CLIMATEGATE IN THE TRIBUNAL: DELETED EMAILS ON BACKUP SERVERS ARE “HELD”

January 23rd, 2012 by Robin Hopkins

The “Climategate” controversy surrounding the University of East Anglia’s Climatic Research Unit has received extensive media coverage. The Unit’s computer servers were hacked into in late 2009 (around the time of the Copenhagen Summit). Following the posting of much of this material on the internet, it was alleged that, in some instances, the scientific data had been manipulated so as to produce conclusions in support of the existence of climate change, or to suppress conclusions pointing the other way. FOI requests were inevitable.

The issue has now surfaced at Tribunal level. Keiller v IC and University of East Anglia (EA/2011/0152) is an important decision, not only because of the underlying subject matter, but because it deals with the thorny question of whether or not deleted emails which still exist on back-up servers are “held” for FOIA purposes.

The case concerned a request for the covering email from one of the Unit’s researchers to a colleague in the US, attaching datasets. The requester contended that the covering email contained instructions as to the use of that data, and he wished to see those instructions. UEA responded that, as the covering email had been deleted, it no longer “held” the requested information. The Commissioner agreed – but the Tribunal did not.

It had “no doubt” that the deleted email had been backed up onto the server which had been seized by the police as part of the investigation into the hacking affair. It was “rather disconcerted” by UEA’s evidence on this issue: its witness was unable to answer several pertinent questions about UEA’s email servers, back-up systems and deletion/retention policy. It also found that this email probably would have contained instructions or stipulations on the use of the data.

Following Harper v IC (EA/2005/0001), the Tribunal dismissed the argument that even if the email was on the back-up server, UEA did not “hold” that email for FOIA purposes: in one sense, deletion suggested an intention no longer to hold an email – but the whole purpose of a back-up system is to ensure emails are still recoverable after deletion. In the Tribunal’s view, “it was a matter of common-sense that information backed-up onto a backup server in the control of UEA, but deleted from the computer on which the original email was composed, was still ‘held’ by UEA”. It “considered the counter-arguments to be over-technical”.

UEA must now establish whether the email exists on the back-up server being held by the Police, obtain a copy and either disclose it or state its case for withholding the email. This may not be the last time a Tribunal considers “Climategate”.

On a related note, the Tribunal will consider an appeal on Friday 27th January in which the disputed information is the name of the principal donor behind the Global Warming Policy Forum, a think tank fronted by Lord Lawson, which is sceptical about prevailing theories on climate change – see the Guardian‘s story here.

Robin Hopkins

“IMPERMISSIBLE” DONATIONS TO THE LIBERAL DEMOCRATS: LIST OF CASES COMES WITHIN S. 42 OF FOIA

January 23rd, 2012 by Robin Hopkins

In Jackson v IC and the Electoral Commission (EA/2011/0136), the appellant had requested information in connection with an investigation made into donations made to the Liberal Democrat Party by the company 5th Avenue Partners. The company’s sole director was Michael Brown, who had been convicted of theft, money laundering and perverting the course of justice. It was alleged that the company was therefore an impermissible donor under the law governing donations to political parties. The Electoral Commission did not uphold that allegation: it issued a short press statement explaining that there was no legal justification for piercing the corporate veil in connection with the company’s donation.

The requester asked for the list of legal authorities upon which that opinion was based.

The request was refused on the grounds of s. 42 of FOIA (legal professional privilege). The Commissioner upheld the refusal, and so has the Tribunal: it has confirmed that a simple list of cases can attract LPP, and it found that – in view of the limited assistance this list would offer the requester – the public interest favoured maintaining the exemption.

Robin Hopkins

COURT GRANTS INJUNCTION RESTRAINING DISTRIBUTION OF PRIVATE INFORMATION AGAINST UNKNOWN BITTORRENT SEEDERS

January 16th, 2012 by Julian Wilson

I have previously blogged here on why the use of the BitTorrent peer to peer file sharing protocol to distribute large amounts of information over the internet has proved problematic for the law, see Privacy of internet users, internet file-sharing and copyright: the present “Wild West” and the Digital Economy Act 2010

On 12 January 2012, the Technology & Construction Court demonstrated a readiness to tackle BitTorrent seeders in appropriate cases. In AMP-v- Persons Unknown [2011] EWHC 3454 (TCC) the Claimant’s explicit private digital photographic images had been stored on her mobile phone which was stolen while she was at University. Following the theft, the images of her were uploaded to a free online media hosting service for the sharing of images. They were then also uploaded to a Swedish site hosting BitTorrent files.

Ramsey J granted the Claimant an interim injunction to prevent the distribution of the images both by conventional downloading and by downloading by the use of the BitTorrent Protocol.

Unsurprisingly, the court found that the publication of the images infringed the Claimant’s right to respect for her private and family life under Article 8 and that right outweighed the rights of freedom of expression of users of BitTorrent client software to download the digital photographic images using the BitTorrent protocol and to disseminate them by seeding them.

Ramsay J. found that the users of the BitTorrent client software who were downloading and uploading the digital images had no rights in that information and that information was of a personal, private and confidential nature which the Courts should protect.

The court also found that the Claimant had a good arguable case that the conduct of disseminating the digital photographic images amounted to harassment of the Claimant under the Protection from Harassment Act 1997.

Interestingly, the Respondents who were named in the application as “Persons Unknown” were neither present nor represented and the Claimant had not taken all practical steps to notify them. However, the Judge considered there were compelling reasons why they should not be notified. If each Defendant had to be notified before the Injunction were granted it would effectively deprive the Claimant of the opportunity to obtain the immediate interim relief which would otherwise be appropriate to protect her Article 8 rights.

The court accepted expert evidence to the effect that seeders of the BitTorrent files could be identified by way of their Internet Protocol Addresses whilst they were seeding and that it would therefore be possible to obtain the IP Address of every seeder and identify from that address their physical location, name and address from their Internet Service Provider. They could therefore be served with an order requiring them to take steps to stop their account from being used.

UPDATE ON RECENT TRIBUNAL DECISIONS

January 11th, 2012 by Rachel Kamm

The First Tier Tribunal (Information Rights) has had a busy start to 2012, with 7 decisions on its website already.

The first judgment out was Herbert v ICO and West Dorset District Council, EA/2011/0157. The appellant sought correspondence concerning the transfer to the Council of property previously owned by Lyme Regis Borough Council. The Council refused the request on ground that it was vexatious. The history of this case related to incidents and disputes regarding a different matter, between the appellant and the Council dating back to 1992, which culminated in 1996 when the Council revoked a license held by the appellant. The ICO agreed that the request was vexatious. The appellant submitted that he had a genuine interest in the history of Lyme Regis and that he believed that some historical documents were missing from the National Archives and that they had been retained by the Council because they related to illegally acquired property. The Council had previously allowed him to research their archives on another matter and he wished to be able to do so again to look for these missing documents. He said that he had expected the ICO to contact him so that he could put forward further arguments. The FTT agreed with the ICO and the Council that the request had been made under FOIA (and not the EIRs). The FTT set out the key principles that have been applied by Tribunals in considering whether requests were vexatious under s14 FOIA. The FTT considered the background and found that the appellant’s request was obsessive. Further, the request had the effect of harassing the Council (even though the language was not hostile), as allegations of illegality and impropriety were made at the same time as the requests and there was a context of a high volume of correspondence. The Council had made extraordinary efforts to accommodate the appellant’s requests over a considerable period of time and valuable resources of time and effort have been used which could otherwise have been used more productively. In the view of the FTT, to accommodate this request would constitute a further and significant burden on the Council. The FTT concluded that the request was vexatious.

The next decision to be promulgated was King v ICO, EA/2010/0126. The appellant sought from the ICO records of complaints where Crawley Borough Council had failed to comply with FOIA/EIRs and the ICO never served a ‘decision notice’. The ICO refused the request on ground that the information  consisted of ‘third party information’ that was exempt from the requirements of disclosure. It did not identify the exemption relied on for refusing to disclose the information. However, it did provide the appellant with a summary of the information requested. Further information was provided by the ICO in response to the appellant’s request for a review of the decision. The appellant then asked for the information with just the personal details of individuals removed. The ICO refused, citing s.44 FOIA, as exempting information that is prohibited from disclosure under another Act, namely s.59 DPA (which prevents disclosure of information collected in the course of an investigation where there is no lawful authority to do so). The appellant requested  review of this decision. In subsequent correspondence, the ICO  relied on s.40 FOIA (the data protection exemption). The appellant then asked the ICO to make a decision under s.50 FOIA as to whether it had complied with the Act. Having previously been acting in its capacity as a body which was itself subject to FOIA, the ICO then changed back to its normal hat. The ICO said that it was reversing its decision and it provided the appellant with the  letters which had been sent to the Council in the cases alleging non-compliance with FOIA, with personal data redacted. The appellant disputed that this resolved his request; he also wanted the documents from the individuals making complaints and from the Council. The ICO denied that these had been within the scope of his original request. The ICO subsequently issued a decision notice stating that it had provided the appellant with the information requested, but that it had breached FOIA (including by not holding an internal review at the right stage, by not providing the information at the outcome of the internal review and by not acting within the time-scales in the Act). The appellant appealed, arguing that the ICO had not provided all information which fell within the scope of his request, had misinterpreted his request and had breached the duty to provide advice and assistance. In relation to the scope of the request, the FTT criticised the ICO for not having properly analysed the request but found that in fact it had provided all information that fell within the scope of the request. The appeal therefore failed. The FTT also found that the ICO was not in breach of the duty to provide advice and assistance; the appellant argued that the ICO should have asked him to clarify his request, but the FTT found that this was not necessary because the request was in any event clear and adequately specified the information sought. This case very much turned on its facts, but it is interesting to see the application of FOIA to the ICO as a public authority and it is also a useful reminder to carefully read the request from the outset.

The third decision out in 2012 was Newcastle Upon Tyne Hospital NHS Foundation Trust v ICO, EA/2011/0236. This appeal was struck out because the judge considered that there was no reasonable prospect of it succeeding. The disputed information was statistics about the number of people dismissed over a three year period. The Trust refused to provide the information, on ground that it was reasonably accessible (s.21 FOIA) by way of an application in the employment tribunal litigation. The Trust subsequently provided the information voluntarily. The ICO found that the Trust had misapplied s.21 FOIA. The Trust appealed, arguing that “The point at issue is one of prioritising the correct forum by which information is provided. The Trust point is that once proceedings are issued, the correct forum lies within the proceedings that have been issued, in this case the Employment Tribunal“. Not surprisingly, the judge found that this argument had no reasonable prospect of success. FOIA rights are not put on hold if there is litigation between the parties. Further, information obtained under FOIA can be used for any purpose whereas information obtained in litigation can only be used for that purpose and so litigation disclosure is not an answer.

Cross v ICO, EA/2011/025 is also a strike out decision. The appellant sought from Havant Borough Council a building control decision notice, plans and inspection records relating to a loft conversion to his home carried out in 1987. The Council refused the request under the EIRs, on ground that it was not held at the time of receipt of the request. The appellant believed that he had seen these documents on a visit to the Council and that, whilst it was possible that they had subsequently disappeared, his appeal should not be struck out. However, the Council had conducted a six day trawl for the information and the judge found that it was obviously willing to provide the information if it could be found. The appeal was therefore struck out as having no reasonable prospect of success.

Finally, in Martyres v ICO and NHS Cambridgeshire, EA/2011/020, the FTT dismissed an appeal by an appellant who sought all information held by NHS Cambridgeshire (and its relevant community services provider), in respect of her deceased mother who had died on 29 August 2009 including information about the care received by her mother at a care home she was staying at prior to her death. The appellant argued that she was the next of kin, proposed executor and trustee of one of the Wills and had a valid claim against her mother’s estate under the intestacy  rules. In relation to s.41 (FOIA), the FTT found that the information was obtained from another person (social care professionals), it possessed the necessary quality of confidence and disclosure would constitute such an actionable breach of confidence. The FTT further concluded that s.21 FOIA did not apply, in that the appellant would not have been able to obtain the disputed information under the Access to Health Record Act 1980 (as the appellant claimed); whilst she was the nearest relative, she was not the personal representative. The FTT also dismissed the appellant’s arguments under the Human Rights Act 1998.

Rachel Kamm

LATE RELIANCE ON EIR EXEMPTIONS AS OF RIGHT

January 2nd, 2012 by Rachel Kamm

Readers will recall that the Upper Tribunal decided in early 2011 that public authorities are entitled as of right to rely on any exception / exemption under either the Freedom of Information Act 2000 or the Environmental Information Regulations 2004 at any stage of the proceedings.

In that case, the Upper Tribunal considered two appeals together. The first was an appeal brought by DEFRA, challenging the Tribunal’s decision that it could not now seek to rely on additional exemptions under the EIRs and that it was limited to the exemption that it had relied on at the time of its refusal to disclose environmental information to Mr Birkett (the founder of the cross-party Campaign for Clean Air in London). The second was an appeal brought by the Information Commissioner, challenging the Tribunal’s decision that the Home Office was entitled as of right to rely on new exemptions under FOIA.  At the hearing of the appeals before the Upper Tribunal, DEFRA submitted that it was entitled as of right to rely on the new exceptions/exemptions, Mr Birkett said that a public authority could not lawfully rely on new exceptions/exemptions before the Commissioner and the Tribunal, and the Commissioner adopted a middle course (namely that while there was no right to rely on new exceptions/exemptions, a public authority could be permitted to do so at the discretion of either the Commissioner or the Tribunal). The Upper Tribunal agreed with the public authorities that they could rely on a new exception/exemption at any time under either FOIA or the EIRs.

Mr Birkett appealed against this decision about the EIRs to the Court of Appeal: Birkett v The Department for the Environment, Food and Rural Affairs [2011] EWCA Civ 1606.

Lord Justice Sullivan (with whose judgment Lord Justices Lloyd and Carnworth agreed) started by considering the Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters. The Council Directive 2003/4/EC on public access to environmental information implements the Aarhus Convention and is itself implemented in domestic law by the EIRs. Mr Birkett argued that it was necessary to interpret the Directive (and in turn the EIRs) as preventing a public authority from relying on a new or different exemption after the internal review stage; otherwise the complainant would not have an effective remedy because they would not know the reasons for the public authority’s refusal of their request for information.

Lord Justice Sullivan rejected Mr Birkett’s argument. He took into account that the Directive does not proceed upon “the unlikely premise” that within the prescribed “tight timescale the public authority will always “get it right the first time”, hence the review process provided for by Article 6. While some decisions may be relatively straightforward, the question whether some information, and if so how much of that information, falls within one or more of the exceptions may well be a question of some complexity. Are documents protected by legal advice or litigation privilege, are there intellectual property rights in certain information, etc.? The exceptions are concerned with important public interests.” (paragraph 21). He held that “The Court or other legal body conducting the review under Article 6(2) is not reviewing the decision made by the administrative reviewer under Article 6(1), it is reviewing “the acts or omissions of the public body concerned.” Thus, the court must consider de novo the propriety of releasing the information. Such a process is bound to discover errors and omissions in the exceptions relied upon in initial decisions, and it would be surprising, given the balancing exercise required by the Directive, if those errors were incapable of subsequent correction.” (paragraph 23).

Lord Justice Sullivan went on to give a hypothetical example of a public authority which mistakenly fails to rely in its refusal notification upon an adverse effect upon public security or national defence. Mr Birkett considered that this would happen rarely and that the solution was for the Commissioner / Tribunal to refuse to allow the public authority to rely on that exception / exemption late but to exercise its discretion to refuse to order disclosure of the information where that was necessary to avoid a breach of human rights (paragraphs 24 and 25).

Lord Justice Sullivan rejected Mr Birkett’s proposed solution. The public interests protected by the exemptions in the EIRs were not just human rights. Further, the Commissioner and the Tribunal were able to exercise effective judicial control, for example by requiring an appellant to set out his grounds at an early stage in the grounds of appeal. “Any application by the public authority to rely upon a new exception made after the time limit for its grounds of appeal/response would be subject to the Tribunal’s case management powers under rule 5; see also rules 22(4) and 23(5) which deal with the submission of notices of appeal and responses out of time.” (paragraph 28). He concluded that the public authority was entitled to rely as of right on new EIR exemptions in the notice of appeal to the Tribunal.

Note that there was no appeal from the Upper Tribunal’s decision in the Home Office case about FOIA, which remains good law. It is also noteworthy that the Commissioner chose not to participate in the appeal, which meant that the Court of Appeal did not hear submissions on the middle course which it had proposed to the Upper Tribunal in the Home Office case. Lord Justice Carnworth commented that “There would have been attractions in an alternative approach, which could have reconciled the need for urgency, implicit in the CJEU case-law, with the need for flexibility in the operation of the scheme” (paragraph 31).

As a result of this decision, the general rule is that public authorities can rely on any exception / exemption at any time under the EIRs or FOIA. However, note that there is still a different approach where the public authority seeks to rely on the cost exception in FOIA after its initial decision; see our post on this topic here.

Rachel Kamm