NEW NATIONAL SECURITY JUDGMENT – SUMMERS v IC & COMMISSIONER OF THE POLICE FOR THE METROPOLIS

February 27th, 2012 by Anya Proops

In Summers, the First-Tier Tribunal has revisited the application of the national security exemption which was previously examined in the case of Kalman v IC (application of s. 24 to airport security arrangements – see my earlier post on the Kalman case). The principal issue in Summers was whether the IC had erred in concluding that information comprising the total amount spent by the Metropolitan Police’s Royal Protection Unit in a particular year was exempt from disclosure under s. 24 FOIA. In a robust judgment, the Tribunal held that the Commissioner had been right to conclude both that s. 24 was engaged in respect of the information and that the public interest balance weighed in favour of maintaining the exemption. Notably, the Tribunal rejected the Appellant’s case that the Royal Family was not integral to our domestic constitutional arrangements and, hence, could not give rise to national security considerations. In reaching this conclusion, the Tribunal adopted the broad approach to construing the concept of national security approved in Kalman. The Tribunal also found that, whilst taken in isolation the information may not be significant, when placed within a larger mosaic of information already available within the public domain, the information could be of use to terrorists and other criminals wishing to target members of the Royal Family (see further the discussion of the ‘mosaic effect’ at paras. 73 et seq). The Tribunal went on to conclude that, in all the circumstances, the public interest balance weighed firmly in favour of the s. 24 exemption being maintained. The Tribunal also considered the application of the exemptions provided for in ss. 31 (prevention of crime) and 38 (health and safety). It found that the information was also exempt under these sections.

Finally, the Tribunal was asked to consider whether the public interest considerations applicable to all three exemptions should be aggregated together, as per Ofcom v IC (Case C-71/10 (ECJ)). The Tribunal held that the issue was strictly academic as it had found that the information was exempt under each of the three individual exemptions in any event. However, it went on to comment obiter that, had aggregation been in issue, it would have ‘unhesitatingly’ held that the aggregated interests in maintaining the exemptions outweighed the public interests in disclosure (para. 96).

INFORMATION RELATING TO SECURITY BODIES

February 23rd, 2012 by Rachel Kamm

The Tribunal has considered the scope of the absolute exemption in section 23 FOIA, where information relates to one of a number of specified security bodies (Dowling v Information Commissioner and the Police Service for Northern Ireland, EA/2011/ 0118).

The requester, a journalist, asked the Police Service for Northern Ireland to provide him with a copy of a report known as Stevens III. The summary of this report by Mr John Stevens (as he then was) had been published in 2003 and recorded that he had found “collusion between the RUC and loyalist groups, whereby RUC agents were allowed to engage in terrorist attacks, indeed murder, evidence of such attacks was mishandled by investigators, important intelligence was suppressed and warnings of threatened attacks were provided to Catholic targets much less frequently than to Loyalist. Agents were allowed to operate beyond any control. Sir John concluded that his investigations had been subject to widespread obstruction both by RUC and army personnel, even involving arson. Lives, including the lives of Finucane and Lambert, could have been saved and serious crimes prosecuted to conviction but for such disgraceful misconduct” (judgment at [8]). The full report had not been published due to security concerns.

The Police Service for Northern Ireland refused the request, relying on a number of exemptions (including the absolute exemption in section 23). The issue for the Tribunal was the meaning of “relates to” in section 23. It found that the section 23 exemption ”has nothing to do with any direct damage to national security (see s.24). It expressly protects any direct or indirect security source of requested information but goes much further” (judgment at [18]). “Information describing a [specified security body] or its activities is clearly covered but “relates to” plainly extends beyond that” (judgment at [19]). It concluded that “any significant connection between such a body and such information is caught” (judgment at [20]).

Interestingly, the Tribunal commented that “As the appellant observes in his grounds and as has been said in Parliament, it is difficult to conceive of more serious charges made against organs of the state than those contained in the published Stevens III” (judgment at [8]) … ”Whilst the personality and motives of a requester under FOIA are immaterial, it is hard to imagine a subject in which the Irish public, hence Irish journalists, could have a greater legitimate interest than the full content of Stevens III, recording, as it does, the conduct of certain elements of the police and the security forces. That said, the public interest is not an issue here since the exemption under scrutiny is absolute” (judgment at [9]). Given these comments, it may be that this was a case where the Tribunal would have welcomed some discretion.

Rachel Kamm, 11KBW

IDENTITY OF DONOR TO THINKTANK NOT ACCESSIBLE UNDER FOIA OR EIR – MONTAGUE v INFORMATION COMMISSIONER

February 22nd, 2012 by Anya Proops

Thinktanks are now a well-entrenched feature of our political landscape. They potentially wield significant influence over policies and policy-makers. However, they are plainly not ‘public authorities’ for the purposes of the information access regime and, hence, are not susceptible to the application of FOIA or the EIR. That said, information relating to these organisations may in certain instances be held by public authorities which do fall within the purview of the access legislation. The question of whether that information is disclosable under FOIA or the EIR is one which was recently considered by the First-Tier Tribunal in Montague v IC (EA/2011/0177). In Montague, a request was made by a journalist for disclosure of the identity of an individual who had made a sizeable donation to Global Warming Policy Foundation (GWPF), a climate change sceptic thinktank chaired by Lord Lawson. The information in question was held by the Charity Commission (CC) as it had been provided to the CC by GWPF in the course of GWPF applying for charitable status. The requested information clearly amounted to the ‘personal data’ of the donor. The principal issue which arose in Montague was therefore whether the IC had correctly concluded that that data was exempt from disclosure under s. 40(2) FOIA. Mr Montague argued before the Tribunal that the IC had erred when he concluded that the information was exempt. This was not least because he had underestimated the GWPF’s influence over Government and policy-makers and, by extension, the public interest in accessing information which revealed who had funded GWPF.

The Tribunal rejected Mr Montague’s case. In a conclusion which will no doubt raise eyebrows in certain quarters, the Tribunal found that there was no evidence before it that GWPF exerted any actual influence over policy-makers. This was despite the fact that GWPF had itself claimed in its annual report that it exerted ‘significant influence’ over policy-makers. Importantly, the Tribunal also found that the donor in question was not an individual who had sought a career in the public eye. It went on to conclude that the charity was not ‘so influential as to make the disclosure of its financial affairs a matter of legitimate public interest outweighing the privacy rights of the data subject’ (para. 36). The Tribunal found that the result would have been the same had the EIR rather than FOIA been the applicable regime. However, it also commented obiter that the EIR did not apply to the information in any event as it did not amount to ‘environmental information’.

Data Protection for the 21st Century: The EU Reform Proposals

February 22nd, 2012 by Panopticon Blog

Timothy Pitt-Payne QC and Robin Hopkins spoke at the 11KBW Information law seminar; Data Protection for the 21st Century: The EU Reform Proposals on 21st February 2012. The papers from this seminar are now available to download – Robin Hopkins paper – click here ; Timothy Pitt-Payne QC paper click here

KENNEDY V IC AND CHARITY COMMISSION: COURT OF APPEAL DECIDES

February 21st, 2012 by Robin Hopkins

A quick update on today’s main FOI development: in May 2011, the Court of Appeal heard the case of Kennedy v IC [2011] EWCA Civ 367 (see the backstory here). It remitted the matter to the First-Tribunal to answer this question:

“Whether s.  32(2) of FOIA should in the circumstances be read down pursuant to s. 3 of the Human Rights Act 1998 and Article 10 of the ECHR, so that the exemption that it provides from disclosure of information ends upon the termination of the relevant statutory inquiry.”

In its “report” to the Court of Appeal in November 2011, the FTT answered yes to the above question (see here).

The matter returned to the Court of Appeal today. The Court decided that last week’s Supreme Court judgment in Sugar v BBC [2012] UKSC4 (analysed here) was determinative on the Article 10 point. It found for the Respondents, but gave leave to appeal to the Supreme Court. The Kennedy matter may therefore not yet have run its course.

No judgment from the Court of Appeal just yet – analysis to follow on Panopticon as soon as the judgment is available.

Robin Hopkins

DECLARATIONS OF INTEREST – NEW FTT DECISION UNDER S. 40(2) FOIA

February 21st, 2012 by Anya Proops

The question of whether and to what extent the personal data of public servants should be disclosed under FOIA is often a difficult one for public authorities to resolve. In the MPs’ expenses cases, the Commissioner and the Tribunal took a firm view that the legitimate interests of the public in accessing information relating to expenses outweighed any claims to privacy which the MPs might have. More recently, the Secretary of State has issued a code of recommended practice to local authorities inviting publication of salaries of senior officers (see further this earlier post on the code). But what level of data transparency is required if the personal data in question does not concern the expenditure of public monies but rather the way in which the private lives of public servants may intrude on their public duties? How does the s. 40 exemption play out in those circumstances? It was precisely these questions which the Tribunal was called upon to consider in the recent case of Greenwood & Bolton Metropolitan Borough Council v IC (EA/2011/0131).

In Greenwood, a request was made for disclosure of information revealing the declarations of interest which had been made by officials employed by Bolton MBC. The request was not limited either by reference to the nature of the interests in question or the seniority of the individual officers, although as it happened the relevant register of interests only recorded declarations from principal officers and above. The withheld information by its very nature comprised information about what individual officers got up to when they were not at work and, as such, was inherently private information. However, it was private information which plainly had a bearing on the discharge of the officers’ duties, hence its inclusion on the register of interests.

In a nuanced judgment, the Tribunal concluded that: the names, departments, sections and job titles of all officers who had made entries on the register should be disclosed and that, in addition, in relation to chief officers, information revealing other professional commitments (e.g. consultancies) should be disclosed but that the remainder of the information should be withheld. In reaching these conclusions, the Tribunal rejected arguments advanced by the Council that disclosure of any of the data would have a ‘chilling effect’ on the system of declarations. In its view, officers would still be inclined to make declarations, the disclosure notwithstanding, particularly because of the ‘auditor effect’, namely ‘disclosure would enable members of the public to scrutinize the information and challenge any inaccuracies or omissions’ which was ‘likely to add frankness in declaration’ (para. 30). However, it accepted that withholding the bulk of the requested information was justified. This was particularly in view of the facts that disclosure of some of the information would be likely to cause substantial distress and would be extremely intrusive into the lives of officers and, further, disclosure would interfere with the private lives of third parties involved in the interest in question (paras. 33-43). The decision effectively leaves the public in a situation where it knows that an officer has identified a potential conflict of interest but not why the conflict arose, unless that is the conflict relates specifically to the professional commitments of a chief officer.

ACCESSING ENVIRONMENTAL INFORMATION HELD BY LEGISLATIVE BODIES: NEW CJEU JUDGMENT

February 20th, 2012 by Anya Proops

It is a clear feature of access regime embodied in the EIR that the right of public access to environmental information does not apply to bodies to the extent that they are ‘acting in a … legislative capacity’ (r. 3(3)). This exclusion is permissible under both Article 2(2) of the Directive 2003/4/EC on Public Access to Environmental Information and Article 2(2) of the Aarhus Convention. The exclusion is no doubt derived from the constitutional principle that legislators are democratically elected and are directly accountable to the public (see further the Implementation Guide to the Aarhus Convention, p. 34). But what is the position if a legislative act does not in practice involve any kind of democratically driven legislative process? What if the legislation in question amounts to the mere rubber stamping of a decision by administrators? Will that act still fall within the scope of the exclusion, despite lacking any meaningful democratic credentials? Following a recent judgment of the CJEU, it would seem that the latter question must be answered in the negative. In Solvay & Ors v Région Wallone Case C-182/10 (judgment delivered on 16 February 2012), the Walloon Parliament had legislated to ratify the granting of certain planning consents in respect of a number of major developments. A question arose as to whether the Aarhus Convention applied to the ratifications. The CJEU were in no doubt that the legislation in question could not fall within the ambit of the exclusion provided for in Article 2(2) of the Convention. This was because that legislation ‘simply ratified’ a pre-existing administrative act. It was not derived from a substantive legislative process of the kind required by the Aarhus Convention (see paras. 29-43 of the judgment and note in particular in those paras. the consideration of Article 1(5) of Directive on the assessment of the effects of certain public and private projects on the environment, which provides for a specific right of access to information relevant to environmentally significant developments). It follows that administrative acts cannot be rendered immune from the full force of the environmental information access regime merely by being covered in a thin legislative veneer (see also the judgment in Boxus & Ors [2011] ECR 1-0000 where the Court reached a similar conclusion).

The judgment in Solvay is also interesting for what it says on the question of the effect of the Implementation Guide to the Aarhus Convention. In response to the question whether the Convention must be interpreted in accordance with the Guide, the Court concluded that the Guide, which was drawn up by international experts, was designed to be an ‘explanatory document’ which contained observations which were ‘capable of being taken into consideration if appropriate among other relevant material for the purpose of interpreting the Convention’ but which had ‘no binding force and do not have the normative effect of the provisions of the Aarhus Convention’ (para. 27).

LOCAL GOVERNMENT OMBUDSMAN AND EIR

February 17th, 2012 by jamesgoudie

Dalley v Information Commissioner, EA/2011/0180, FTT Decision on 15 February 2012, concerns EIR Regulation 12(5)(d), on breach of confidence, and a refusal by the Ombudsman of an information request.  The confidentiality was provided by Section 32(2) of the Local Government Act 1974 in relation to Ombudsman investigations and conducting them efficiently.  The question was whether the public interest in maintaining that confidentiality outweighed the public interest in awareness of investigations on environmental issues conducted by the Ombudsman.  The subject matter was drainage issues and the alleged failure of the Local Planning Authority to address them in a satisfactory manner.  The FTT concluded that the balance of public interest was against disclosure.  The FTT emphasized (para 11) that there is a public interest in enabling the Ombudsman to receive information in confidence, so as not to affect adversely his ability to investigate complaints and thus to maintain the accountability and transparency of local government.

PRIVACY AND THE RIGHTS OF MINORS: SPELMAN V EXPRESS NEWSPAPERS

February 16th, 2012 by Anya Proops

Yesterday the High Court handed down a judgment which highlights the potentially nuanced approach which the courts will take when considering the privacy rights of minors. In Spelman v Express Newspapers [2012] EWHC 239, the Court was asked to consider the question whether an interim injunction should be granted to the seventeen year old son of Caroline Spelman, Secretary of State for DEFRA. The injunction was designed to restrain the publication of private and indeed sensitive information relating to the Spelmans’ son by Express Newspapers (“EN”). Having found that the son would have a reasonable expectation of privacy in respect of the information in question, Lindblom J went on to consider how the son’s privacy rights under Article 8 should be balanced against EN’s right to freedom of expression under Article 10. He concluded that the balance tipped in favour of protecting the son’s right to privacy. In reaching this conclusion Lindblom J took into account in particular: that the claimant was a minor who ‘faced considerable press scrutiny in a tabloid newspaper’ [para. 17]; that publication of the story by EN would ‘not of itself advance the public interest claimed for it to a material degree’, as that public interest would ‘be protected and advanced in any event’ [para. 24] and, further, that publication of this story was ‘likely to have a very significant harmful effect on the claimant’ [para. 25].

However, notably the claimant’s status as a minor was not sufficient to incline Lindblom J to allow his application for anonymity in respect of the order itself. He held that the fact that subject matter of the application and the precise nature of the relief granted would not enter the public domain was sufficient to protect the claimant’s interests and that the fundamental importance of the principle of open justice meant that the claimant should be identified as the person who sought injunctive relief against EN. Lindblom J went on to comment that this seemed ‘properly to reflect the course which the court ought now normally to take in situations such as these’ [para. 35]. See further the relevant jurisprudence referred to in the judgment including: Cream Holdings Ltd v Banerjee [2005] 1 AC 253 (Supreme Court judgment on the test to be applied under the Human Rights Act when seeking injunctive relief restraining freedom of expression), Murray v Express Newspapers plc [2009] Ch 481, (Court of Appeal judgment on the privacy rights of JK Rowling’s son) and DFT v TFD [2010] EWHC 2335 (hearings in private to prevent unlawful publication of private information).

SUGAR v BBC: THE FINAL ROUND

February 16th, 2012 by Julian Milford

16 February 2012 by Julian Milford

The Supreme Court has given judgment yesterday (15 February 2012) in Sugar v BBC [2012] UKSC4. The Supreme Court’s judgment in Sugar represents the last stage in a 7-year battle waged by Mr Sugar (and, following his death, the representative of his estate) to compel the BBC to disclose the “Balen report” under FOIA. This was an internal report from 2004 about the quality and impartiality of the BBC’s coverage of Middle Eastern affairs, which dealt among other matters with complaints that the BBC was biased against Israel. Mr Sugar was a well-known solicitor and supporter of the State of Israel, who considered that the BBC’s coverage of the conflict between Israel and Palestine was seriously biased.

FOIA applies to the BBC only in respect of information “held for purposes other than those of journalism, art or literature”: see Part VI of Schedule 1 FOIA. On the assumed premise that the Balen report was held by the BBC partly for the purposes of journalism, and partly for purposes other than those of journalism, the question for the Supreme Court was whether information held by the BBC with a dual purpose was within the scope of the Act.

Answering that question required the Court not only to analyse the wording and purpose of the Act, but also to reason whether Mr Sugar’s rights under Article 10 ECHR required any different outcome. Lord Brown’s reasoning in particular is of general importance as regards the right of access to information under Article 10, and not relevant simply to the narrow question of statutory interpretation in Sugar.

The statutory interpretation point: information held for dual purposes

Parsing the phrase “information held for purposes other than those of journalism” allowed for a number of possible approaches. Approach (1) would be that only information held exclusively for journalistic purposes would be outside FOIA. Approach (2) would be that information held predominantly, but not exclusively, for journalistic purposes would also be outside FOIA (i.e. a “dominant purpose” test). Approach (3) would be that only information held exclusively for non-journalistic purposes would be within FOIA. So if information was held for purposes that included journalism (even as a subsidiary purpose), this would bring the BBC outside FOIA. Mr Sugar argued for approach (1). The BBC argued for approach (3), with approach (2) as a fall-back.

The SCJs held (Lord Wilson dissenting) that approach (3) was correct. That was above all because the intention behind the exclusion was to protect the freedom of public service broadcasters to gather, edit and publish news without the inhibition of disclosure obligations. Per Lord Walker (representing the views of the majority), Parliament decided that the BBC’s right to freedom of expression warranted a more general and unqualified protection for information held for journalistic purposes, than was available under the exemptions in Part II of FOIA. That purpose would be frustrated if the coexistence of non-journalistic purposes resulted in the loss of immunity. So if any part of the BBC’s purpose in holding material was its broadcasting output, it would not be disclosable.

Article 10 ECHR

The SCJs all broadly agreed that an analysis of Mr Sugar’s possible rights under Article 10 ECHR did not carry his case any further. Of particular interest, however, are the conclusions of Lord Brown (giving the only detailed reasoning on the point) on why that was so.

Mr Sugar asserted that the ECtHR had moved towards a general recognition of a right of access to information under Article 10 in three recent cases (Matky v Czech Republic, Tarsasag v Hungary, Kenedi v Hungary). Failing to disclose the report to him interfered with that right: and such interference was not necessary or proportionate.

Lord Brown did not attempt to define exactly what right of access Matky, Tarsasag and Kenedi laid down. However, his starting point was to note the well-established line of Strasbourg jurisprudence, encapsulated in the unanimous Grand Chamber decision in  Roche v UK (2005) 42 EHRR 599, in which the ECtHR has found that Article 10 does not impose on States any positive obligations to disseminate information of their own motion. Lord Brown pointed out that Tarsasag was a decision of the Second Section of the ECtHR; that it relied for its assertion that the ECtHR had moved towards a broader interpretation of the notion of freedom to receive information on Matky alone; and that Matky was a case in which the complainant sought information under a general right to information under the Czech legal system, and in which the ECtHR held that any interference with his rights flowing from the refusal to disclose information was justified. Matky, said Lord Brown, was an “unpromising foundation on which to build any significant departure from what may be called the Roche approach…”

Whatever the significance of the Tarsasag line of authority, Lord Brown was certain that it did not establish any interference with the freedom to receive information under Article 10(1), where a public authority, acting consistently with domestic legislation governing the nature and extent of obligations to disclose information, refused access to documents. In any event, said Lord Brown, it was open to a State to legislate a blanket exclusion for disclosure of information held for the purposes of journalism. Such an exclusion would be proportionate; so that even if there were any interference with Article 10(1), it was justified under Article 10(2).

Plainly, Lord Brown’s reasoning on the scope of Article 10(1) is highly significant for the relevance of Article 10 to disclosure of information covered by FOIA exemptions generally, as well as to the more narrow issue of the BBC’s FOIA obligations. It remains to be seen how that reasoning plays out.

Finally, in this context, I note a number of forthcoming cases in which related issues concerning the applicability of Article 10 in the FOIA context will be considered. Those are Evans v 7 Government Departments and IC (EA/2010/0014) (judgment of UT awaited – involving Jonathan Swift QC, Tim Pitt-Payne QC and Julian Milford of 11KBW); Kirkhope v IC and National Archives (EA/2011/0185) (part-heard in the FTT – involving Jonathan Swift QC, Amy Rogers, Robin Hopkins and Joe Barrett of 11KBW); Kennedy v Charity Commission (due to be heard in the Court of Appeal on 21/22 February 2012 – involving Karen Steyn, Ben Hooper and Rachel Kamm of 11KBW); APPGER v ICO and FCO (due to be heard in the FTT on 27/28 February 2012, involving Karen Steyn, Joanne Clement and Robin Hopkins of 11KBW); R(Guardian News) v City of Westminster Magistrates Court (heard in the Court of Appeal on 7 February 2012 – judgment reserved).