crimes that it considers would follow disclosure and finds that they are at the lower end of victim impact and that in some cases the presence of organized squatters itself will prevent the use of the premises for more socially disruptive crime (eg use as a crack house).”

Crucially, it found there to be a very strong public interest in bringing empty properties into reuse:

“The Tribunal is satisfied that publication of this list would bring a proportion of the void properties back into use earlier than would otherwise be the case and that consequently this is a strong public interest factor in favour of disclosure… The Tribunal is satisfied that there is already a lively and informed debate in this area, but, recognises that specific examples provide colour and are important in increasing public understanding and local involvement. It puts the specific empty properties into the limelight, may be an added tool to incentivize owners to reuse their properties and would enable the general public to walk up to a ‘void’, and see for themselves what is going on, whether it is being worked on, or has been left in limbo”.

It was this factor which outweighed the increased risk of low-level criminality, and which tipped the scales in favour of disclosure.

Robin Hopkins