LANDFILL OPERATOR’S INFORMATION NEITHER CONFIDENTIAL NOR COMMERCIALLY SENSITIVE

April 29th, 2012 by Robin Hopkins

First-Tier Tribunal caselaw this past week has focused on the intersection between the common law of confidence and statutory rights of access to information. Moss v IC & Home Office (EA/2011/0081) (see Anya’s post here), the Tribunal analysed section 41(2) of FOIA (information provided in confidence). Shortly thereafter, the Tribunal handed down its decision in Rory Jones (on behalf of Swansea Friends of the Earth) v IC, The Environment Agency and SI Green Ltd (EA/2011/0156). This concerned the slightly different provision under regulation 12(5)(e) of the EIR. Regulation 12(5)(e) EIR provides that “a public authority may refuse to disclose information to the extent that its disclosure would adversely affect… the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest”.

When a landfill operator such as SI Green (UK) Ltd (“Green”) obtains a permit from the Environment Agency (EA”) to operate a waste landfill, financial provision is made for covering the costs of something going wrong. Most commonly, this is done by means of a bond. In the event that any of the events specified by the bond occur, the amount secured by the bond is paid directly to the EA which can then use the funds to put matters right.

In this case, the appellant requested information relating to financial guarantee arrangements put in place by Green pursuant to its EA permit for operating a waste landfill site at Cwmrhydycierw Quarry near Swansea. The EA provided a redacted version of two documents, a performance agreement and the associated bond. It relied on regulation 12(5)(e) EIR in redacting information concerned with the amount of the bonded sum Green is required to secure for each year of operation of the landfill and going forward through a period of 60 years after operations terminate. It contended that this was commercially sensitive confidential information.

The Tribunal agreed with the Appellant that regulation 12(5)(e) was not engaged, because the redacted information was not subject to confidentiality provided by law. First, it was not provided by legislation. The Pollution Prevention and Control (England and Wales) Regulations 2000 enable landfill operators to apply for any information they provide to the EA to be excluded from the public register on the grounds that it is commercially confidential. In this case, Green had made such an application for different information to that redacted here.

Secondly, the information was not subject to common law confidentiality either. As in the Moss case, the Tribunal stuck to the 3-limb test laid down in Coco v AN Clark. In this case, the respondents’ case came unstuck on the second limb, which requires that the information must have been imparted in circumstances importing an obligation of confidence. In this respect, the Tribunal applied regulation 12(5)(e) in a very similar way to s. 41(2) of FOIA. It held that “that element [the second Coco limb] implies the communication of the information by one party to the other. The evidence in the present case, however, is that the information came into existence through a process of negotiation between the parties”. It added that “we recognise that section 41 refers more explicitly to information being “obtained” by the public authority from any other person. That is not the language of regulation 12(5)(e). However, we consider that the same element is imported by the incorporation of the common law test of breach of confidence into regulation 12(5)(e) of the EIR.”

As the exception was not engaged, the public interest test was not necessary. Nevertheless, the Tribunal held that even if the exception had been engaged, the public interest favoured disclosure. The respondents’ cases were based largely on the assumption that the redacted information would reveal useful information about Green’s operating costs in relation to the landfill site in question. The Tribunal found that the evidence before it fell “far short” of supporting that assertion. On the other hand, the public interest in disclosure was made out: “the purpose of the bond is to provide the public with protection should things go seriously wrong. Disclosing the information would allow the public to understand the level of protection that is being provided to them and for them to feel confident that the provision is sufficient to deal with potential difficulties.”

Robin Hopkins

PROTECTING CONFIDENTIAL INFORMATION UNDER FOIA – NEW FTT DECISION

April 28th, 2012 by Anya Proops

The FTT has recently handed down a decision which considers in some detail the operation of s. 41(2) FOIA (exemption in respect of confidential information): Moss v IC & Home Office (EA/2011/0081). In Moss, a request was made for disclosure of a particular report prepared by IBM and provided to the Home Office. The report was compiled in circumstances where IBM was seeking to tender for provision to the Identity and Passport Service (IPS) of a biometric recognition system and was, as part of this process, considering which biometric software provider to partner with. The report sought to test the suitability of various biometric software providers and their products with a view to establishing which provider should be treated as the preferred provider in the context of the tender. IBM decided to provide the report to the IPS in order to build confidence in the solution that it was offering to the IPS as part of the tender process. The report was provided to the IPS in circumstances where there were various agreements in place which, whilst recognising the IPS’ obligations under FOIA, effectively obliged the IPS to treat the information it received from tenderers as confidential. Mr Moss submitted a request to the Home Office for disclosure of the report. The Home Office refused to disclose the report, relying on a number of exemptions including s. 41(2). The Commissioner concluded that the refusal was lawful on an application of s. 41(2). On appeal to the tribunal, Mr Moss sought to argue that the Commissioner had misapplied s. 41(2). In a lengthy judgment, a majority of the tribunal upheld the Commissioner’s decision. However, the minority held that the report ought to have been disclosed, subject to redactions to protect in particular the commercial interests of the software providers. The majority judgment is notable not least because of its emphatic approval of the test for breach of confidence adopted by Megarry J in Coco v Clark [1968] FSR 415. Other aspects of the majority judgment which are worthy of note include the majority’s conclusion that the public interest defence will not be available in respect of a potential claim for breach of confidence merely because the public has an interest in seeing the information in question (see in particular paras. 84 et seq).

Interestingly, both the majority and the minority touched on issues relating to the application of Article 10 in their respective judgments. The majority alluded to Article 10 in the context of highlighting the ways in which the Article 10 right to freedom of expression may bolster a prospective public interest defence against a claim for breach of confidence. (The existence of such a defence is relevant to the question whether, for the purposes of s. 41(2), disclosure of confidential information would give rise to an ‘actionable breach of confidence’). The minority, by way of contrast, alluded to the Article 10 right to receive information, which had recently been considered in the Sugar and Kennedy cases (in the Supreme Court and Court of Appeal respectively). The minority queried whether and to what extent the recent jurisprudence on the Article 10 right to receive information ought to be shaping the analysis of the public interest defence under s. 41(2). See further my earlier post on the Kennedy judgment here.

Anya Proops

SUBJECT ACCESS REQUESTS – MIXED MOTIVES AND PROPORTIONATE SEARCHES

April 25th, 2012 by Anya Proops

There are two questions which are frequently posed by data controllers in receipt of wide-ranging subject access requests. First, if the request is made in circumstances where the requester is pursuing litigation against the data controller, the data controller will often query whether the request can be refused on the ground that it is being pursued for improper collateral purposes. Second, if responding to the request comprehensively would be disproportionately resource intensive, the data controller will typically ask whether it is entitled to limit its search to one which is reasonable and proportionate in the circumstances. As the recent case of Elliot v Lloyds TSB Bank PLC & Anor (Case No: 0LS51908) illustrates, answering such questions is rarely straightforward.

The background to Elliott was that Mr Elliott was pursuing a grievance against Lloyds in connection with certain commercial matters. With a view to furthering his grievance, Mr Elliott submitted a request to Lloyds for pre-action disclosure. That request was refused on the ground that it did not comply with CPR 31.16. Thereafter, Mr Elliott submitted wide-ranging subject access requests to Lloyds. A considerable amount of information was disclosed by Lloyds in response to the requests. However, Mr Elliott was not satisfied with the material disclosed to him. He considered that further searches ought to be undertaken. Accordingly, he brought a claim against Lloyds in the County Court under s. 7(9) DPA (s. 7(9) affords the court a wide discretion to order a data controller to comply with a subject access request if it is satisfied that the data controller has not dealt with the request in accordance with the legislation). Lloyds sought to resist the claim on two grounds: first, the claim was an abuse of process as it was being pursued for the collateral purposes of furthering Mr Elliott’s interests in prospective commercial litigation against Lloyds; second, the claim should fail on the basis that the further searches for data which Mr Elliott was insisting should be conducted would be disproportionate in all the circumstances. Thus, both Mr Elliott’s motive and the issue of the proportionality of Lloyd’s searches were at stake in the litigation.

The Motive Issue

Mr Elliott’s case on the motive issue was that he was pursuing the claim for a legitimate purpose, namely that he wanted to find out whether Lloyds had been misusing his personal data (e.g. by improperly disclosing it to a third party). Lloyd’s position on the motive issue was as follows: either Mr Elliot was pursuing the claim purely in order to further his interests in the prospective commercial litigation or this was the dominant motivation for the claim; either way the s. 7(9) claim was being pursued for an improper collateral purpose and, as such, amounted to an abuse of process.

Following Durant v Financial Services Authority [2003] 1746, the judge (HHJ Behrens) readily accepted that, if the claim was being pursued purely for the collateral purpose of furthering Mr Elliott’s position in other prospective litigation, that would amount to an abuse of process which would justify the claim being struck out. However, he went on to query what the position would be if Mr Elliott in fact had mixed motives (i.e. he wanted the data in order to further the prospective commercial litigation but also wanted to discover whether his data had in fact been misused by Lloyds). Having considered the judgment of the High Court in Iesini v Westrip Holdings [2011] 1 BCLC 498, the judge took the view that, in a case involving mixed motives, the test which should be applied was a ‘but for’ test. Thus, if the claim would not have been brought but for the claimant’s collateral purpose in furthering his interests in the other litigation, the claim would have been brought for an improper purpose and would be liable to be struck out as an abuse of process. On the other hand, if the s. 7(9) claim would have been brought irrespective of the other prospective litigation, then it was not an abuse of process. Notably, the judge rejected an alternative test proposed by Lloyds, namely that the s. 7(9) claim would be an abuse of process if the ‘dominant purpose’ of the claim was an improper collateral purpose. The judge concluded that the dominant purpose test could not be reconciled with the approach approved by the court in Iesini.

With respect to Mr Elliott, the judge concluded that: he had mixed motives in bringing the s. 7(9) claim; however, he would still have brought the claim in the absence of the prospective commercial litigation and, as such, his claim under the DPA was not an abuse of process.

Proportionate Search

On the proportionate search issue, Mr Elliott argued that a data controller was not entitled to limit the scope of its search for personal data by reference to concepts such as reasonableness and proportionality. Insofar as the concept of proportionality was relevant at all under the DPA, it was relevant not to the search process per se but rather to the process of supplying the data to the applicant once it had been located (see further s. 8(2)(a) DPA which disapplies the general duty to provide the applicant with ‘a copy of the information in permanent form’ in circumstances where the supply of such a copy ‘is not possible or would involve disproportionate effort’). In support of these arguments, Mr Elliott relied on guidance published by the Information Commissioner.

Lloyds argued that this was not the correct approach and that, following Ezsias v Welsh Ministers [2007] All ER (D) 65, it was not obliged under the DPA to conduct a search requiring unreasonable or disproportionate effort. Lloyds further contended that, to the extent that the Commissioner’s guidance took a different view of the principles approved in Ezsias, the guidance was wrong and ought not to be followed. Lloyds argued that it would be disproportionate to conduct the further searches demanded by Mr Elliott. The judge accepted Lloyds’ case on the disproportionate effort issue. He agreed that the further searches sought by Mr Elliott were disproportionate and, hence, were not required under the DPA.

The court’s judgment on the proportionality issue is likely to offer considerable relief to data controllers, many of whom struggle under the burdens imposed by wide-ranging subject access requests. It remains to be seen whether the Commissioner will, in response to this judgment, seek to review his guidance. As for the judgment on the motive issue, it is worth noting that the court heard evidence directly from Mr Elliott on this issue and, further, that it found him to be ‘an honest witness’.

Finally, it is worth noting that, despite having won on the disproportionate search issue, Lloyds was still required to pay a substantial part of Mr Elliott’s costs. This was in no small part because Lloyds had disclosed a substantial amount of new data following the lodging of Mr Eliott’s claim. 11KBW’s James Cornwell acted for Lloyds.

Anya Proops

EXTRAORDINARY RENDITION

April 22nd, 2012 by Rachel Kamm

Robin Hopkins alerted readers recently to the FTT’s decision on a set of requests made by the All Party Parliamentary Group on Extraordinary Rendition (“APPGER”) to the Foreign & Commonwealth Office: APPGER v Information Commissioner and the Foreign and Commonwealth Office EA/2011/0049-0051.

The Tribunal describes  APPGER as concerned in this case to get to the truth of the UK’s involvement (if any) in extraordinary rendition, which is the extra-judicial transfer (usually across state boundaries or between authorities within them) of a detained person for the purpose of interrogation (often in circumstances where they face a real risk of torture). APPGER’s requests were considered together and related to various individuals and concerns:

  1. Mr Bisher al-Rawi and Mr Jamil el-Banna were detained under the Terrorism Act at Gatwick Airport in November 2002 but, having been held and questioned for a few days, were released and flew to the Gambia. There were some communications between the UK and US authorities about the men. They were arrested by the Gambian authorities on arrival in the Gambia, transferred into US custody, flown to Afghanistan and then detained in Guantanemo Bay from 2003 until 2007. Some of APPGER’s requests were an attempt to find out more about the UK’s involvement in the rendition of these men.
  2. Mr Binyam Mohammed was seized in Pakistan in 2002, rendered to Morocco, transported to Afghanistan and then transferred to Guantanemo Bay where he was held from 2004 until his charge in 2008. The US Government did not challenge his account of brutal treatment. Some of the APPGER requests relate to the FCO’s knowledge of the treatment of Mr Mohammed.
  3. On 4 February 2009, the Divisional Court concluded that it was not in the public interest to disclose information in  passages redacted from a judgment relating to Mr Mohammed because of the continuing threat by the US Government in a letter dated 21 August 2008 that disclosure was likely to result in serious damage to US national security and could harm existing intelligence-sharing arrangements between the US and UK Governments. The media published allegations that the letter had been solicited by the FCO from the US State Department. Some of APPGER’s requests were for information relevant to these allegations.

The FCO had provided some information in response to APPGER’s requests. In relation to other information, it confirmed that it held information falling within the scope of the requests but relied on exemptions in sections 23(1), 27(1)(a), 31(1)(a), 31(1)(b), 32(1), 35(1)(a), 35(1)(b), 40(2) and 42(1) FOIA. In relation to parts of the requests, the FCO claimed that the duty to confirm or deny whether it held the information did not apply by virtue of section 23(5) and 24(2) FOIA.

Turning to the exemptions:

Section 23 - absolute exemption for information directly or indirectly supplied by the security services or relating to the security services

The Tribunal considered the test for information falling within the scope of section 23(1). This provides for an absolute exemption for information which was directly or indirectly supplied to the public authority by a specified body (e.g. the security services) or if it relates to any of those specified bodies. Looking at the question of supply, the Tribunal found that it is a question of fact on the balance of probabilities whether information had been directly or indirectly supplied by the security services to the FCO and it was not a requirement that the security services had intended to supply the information to the FCO. As for information relating to the security services, the Tribunal found that it had to apply a broad but purposive approach and decide whether as a matter of fact on the balance of probabilities the content of the information was ‘something to do with’ the security services (subject to a remoteness test). The Tribunal found that the FCO was entitled to rely on section 23(1) in this case and it commented that the FCO could have claimed the exemption for even more information than it had done.

APPGER then submitted that this interpretation of section 23(1) resulted in a breach of the right to receive information in Article 10 ECHR. Regular readers of this blog will be familiar with the arguments that have been run in the domestic courts (see posts here, here and here). On the current authorities, there would be no breach of Article 10 ECHR even though section 23(1) FOIA is an absolute exemption. However, APPGER asked the Tribunal to stay its decision on this issue, given that issue will be considered by the Supreme Court again in the Kennedy v Charity Commission appeal. The Tribunal refused to stay the issue in this case; it found that it was bound by the Court of Appeal decision in Kennedy (applying the Supreme Court decision in Sugar) and that APPGER could preserve its position by appealing to the Upper Tribunal. It commented that in any event, the absolute exemption in section 23(1) FOIA was justified under Article 10(2).

The Tribunal commented on the Information Commissioner’s approach to this issue, given that he had not seen the disputed information whereas the Tribunal had spent two days establishing the facts. The Tribunal commented that it should not instruct the Commissioner how, in general, he should conduct his investigations but it noted that it had some reservations and it recommended that the Commissioner’s office should take note of how the Tribunal had had to establish the facts in this appeal.

Sections 23 and 24 – the duty to confirm or deny

The FCO had refused to confirm or deny whether it held some of the information requested. It followed its usual approach of relying on both section 23(5)  and also on section 24(2) FOIA. Section 23(5) is an absolute exemption which applies where complying with the duty to confirm or deny that information is held would involve the disclosure of information which was directly or indirectly supplied to the FCO (in this case) by the security services or information which relates to the security services. Section 24(2) is a qualified exemption where information did not fall within section 23(1) and where an exemption from the duty to confirm or deny was required for the purposes of safeguarding national security.

The FCO recognised that it could not rely on this exemption if it had already been officially confirmed in the public domain that the security services were involved in relation to a particular request. APPGER challenged the FCO’s reliance on section 23(5) FOIA in this case. The Tribunal considered what information had been officially confirmed in the public domain and found that the public information relied on was generally broader or different to the scope of the request or said nothing about what had been held by FCO as at the date of the request.

APPGER also challenged the FCO’s dual reliance on section 23(5) and section 24(2). APPGER argued that the FCO had to decide which of these applied, given that section 24(2) only applied if the information in question was not exempt by virtue of section 23(1). The Tribunal rejected this argument and found that the FCO was entitled to refer to both sections when refusing to confirm or deny whether it held information. The provisions were not mutually exclusive.

Section 27 – engagement of the qualified exemption for international relations

The FCO relied on the exemption in section 27(1) for information if its disclosure would or would be likely to prejudice relations between the UK and any other State. The Tribunal adopted the approach in Hogan and Oxford City Council v Information Commissioner [2011] 1 Info LR 588, EA/2005/0026, EA/2005/0030Gilby v Information Commissioner and FCO EA/2007/0071 and APPGER v IC and MoD [2011] UKUT 153 (AAC). The exemption will be engaged if there is a real and significant risk (even if it is less than a probability) that disclose would prejudice relations with another State, in the sense of impairing relations or their promotion or protection. Appropriate weight needs to be attached to evidence from the executive about the prejudice likely to be caused. The Foreign Secretary has unrestricted access to full and open advice from his experienced advisors and is accordingly better informed and has far more relevant experience than any judge for this purpose. In this case, the Tribunal had heard evidence from a member of the Diplomatic Service who was a Senior Civil Servant and there was no evidence to seriously contradict his view about the prejudice which would (in some cases) or would be likely to (in other case) prejudice international relations (notwithstanding the clear and strong public interest in issues around extraordinary rendition).

Section 35 – engagement of the qualified exemption for the formulation and development of Government policy etc.

The Tribunal then considered the qualified exemption where information held by a Government department relates to the formulation or development of Government policy, Ministerial communications, the provision of advice by Law Officers or the operation of any Ministerial private office. The Tribunal considered the appropriate weight to be given to each of these four categories of information.

Section 42 – engagement of the qualified exemption for legal professional privileged information

The Tribunal found that the FCO had properly applied this exemption and it commented that the FCO could in fact have claimed that more information was subject to legal professional privilege.

The balance of the public interest

The Tribunal considered the balance of the public interest in relation to the information which engaged one or more of the qualified exemptions. It did not have to apply any public interest test to the information which engaged the absolute exemptions in section 23(1) or section 23(5).

The Tribunal found that there was a very strong public interest in transparency and accountability around the application of the Government’s public policy opposing extraordinary rendition. This interest was heightened where Ministers have had to correct earlier statements made to Parliament about the application of the policy and where there were claims that US extraordinary rendition had helped to foil terrorist plots in the UK. There was a particularly weighty public interest in knowing whether the Government has been involved, and if so the extent of that involvement, in the detention of British nationals and residents, their rendition to Guantanamo Bay and the attempts by the Government to secure their release. There was a strong public interest in knowing whether there was any impropriety by the UK Government in relation to the letter of 21 August 2008 to the Divisional Court.

On the other hand, there was a very strong public interest in the maintenance of the ‘control principle’ governing the use of secret intelligence information supplied to the UK through security and diplomatic channels, so as not to prejudice the supply of intelligence forming part of a ‘mosaic’ enabling a picture of potential terrorist activity, or threats to national security or UK interests abroad to be built up and countered. There was an even weightier public interest where the US was involved, as the UK’s most important bilateral ally and provider of much security information. There was a public interest in protecting from disclosure deliberations within Government on the formulation and development of policy. The strength of that interest depended on whether there was a need to maintain a safe space for such deliberations. There was a weightier public interest for protecting Ministerial communications in relation to detainees at Guantanamo Bay, given the sensitivity of the matter in diplomatic relations with the US. There was a strong public interest in maintaining the expectations of confidence for diplomatic exchanges. There was an inherently strong public interest in maintaining legal professional privilege including Law Officers advice, which was particularly weighty when litigation was continuing on closely related matters.

In relation to the requests involving international relations, the Tribunal found that the public interest in maintaining the exemption outweighed the public interest in disclosure. The public interest went to the willingness of the US to share with the UK all types of secret intelligence material. The reasonableness of the US attitudes was not part of the balancing exercise; it was the fact of the existence of those attitudes which mattered. The Tribunal had considered in closed session whether there was any evidence of impropriety by the FCO in relation to the letter of 21 August 2008 to the Divisional Court and found that there was no such evidence. In relation to other information, the Tribunal satisfied that there was nothing which would add to the public knowledge of the mistreatment of Mr Mohamed. If there had been new information, this would have weighed significantly in striking the balance, but there was not.

In relation to the requests involving legal professional privilege or Law Officers advice, the Tribunal found that the balance of the public interest was in favour of maintaining the exemptions in sections 42 and section 35(1)(c). At the time of the requests, civil claims were being pursued against the Government by a number of former detainees. It would undermine the relationship between lawyer and client if privileged material was released in this case. Counsel for the Government are when necessary provided with access to highly confidential information in order to provide the most comprehensive advice. The advice requested in this case could not reasonably be regarded as old or no longer live.

In relation to the requests involving the formulation and development of Government policy, the Tribunal found that the balance of the public interest was in favour of maintaining the exemption. It took into account that the policy regarding the release and return of detainees in Guantanamo Bay was very much live at the time of the requests, that policy continued to develop and the disputed information included drafts which were not necessarily the Government’s final position. There was a very strong public interest in the Government having a safe space to develop this policy.

Decision

The Tribunal upheld the Commissioner’s decisions, except where the Commissioner conceded to points raised by the FCO in a cross-appeal and except in relation to four documents where no exemption applied.

Finally, this post could not omit  mentioning that11KBW’s chief Panopticonner Robin Hopkins represented the Information Commissioner, Joanne Clement (11KBW) acted pro bono to represent APPGER, and Karen Steyn (also of 11KBW) and Julian Blake represented the FCO.

Rachel Kamm, 11KBW

CHILLING EFFECT, SAFE SPACE AND THE NHS RISK REGISTERS

April 15th, 2012 by Robin Hopkins

In a recent post, Panopticon brought you, hot-off-the-press, the Tribunal’s decision in the much-publicised case of Department of Health v IC, Healey and Cecil (EA/2011/0286 & EA/2011/0287). Somewhat less hot-off-the-press are my observations. This is a very important decision, both for its engagement with the legislative process and for its analysis of the public interest with respect to section 35(1)(a) of FOIA (formulation or development of government policy) – particularly the “chilling effect” argument. At the outset, it is important to be clear about what was being requested and when.

Risk registers in general

The DOH prepared two “risk registers” documenting the risks associated with implementing the “far-reaching and highly controversial” NHS reforms under what was then the Health and Social Care Bill. The Tribunal heard that risk registers are used widely across government for project planning. They provide snapshots (rather than detailed discussions) combining the probability of and outcomes from any given risk associated with the proposed reform; risks are then classified in red, amber or green terms. According to Lord Gus O’Donnell, who gave evidence in support of the DOH’s case, risk registers are the most important tool used across government to formulate and develop policy for risk management in advising ministers. John Healey MP, one of the requesters in this case, said that he was a minister for ten years and was never shown such a register.

The requests and these particular registers

On 29 November 2010, Mr Healey requested a copy of the “Transition Risk Register” (TRR). This, the Tribunal found, was largely concerned with operational matters; it aimed to identify implementation risks. By this stage, the government had already published its White Paper on the reforms. Crucially, the Tribunal’s finding was that the broad policy decision had been taken by the time of the White Paper. The subsequent consultation was largely directed at how best to implement the White Paper. In response to that consultation, the government adhered to the vast majority of its plans, and set about implementing them early where possible.

On 28 February 2011, the second requester, Nicholas Cecil, asked for a copy of the Strategic Risk Register (“SRR”). This was concerned with potential policy decisions for ministers. By that time, the Bill had been laid before Parliament. Parliament’s reaction meant that, in a number of respects, ministers were called upon to rethink policy decisions surrounding the NHS reforms.

Both requests were refused. The IC ordered that they be disclosed. The Tribunal upheld the IC’s decision on the TRR, but allowed the DOH’s appeal on the SRR.

The approach to section 35(1)(a) of FOIA

Before the Tribunal, it was accepted that this exemption was engaged with respect to both registers. The Tribunal considered that the need for a safe space for policy-making was not linear. Its analysis is worth quoting in detail:

“We are prepared to accept that there is no straight line between formulation and development and delivery and implementation. We consider that during the progress of a government introducing a new policy that the need for a safe space will change during the course of a Bill. For example while policy is being formulated at a time of intensive consultation during the initial period when policy is formed and finalised the need for a safe space will be at its highest. Once the policy is announced this need will diminish but while the policy is being debated in Parliament it may be necessary for the government to further develop the policy, and even undertake further public consultation, before the Bill reflects the government’s final position on the new policy as it receives the Royal Assent. Therefore there may be a need to, in effect, dip in and out of the safe space during this passage of time so government can continue to consider its options. There may also come a time in the life of an Act of Parliament when the policy is reconsidered and a safe space is again needed. Such a need for policy review and development may arise from implementation issues which in themselves require Ministers to make decisions giving rise to policy formulation and development. We therefore understand why the UCL report describes the process as a “continuous circle” certainly until a Bill receives the Royal Assent. However the need for safe spaces during this process depends on the facts and circumstances in each case. Critically the strength of the public interest for maintaining the exemption depends on the public interest balance at the time the safe space is being required.

We would also observe that where a Bill is a Framework Bill we can understand that even after it receives the Royal Assent there will be a need for safe spaces for policy formulation as secondary legislation is developed. We note in this case that the Bill, although suggested by DOH to be a Framework Bill, is prescriptive of economic regulation, and cannot be described purely in framework terms.”

Public interest factors in favour of maintaining the exemption: safe space and chilling effect

One of the DOH’s witnesses contended that the registers allowed a safe space for officials to “think the unthinkable”, but the Tribunal found it difficult to see how the registers – particularly the TRR – could be described in that way: “the TRR identifies the sorts of risks one would expect to see in such a register from a competent Department”. Nonetheless, the Tribunal accepted the strong public interest in there being a safe space for policy formulation.

The main argument concerned the chilling effect, which Lord O’Donnell addressed in his evidence. The Tribunal considered that there was no actual evidence of the chilling effect following other instances of comparable disclosures (e.g. following OGC v IC (EA/2006/2068 & 80), or following a 2008 disclosure of a risk register concerning a third runway at Heathrow). Similarly, a 2010 report from UCL’s Constitution Unit concluded there to be little evidence for the chilling effect.

Overall, the Tribunal cautioned against treating qualified exemptions as absolute ones. It said:

“We would observe that the DOH’s position expressed in evidence is tantamount to saying that there should be an absolute exemption for risk registers at the stages the registers were requested in this case. Parliament has not so provided. S.35 (and s.36) are qualified exemptions subject to a public interest test, which means that there is no absolute guarantee that information will not be disclosed, however strong the public interest in maintaining the exemption.”

Factors in favour of disclosure

The DOH’s witnesses sought to play down the significance of the NHS reforms in comparison to other important reforms implemented by government. Mr Healey, however, argued that they were exceptional. The Tribunal agreed with him.

It also noted that the Conservatives’ manifesto for the 2010 election had promised an end to top-down NHS reorganisation, but that its NHS White Paper then appeared to propose exactly such a reorganisation. It was not preceded by a Green Paper. It was clear to the Tribunal that the White Paper was published in a hurry and to much public concern. Given the scale and controversial nature of the reforms, transparency of decision-making was very important.

The Tribunal found the public interest balance to be very difficult in this case. Judging the matters at the time of the DOH’s refusal notices, the Tribunal concluded that the balance favoured disclosure of the TRR but not the SRR – due to the differences in the nature of the registers and the timing of the requests (see above).

Section 40(2) of FOIA and civil servants’ names

Finally, the Tribunal also considered the DOH’s reliance on section 40(2) to redact the names of a number of civil servants on the grounds of their being insufficiently senior for disclosure to be fair. The Tribunal ordered the disclosure of the majority of these names. In so doing, it focused on the substance of what each individual did with respect to this particular information – rather than on their Civil Service grades.

Robin Hopkins

EXTRAORDINARY RENDITION: NEW APPGER DECISION ON SS. 23, 27, NCND AND OTHERS

April 12th, 2012 by Robin Hopkins

I blogged yesterday (see below) on APPGER’s litigation in the US courts concerning information about security bodies and their role in extraordinary rendition. The UK’s First-Tier Tribunal has today promulgated its decision on a separate set of requests made by APPGER to the Foreign & Commonwealth Office. The decision deals primarily with sections 23, 27, 35, 42 and the ‘neither confirm nor deny’ provisions under sections 23(5) and 24(2) of FOIA.

One of my fellow Panopticonners will post some commentary on the case shortly. In the mean time, here is the hot-off-the-press decision:

20120412_APPGER_decision

SECURITY BODIES, PRIVATE EMAILS – PARALLELS BETWEEN THE UK & US

April 11th, 2012 by Robin Hopkins

Today was one of striking parallels between the USA and the UK in terms of litigation concerned with access to information.

APPGER and security bodies

First, one of The Independent‘s main stories this morning concerned a case brought in the US by the UK’s All Party Parliamentary Group on Extraordinary Rendition (APPGER). Readers will recall that in the UK, APPGER was partially successful before the Upper Tribunal last year; the decision of the First-Tier Tribunal in a second case (the hearing of which concluded in February 2012) is awaited.

In the US, APPGER requested information on extraordinary rendition from the Department of Defense, the CIA, the Department of Homeland Security, the Department of Justice , the Department of State, the FBI and the National Security Agency. Those requests were largely refused. APPGER appealed to the Courts. The US District Court, District of Columbia, upheld the Defendants’ partial motion to dismiss APPGER’s appeals. Its judgment is available here.

Prior to 2002, the exemptions under FOIA in the US turned on the nature of the requested information, not the identity of the requester. In 2002, however, Congress amended FOIA to include a “foreign government entity exemption”, which provides that no agency that is a member of the “intelligence community” shall make any record available to “(i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or (ii) a representative of a government entity described in clause (i).”

The Court held that APPGER fell within this exemption. It construed the terms “government entity” and “representative” according to their “plain meaning” and not according to UK law. On this basis, it found (contrary to APPGER’s arguments) that the UK Parliament is a “government entity”: it is the “primary organ tasked with the expression of sovereign political authority and its enactment into law” and is integral to the government of the UK. APPGER was held to be a “subdivision” of Parliament, and its chair, Andrew Tyrie MP (who has never been a government minister) was held to be a “representative” for the purposes of part (ii) of the exemption.

APPGER had also argued that its members had made their requests in their capacities as individuals rather than public officials. The Court rejected this argument in striking terms:

“It would be particularly inappropriate for the court to adopt the plaintiffs’ suggestion because their proposed exception would, without doubt, swallow the rule. The defendants describe the portentous consequences of the plaintiffs’ argument if drawn to its logical extreme: recently deceased North Korean dictator Kim Jong Il, despite his status as the Supreme Leader of the Democratic People’s Republic of North Korea, would have been able to file a FOIA request as long as he claimed to do so in his “individual capacity.”… It is not necessary to follow the defendants’ parade of horribles to its furthest reaches, however. Instead, the court observes that a statute susceptible of either of two opposed interpretations must be read in the manner which effectuates rather than frustrates the major purpose of the legislative draftsmen…. If the court is to give any meaning to the foreign government entity exception, this provision cannot turn on such evanescent factors as the subjective intent of the individual who files the claim. To do so would essentially allow a system of voluntary compliance — which is to say, no compliance at all. Accordingly, the court rejects the contention that the plaintiffs may evade the foreign government entity exception by filing in their “individual capacity.”

The Kim Jong Il point aside, the above passage is notable for its contrasts with axioms of FOIA in the UK: in the US, FOIA is motive blind, but no longer applicant blind.

Private email accounts

In the second of today’s US cases (thanks to the BBC’s Martin Rosenbaum for alerting me to this one), the San Antonio Express-News made a request under the Texas Public Information Act for emails concerned with public business sent to and from the private email account of the Bexar County Commissioner, Tommy Adkisson. Rather like the UK’s Information Commissioner in his Department for Education decision, the Texas Attorney General took the view that these emails should be disclosed. A District Judge in Austin has dismissed Mr Adkisson’s case and upheld the Attorney General’s position (though an appeal seems likely). Time will tell whether the UK Tribunal takes a similar view of the Department for Education’s appeal concerning private email accounts.

Robin Hopkins

Article 10 and Access to Information (again…) – the view from the Grand Chamber

April 10th, 2012 by Joe Barrett

Loyal readers know that the past 18 months have seen a succession of cases address whether Article 10 of the ECHR (the right to freedom of expression) comprehends a right of access to information held by public bodies.

As previously blogged by Julian Milford, in Sugar v BBC the UK Supreme Court (per Lord Brown, in his own inimitable style…) gave the argument that Article 10 could confer a right of access to information exceedingly short shrift. The Court of Appeal in Kennedy v Charity Commission [2012] EWCA Civ 317 (blogged by Anya Proops) then handed down a judgment that, notwithstanding the CoA’s somewhat quixotic decision to grant permission to appeal, appeared to signal that in Sugar the Article 10 ‘access to information’ argument had been given its quietus.

However, the plot simply continues to thicken as the Grand Chamber of the ECtHR has just handed down a judgment – Gillberg v Sweden, Application no. 41723/06, 3 April 2012 – which (while far from a model of clarity) appears to endorse the proposition that Article 10 can (in certain circumstances, the scope of which are almost entirely unclear) confer a right of access documents held by public bodies. The crucial paragraph of the Grand Chamber’s judgment is at [93] where it is stated that:

“…In the Court’s view, finding that the applicant had such a right under Article 10 of the Convention would run counter to the property rights of the University of Gothenburg. It would also impinge on K’s and E’s rights under Article 10, as granted by the Administrative Court of Appeal, to receive information in the form of access to the public documents concerned, and on their rights under Article 6 to have the final judgments of the Administrative Court of Appeal implemented (see, mutatis mutandis, Loiseau v. France (dec.) no. 46809/99, ECHR 2003-XII, extracts; Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III; and Hornsby v. Greece, judgment of 19 March 1997, § 40, Reports 1997-II).”

It should be noted immediately that: (i) the issue as to whether Article 10 connotes a right of access to documents was very much peripheral to the case, and so the Grand Chamber’s observation is very much obiter dictum (or the Strasbourgian (sic) equivalent); (ii) the passage does not cite the recent Strasbourg case law said to support the proposition that Article 10 confers a right of access to information e.g. Tarsasag v Hungary etc; and (iii) the critical part of the passage appears premised on the assumption that the content of the ‘Article 10 right’ of access to documents is defined by Swedish domestic law (rather than enjoying an autonomous ambit as defined by the ECHR itself).

However, notwithstanding these important caveats, this does appear to be the first occasion on which the Grand Chamber has endorsed the proposition that Article 10 (at least in some circumstances) is capable of conferring a right of access to documents held by public bodies. Could this prompt the UK Supreme Court in Kennedy to reappraise the stance towards the ambit of Article 10 advocated by Lord Brown in Sugar ? Watch this space.

Joe Barrett

TRIBUNAL’S DECISION IN DEPARTMENT OF HEALTH RISK REGISTER CASE

April 5th, 2012 by Robin Hopkins

The First-Tier Tribunal’s decision in Department of Health v IC, John Healey MP and Nicholas Cecil (EA/2011/0286 & 287) played a central role in the highly-charged political debates about the Health and Social Care Act. The Tribunal dismissed the Department’s appeal in part, but was unable to give written reasons before the Act entered the statute books. The Tribunal’s written reasons have now been promulgated and are available here:

2012_04_05; DOH v IC Healey final decision

Panopticon analysis will follow, but we thought some of our readers would like a hot-off-the-press look at the decision in the interim.

Robin Hopkins

INTERNET SURVEILLANCE – A SNOOPER’S CHARTER?

April 5th, 2012 by Anya Proops

In 2004, the former Information Commissioner, Richard Thomas, commenting on the then Labour Government’s proposed ID card scheme, warned us to take care that we do not ‘sleepwalk into a surveillance society’. That warning appears to have particular resonance this week following announcements by the Coalition Government of plans to extend current surveillance legislation so as to allow for the instantaneous tracking of internet usage by individuals within the UK. The plans would reportedly allow GCHQ to access all internet traffic (including information about webmails, web-browsing, internet calls and social networking activities) in real-time and on demand. Whilst the detail of the plans remains decidedly obscure, some media reports suggest that they are directed not only at capturing new technological modes of communication but also at loosening current restrictions on accessing tracking information so that, for example, warrants would not have to be sought in individual cases. The Government, which appears to be facing a huge backlash over the proposals, has indicated that current laws need to be updated so as to capture modern modes of communication which are not (or not adequately) caught by the existing regime, e.g. Skype calls and Facebook messaging. It has also suggested that rights of access under the new legislation would be limited to tracking information (e.g. who sent an email to whom, when and from where) and would not embrace any automatic right of access to the substantive content of the communication. However, critics have been swift to point out the potential threat to civil liberties posed by the plans, not to mention the inevitable risk of function creep. They highlight the dangers of a system which potentially draws, not only criminals and those posing a danger to our society into the snooping net, but potentially all innocent law abiding citizens as well. In an effort to defuse the current controversy, the Deputy Prime Minister has now promised  that open Parliamentary hearings would be held to examine draft clauses of any new bill based on the plans. However, it remains to be seen how the Government will seek to reconcile any draft bill with both the restrictions on the processing of personal data embodied in the existing 1995 Data Protection Directive the right to privacy afforded under Article 8 ECHR. It is of course inevitable that, as technology advances, so too will State surveillance systems need to evolve. However, the critical question is whether those systems can effectively be crafted so as to ensure that the surveillance society is kept within proper bounds.