Retention of police custody photographs – not compliant with Article 8

June 27th, 2012 by Anya Proops

It seems to be a busy month in terms of information law cases involving the police. Earlier this month, Robin Hopkins blogged about the recent Catt case where the Administrative Court held that the retention of data about a protestor did not breach the protestor’s Article 8 right to privacy (see his post here). I then blogged on a recent Tribunal case where the Tribunal found that the Devon & Cornwall Constabulary had not breached its obligations under FOIA when it refused to disclose the location of its automatic number-plate recognition cameras (see my post on the Mathieson case here). Then on 22 June 2012, a further judgment was handed down by the Administrative Court in which the court considered the impact on Article 8 on the retention of photographic information retained by the Met Police: R (RMC & FJ) v Commissioner Of Police Of The Metropolis & Ors [2012] EWHC 1681 (Admin).

The judgment addressed two cases. In the RMC case, R had been arrested on suspicion of causing ABH to a police community support officer who had stopped her riding her bicycle on the footpath. In the FJ case,  F was arrested at the age of 12 on the suspected rape of his second cousin. Both R and F were fingerprinted and photographed by the police and DNA samples were taken. Neither R nor F were prosecuted. The police considered the requests under the ACPO Exceptional Case Procedure in the Retention Guidelines and decided that the fingerprints and photographs should be retained. The Commissioner’s case before the court was that police policy was to apply the Guidance on the Management of Police Information (MoPI), following the MoPI Code of Practice. R and F obtained permission to apply for judicial review in relation to the retention of the custody photographs. F also obtained permission in respect of certain of his data stored on the police national computer (PNC).

The court held that the retention of the custody photographs amounted to an unlawful interference with R’s and F’s Article 8 rights. Importantly, the court held that the individual’s reasonable expectations were not the only considerations when it came to whether there had been an interference with their Article 8 rights. Following S v United Kingdom, the mere retention of photographic data by the police, irrespective of the individual’s reasonable expectations was sufficient to amount to an interference with Article 8 rights (R (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414 considered). However, the court went on to find that in any event the retention of the photographs relating to R and F interfered with their right to privacy under Article 8 in view of their reasonable expectations that the photographs would not be retained.

The court went on to find that that the Commissioner’s policy on retention of the custody photographs amounted to an unlawful interference with R’s and F’s Article 8 rights. This was because it failed to strike a fair balance between the competing public and private interests and did not in all the circumstances meet the requirements of proportionality imposed under Article 8(2). In reaching this conclusion, the court took into account in particular that the policy did not draw an adequate distinction between the convicted and those who were either not charged or were charged but acquitted and, further, that photographs were retained for a minimum of six years and in practice were likely to be retained for a much longer and indeed potentially indefinite period. In respect of F, the court also noted that the policy failed to take into account that F was a minor at the time of arrest. The court went on to order that the Commissioner should have a further reasonable period within which to revise the policy so as to render it compliant with Article 8.

Notably, the court reached rather different conclusions on the question of whether the information stored on the PNC with respect to F breached his Article 8 rights. In particular, it held that, whilst the retention of the rape allegation on F’s PNC records engaged Article 8 rights, the inference with those rights was plainly proportionate and justified in all the circumstances. This was particularly because a PNC record which did not include the basic history of F’s involvement with the police, including the rape allegation, would be an incomplete and potentially misleading record.

Anya Proops

Facebook revisited – Another Norwich Pharmacal Case

June 20th, 2012 by Anya Proops

I posted recently about an important recent case on the subject of accessing personal data about facebook users (see my post on the Nicola Brookes case here). In my post, I said that it was understood that this may have been the first case in which an individual has been able to secure a court order requiring facebook to disclose personal data about its users. The wonders of the internet are such that I received today an email from the Cayman Islands’ Deputy Information Commissioner, Jan Liebaers, alerting me to the fact that there had in fact been an earlier judgment of the High Court making a similar order: Applause Store Productions Ltd and another v Raphael [2008] EWHC 1781 (QB). The Applause Store case was actually a libel case. The background to the case was that a fake facebook page had been set up which contained material which was defamatory of one of the claimants (MH). An issue arose in the case as to who had been responsible for setting up the fake page. It would appear from paragraph 10 of the judgment that the claimants’ solicitors, Olswang, obtained a Norwich Pharmacal order against Facebook Inc for disclosure of the registration data provided by the user responsible for creating the false material, including e-mail addresses, and the IP addresses of all computers used to access Facebook by the owner of those email addresses. Facebook Inc went on to provide Olswang with evidence, which was not contested at the hearing, showing that the profile was created on a computer using an IP address which was accepted to have been the Defendant’s and that the relevant group page was created on a computer using that same IP address on the afternoon of 20th June 2007. The remainder of the judgment concerned the question of whether the court should find that the Defendant was the individual who set up the fake facebook page and, hence, that he was responsible for defaming MH. On this issue, the judge held that the Defendant’s case was utterly implausible and that he was liable in respect of the defamation. My thanks to Jan Liebaers for the alert about this important case. Taken together the Brookes case and the Applause Store case reveal a clear appetite on the part of the judiciary to issue orders requiring facebook to provide evidence where this is necessary in order to further the interests of justice.

Anya Proops

Police Surveillance – New tribunal decision

June 20th, 2012 by Anya Proops

Earlier this month Robin Hopkins blogged on a recent admin court judgment applying Article 8 to the police’s act of retaining data on a protestor (see his post on the Catt case here). This week the Information Tribunal handed down a judgment concerning another aspect of police surveillance, namely the automatic number-plate recognition (ANPR) system, which is now in widespread use across Great Britain. In Mathieson v IC & Devon & Cornwall Constabulary (EA/2010/0174), Mr Mathieson, a Guardian journalist, requested disclosure from the Constabulary of the location of all the ANPR cameras within the area of the Devon & Cornwall Constabulary. The Constabulary refused disclosure on an application of ss. 24 (national security) and 31 (prevention of crime) FOIA. The Commissioner upheld the Constabulary’s refusal notice on the basis that the location information was exempt from disclosure under s. 31. Mr Mathieson appealed against the Commissioner’s decision.

At the hearing before the Tribunal, it was conceded on behalf of Mr Mathieson that, on all the evidence, both ss. 24 and 31 were engaged in respect of the location information. The key issue which the Tribunal was called upon to determine was whether the public interest balance nonetheless weighed in favour of disclosure. In summary, the Tribunal held that the use of the ANPR system by the Constabulary inevitably gave rise to serious civil liberty concerns. This was not least because the system indiscriminately recorded the number-plate of every single vehicle passing before the individual cameras, irrespective of whether the vehicles may be being used as part of a criminal enterprise or as a result of individuals innocently and lawfully going about their day to day business. However, it nonetheless went on to find that the public interest balance weighed firmly in favour of maintaining the exemptions. This was because, on all the available evidence, it was clear that revealing the location of the individual cameras within Devon and Cornwall would have enhanced the ability of criminals, including terrorists, effectively to bypass the ANPR system, thus helping them to evade detection and prosecution.

In the course of its decision, the Tribunal held that: ‘there is always likely to be a substantial public interest in maintaining the exemptions we are concerned with, in particular that provided by section 24 which relates to national security’ (§8). It also held that, whilst disclosure of the location information may only have tipped the balance slightly in favour of the criminals, not least because they may in any event have been able to identify the cameras through their own efforts, that was sufficient to result in a situation where the location information must be treated as exempt (§10).

Notably, a separate question was raised during the course of the appeal as to whether the information captured by the ANPR system amounted to ‘personal data’ in the hands of the Constabulary. Mr Mathieson and the Commissioner submitted that it did. The Constabulary disputed this conclusion. Ultimately, the Tribunal took the view that it did not need to resolve this dispute for the purposes of determining the appeal.

I am limited in what I can say about this case, having appeared on behalf of the Commissioner. However, it is clear from the judgment that there is an abiding issue as to the legality of the ANPR system and, in particular, whether it unjustifiably interferes with the right to privacy under Article 8 and/or with the data subject’s rights under the DPA. Whilst this is a nettle which the Tribunal itself considered it did not need to grasp in the circumstances of the Mathieson appeal, there can be little doubt but that it is a nettle which will be subject to judicial examination in the future.

Anya Proops

11KBW Information Law Reports with JUSTIS, 4th edition update released

June 20th, 2012 by Panopticon Blog

The fourth edition of the Information Law Reports is now available. Reported cases include: Kennedy v IC, All Party Parliamentary Group on Extraordinary Rendition v IC & FCO, Breeze v IC and the Chief Constable of Norfolk Constabulary and the Crown Prosecution Service, Bolton v IC & East Riding Yorkshire Council and Cranfield University v IC

The reports are edited by Timothy Pitt-Payne QC, Anya Proops, and Robin Hopkins, three of the leading practitioners in the field of information law and members of 11KBW’s Information Law Group.

The reports were written by Members of the Information law team including  Timothy Pitt-Payne QC, Anya Proops, Robin Hopkins, Jane Oldham, Clive Lewis QC, Akhlaq Choudhury, Julian Milford, Holly Stout and Rachel Kamm.

For more information on the Information law reports and how you get your free trial click here

Restriction on Local Authority surveillance

June 18th, 2012 by jamesgoudie

The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2012, SI 2012/1500 (“the 2012 Order”), made on 11 June 2012 and coming into force on 1 November 2012, restricts the circumstances in which local authorities may authorise directed surveillance under the Regulation of Investigatory Powers Act 2000 (“RIPA”).  The 2012 Order amends the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010, SI 2010/521 (“the 2010 Order”), which prescribes the offices, ranks and positions of the individuals within a public authority who have power to grant authorisations for the carrying out of directed surveillance, as defined by s26(2) of RIPA, and sets out the restrictions on the circumstances in which authorisations can be granted.

Article 2(4) of the 2012 Order inserts a new Article 7A into the 2010 Order, to impose a new restriction on individuals holding a prescribed office, rank or position in any county council in England, a London borough council, the Common Council of the City of London in its capacity as a local authority, the Council of the Isles of Scilly, or any county council or county borough council in Wales. Such an individual may not now grant an authorisation for the carrying out of directed surveillance unless it is for the purpose of preventing or detecting a criminal offence and it meets the condition set out in New Article 7A(3)(a) or (b). Those conditions are that the criminal offence which is sought to be prevented or detected is punishable, whether on summary conviction or on indictment, by a maximum term of at least 6 months of imprisonment, or would constitute an offence under sections 146, 147 or 147A of the Licensing Act 2003 or section 7 of the Children and Young Persons Act 1933.

Information Law in the Facebook Age

June 11th, 2012 by Anya Proops

Facebook has now been in existence for some eight years. Its active users exceed 900 million. However, we are still very much in the early days of understanding how information law applies to information, including personal data, which is stored and shared on Facebook. In this context, it is worth noting two recent judicial decisions which bring into sharp focus the way in which information on Facebook may be both used and misused.

The first case involved a claim brought in the High Court by Nicola Brookes. Ms Brookes had been subject to extremely serious abuse on Facebook after she posted a comment online supporting a contestant on the X-Factor. The abuse included the setting up of a fake Facebook page which purported to be in her name and which resulted in Ms Brookes being falsely accused of being a paedophile and drug-user. Ms Brookes’ abusers of course operated anonymously so there was no way for Ms Brookes to identify them merely by use of the site. Having then apparently failed to obtain details of the identity of the abusers directly from Facebook, Ms Brookes was obliged to apply to the court for a Norwich Pharmacal order requiring Facebook to disclose the names, email addresses and IP addresses of the people who had launched the abusive messages. It is understood that this may be the first case in which an individual has been able to secure a court order requiring Facebook to disclose personal data about its users. No doubt, this judgment (which it seems has yet to be reported) sends out an important message to those individuals who would wish to engage in anonymous cyber-bullying. However, query just how much reassurance the judgment gives to those who realistically are not in a position to incur the considerable costs entailed on engaging in the type of litigation which Ms Brookes was obliged to undertake.

The second case involved the application of s. 40 FOIA (the personal data exemption) to the names of a number of Youth Councillors, including a number of Youth Councillors who were minors, in circumstances where it was discovered after the Commissioner issued his decision notice that many of the names could be found by accessing an effectively public-facing Facebook page: Morley v IC & Surrey Heath Borough Council (EA/2011/0173).

The background to the Morley case was as follows: in 2010, the Council approved a planning application to allow for the creation of a recreation park within its area; as part of the planning process the Council unofficially consulted the Surrey Heath Youth Council; the Youth Council is funded by Surrey County Council and comprises youth councillors who are all aged between 13 and 19; after the planning application was approved, Mr Morley, who objected to the development, requested disclosure of the names of the members of the Youth Council who had been consulted by the Council; that request was refused by the Council on the basis that the names amounted to personal data which were exempt from disclosure under s. 40. It appears that after the Council refused Mr Morley’s request, Mr Morely discovered that the Youth Council had a Facebook page and, further, that information on that page included the names of various Youth Council members along with their photographs. Mr Morley’s position was that all the names should be released on the basis that there is a strong need for the planning process to be fully transparent and that this principle applied equally to those who are unofficially consulted and, indeed, irrespective of whether they may have been minors at the time they were consulted or, further, at the time of the request. He further submitted that there was in any event no proper justification for withholding the names of those Youth Councillors who had voluntarily agreed to place their data on a Facebook page which was open and accessible to anyone who registered with Facebook. The Commissioner and the Council argued before the Tribunal that all of the names should be withheld, not least because it could not be assumed that the individual Youth Councillors listed on the Facebook page had been listed at the time of the request.

By a majority decision, the Tribunal concluded that s. 40 was not engaged with respect to the Youth Councillors who were listed on the Facebook page but that it was engaged in respect of the other Youth Councillors. With respect to those Youth Councillors who were listed on Facebook, the Tribunal held as follows:

’77. … their decision to put their names and photographs into the public domain considerably diminishes the strength of the respondent’s arguments for why disclosure of their names would not be fair. In particular, arguments that they may not have expected that the information would be disclosed, that they have not consented to their names being disclosed, and that disclosure would cause them distress, rapidly fall away, in our view, where the Youth Councilors have themselves chosen to make the information available in a widely used and easily accessible social networking site, without placing any restrictions on access. In our view, it cannot be said to be unfair to disclose the names of the Youth Councillors whose names appear on Facebook’.

With respect to the argument that the names should still be withheld because it could not be assumed that the individuals in question were listed on Facebook at the time of the request, the tribunal said this:

’80. However, while we acknowledge the problems identified by the Council and Commissioner, FOIA does not require a public authority to comply with a request only when the information it holds precisely matches what the requester has asked for. A requester will often have the disadvantage of not knowing exactly what the public authority holds. What the public authority must do in this situation is to engage with the requester, pursuant to its obligations under section 16 (obligation to provide advice and assistance), to explore whether the information it does hold, even if imperfect, can satisfy the request. The Council has not done this. We do not criticise it. We are mindful that the Council was not aware of the Facebook page at the time that it refused the request, and in any event has taken the position that the information is exempt. However, the mismatch between what the Appellant has requested and what the Council can provide is not itself a reason for refusing to disclose the information under section 40(2), nor is it a basis on which disclosure can be said to be unfair’.

With respect, it is not entirely clear how these points answer the argument which the Commissioner and the Council was advancing. But perhaps the more important point emerging from this decision is that it suggests that individuals, even where they are minors, must have a substantially lower expectation of privacy in respect of their personal data in circumstances where they opt to place that data on an effectively unrestricted Facebook page.

Anya Proops

Important new privacy judgment: police retention of protestor’s data not an Article 8 infringement

June 1st, 2012 by Robin Hopkins

The Admin Court (Gross LJ and Irwin J) has handed down judgment this week in Catt v Association of Chief Police Officers and Commissioner of Police of the Metropolis [2012] EWHC 1471 (Admin). It is an extremely important judgment on Article 8 ECHR in the context of personal information retained for policing purposes. It is also notable for its analysis of protest as an inherently public activity.

The background

ACPO launched a National Domestic Extremism Database containing information provided by police forces. The Metropolitan Police subsequently assumed responsibility for the database. The database contained information relating to the attendance by the claimant (an 87-year old protestor of good character) at various political protests made by a group called “Smash EDO”. Smash EDO opposes a US arms manufacturer with a factory in Brighton; its activities have often involved violent disorder and criminality (though apparently not by the claimant), necessitating a substantial police presence. Police officers overtly gathered information (including photographic and video material) at those protests. They then compiled reports on the protests, identifying a number of individuals including the claimant. The information at issue in this case comprised those sorts of reports – they were about incidents rather than the claimant per se, although the claimant was identified in the reports. The defendants retained that information pursuant to the statutory Code of Practice on the Management of Police Information, made under the Police Acts 1996 and 1997, and associated Guidance on the Management of Police Information.

The issues

The overarching issue was whether this infringed Mr Catt’s rights under Article 8 ECHR, the right to respect for private life.

It is important (if not entirely surprising) to note how the parties and the Court saw Article 8 and the Data Protection Act 1998 interacting (see paragraph 6(iv)). All agreed that the DPA was theoretically in play, but added nothing: if the Article 8 claim succeeded then the DPA claim was not needed; if Article 8 was engaged, but the interference was justified, then the DPA claim would automatically fail; if Article 8 was not engaged, the prospects of success under the DPA were negligibly remote.

The issues were therefore: (i) whether there was an interference with the claimant’s rights under Article 8(1), and (ii) if so, whether this interference was justified. The Court said no on both counts, by application of the authorities to three crucial findings.

Crucial findings

First, the Court accepted the need for such information to be retained by the police. Gross LJ said this at paragraph 19:

“… the use of intelligence is a fundamental policing tool.  Investigators need the ability to identify relationships within protest groups. Likewise, they need to be able to identify individuals associated with the use of particular tactics, together with those with a propensity to violence, disorderly behaviour and organised coordinated actions.  Although Mr. Catt has not been convicted of any offence, the evidence, which again I accept, is that his close association with violent members of Smash EDO and knowledge of this association is of intelligence value.  Such knowledge forms part of a “far wider picture of information”… needed by the police, inter alia, to investigate incidents of criminality and to assist the policing of future events.”

Secondly, “the essential nature of such activity [protesting] is that it is of a public nature. Indeed, its very object is to make others aware of his views and the causes to which he lends his support” (paragraph 36).

Thirdly, given the violent disorder which characterised Smash EDO’s activities, it was reasonable to expect the police to gather and retain such information. This was especially so as this information had been gathered by over rather than covert policing.

Issue 1: Article 8(1) neither engaged nor infringed

Given those findings, the Court concluded that the claimant’s rights under Article 8(1) were not engaged at all. The claimant’s reliance on R (Wood) v Commr of Police of the Metropolis [2009] EWCA Civ 414 did not assist: the facts were different, and it would be “unreal and unreasonable” to find an infringement of Article 8(1) in the present case.

Issue 2: interference would in any event be justified

The Court went on to conclude that even if there had been an interference with Article 8(1), this would be justified. The claimant had argued inter alia that he was not personally suspected of criminality and that there was no democratic oversight of the database system. The defendant argued inter alia that, given Smash EDO’s activities, the retention of this sort of information – police reports as opposed, for example, to photos or video material – was reasonably necessary and proportionate.

Gross LJ (with whom Irwin J agreed) had “no hesitation in concluding that any interference with Mr. Catt’s rights was amply justified under Art. 8.2”.

His reasons included the following (paragraph 64):

“Any interference with Mr. Catt’s Art. 8.1 rights was at the margins. The reports, the product of overt policing, did no more than record Mr. Catt’s public activities, the very object of which was to convey his views to as wide an audience as possible.  The reports were compiled and retained for intelligence purposes, in accordance with the Code and the Guidance, with a view to an appropriate police response to a campaign marred by serious, persistent criminality and posing a significant public order problem.”

Irwin J agreed that there was no expectation of privacy here, applying the approach in Campbell v MGN [2004] UKHL 22.

At paragraph 70 he added that it was not easy to see “… how it can affect the engagement of Art 8.1 that the material is recorded by police officers as opposed, say, to journalists; or collated and held within the National Extremism Database, as opposed to a local history archive in the town where the demonstrations have been held.  The latter distinction was advanced by Mr Owen (“the entries were not recorded on any database…”).  The issue is not whether the individual concerned likes or dislikes the thought of the data being held by this or that body: the issue is whether a reasonable expectation of privacy arises.  In my judgment, it does not arise in respect of any of the information in this case.”

Irwin J did, however, add this observation at paragraph 70, which might give rise to interesting arguments in future cases on such issues:

“Different questions might arise if material recorded in that context were collated with material which was private in its nature.  That does not arise in this case.”

What about ongoing retention of this information?

Gross LJ thought it sensible for the police to review its retention of this sort of information when the Smash EDO campaign concludes, but he agreed with Irwin J’s comments at paragraph that 73:

“… even when the Smash EDO campaign ends, it may yet be justifiable to retain some or all of this information.  The picture here is that there are connections between this group and parts of the animal rights movement, active before this group was formed.  It may be a legitimate function of intelligence to keep records of this group after it has ceased to be active, the better to understand the risks associated with after-coming groups with overlapping membership.  To my mind, there is no expectation that a review at a suitable point in the future will conclude otherwise.”

Robin Hopkins

Statutory bars on disclosure: don’t construe too widely

June 1st, 2012 by Robin Hopkins

The Tribunal’s decision in Cubells v IC and Wrightington, Wigan & Leigh NHS Foundation Trust (EA/2011/0183) is notable for the approach taken to construing a statutory bar on disclosure for the purposes of s. 44 of FOIA. There are hundreds of bars. Usually, they were drafted prior to FOIA. Tricky issues often arise as to how widely the prohibition extends, especially in a FOIA world.

Mr Cubells’ mother died while in the care of the Trust. He complained to the Parliamentary and Health Service Ombudsman, who declined to investigate. Mr Cubells then made a request under FOIA for information passed by the Trust to the Ombudsman pursuant to his complaint, and internal Trust information about the complaint.

The Trust refused the request, relying on s. 44 of FOIA and the prohibition of disclosure imposed by s. 15 of the Health Service Commissioners Act 1993, which provides that:

“Information obtained by the [Ombudsman] or his officers in the course of or for the purposes of an investigation shall not be disclosed except-

(a) for the purposes of the investigation and any report to be made in respect of it…”

The Commissioner agreed – but the Tribunal did not. Interestingly, it allowed and considered submissions by Maurice Frankel of the Campaign for FOI in support of Mr Cubells’ appeal. Relevant points from those submissions included the following. The prohibition was designed to provide reassurance to those supplying information that no improper disclosure of that information will occur. The prohibition should not interpreted as meaning that any third party holding information which it happens also to have supplied to the Ombudsman was itself bound by the same prohibition. Otherwise, strange results would follow. For example, the Trust would be prevented from even sharing information which had been passed to the Ombudsman with a patient’s GP or another health authority into whose area the patient moved. On the ICO’s reading, the Trust would be bound indefinitely by a prohibition on disclosure apparently aimed not at the Trust but at the Ombudsman. That cannot have been what Parliament intended.

The Campaign for FOI also raised arguments under the European Convention on Human Rights: an outcome that resulted in a blanket prohibition on the disclosure of information about the medical treatment of a family member would breach Article 8 ECHR. Also, on the ICO’s reading, the prohibition would extend to a complainant as well – in other words, if a complainant passed information to the Ombudsman, they would thereafter be prohibited from disclosing it further. That would breach Article 10 ECHR.

Before the Tribunal, the ICO relied on the judgment of Mrs Justice Dobbs in R (on the

application of Kay) v Health Service Commissioner [2008] EWHC 2063 (Admin) in contending that the prohibition should regarded as extending to both those to whom information was passed by the Ombudsman as well as those from whom the Ombudsman obtained it.

The Tribunal disagreed. It distinguished Kay and concluded that the prohibition:

“should be interpreted as imposing a prohibition only on the Ombudsman and her staff. It may follow, from what we have said above, that the prohibition should continue to apply, or should be imposed, if the Ombudsman needs to disclose any of the information she has obtained to a third party. There is no inconsistency there. The information, once obtained during an investigation, should obviously not be released from the prohibition on disclosure just because it becomes necessary for the Ombudsman to disclose it to a third party. There is no logical reason, however, for the prohibition to be imposed on those holding information that has been shared with the Ombudsman. The profoundly unattractive consequences which Mr Frankel outlined demonstrate the absurdity of such an outcome.”

In reaching its conclusion, the Tribunal did not need to consider the ECHR arguments. Those arguments may well, however, be raised again in future cases.

Robin Hopkins

Section 40 FOIA, NCND and the public interest

June 1st, 2012 by Robin Hopkins

The requester (anonymised for the purposes of the decision) in Mr A v IC and The Health Professions Council (EA/2011/0223) asked for information about the response given by a named registrant to an investigation allegedly being carried out by the HPC into that registrant’s fitness to practice. The IC found that a ‘neither confirm nor deny’ response was appropriate, given that to confirm or deny (NCND) whether or not the HPC held the information requested would in and of itself disclose to the public whether there a complaint as to the registrant’s fitness to practise had been made. This would breach the first data protection principle. Section 40(5)(b)(i) FOIA therefore applied.

The Tribunal agreed. Curiously, it approached its task under section 58 FOIA thus: “The Tribunal does not take the IC’s decision again, rather its task is to consider the Decision Notice and to consider whether it can be impugned on legal grounds.”

Its decision turned largely on the usual features of a request for personal data: privacy implications, reasonable expectations and so on. The Tribunal’s decision does, however, contain a number of points of interest concerning the correct approach to section 40.

First, when judging whether, for section 40(5) purposes, confirmation or denial would breach any of the data protection principles, the appropriate reference point was disclosure to the public, not disclosure to the individual requester, given the overall wording of section 40 and the ‘motive blind’ approach to FOIA. The Upper Tribunal in All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner [2011] UKUT 153 (AAC) appeared to think otherwise, but its observation was obiter, and the Tribunal in the present case declined to follow it.

Secondly, it followed that for the purposes of condition 6(1) of Schedule 2 to the DPA (which refers to the “legitimate interests of the … third party or parties to whom the data are disclosed”), the appropriate reference point was again the public. Public rather than private interests are what count for condition 6(1) purposes.

Finally, the NCND provisions of section 40(5) do not appear in the list of absolute exemptions at section 2(3)(f) of FOIA. Does this mean the public interest test must be applied, even where – as the Tribunal had found – disclosure would breach the first data protection principle? The Tribunal agreed with the IC and the HPC that the answer is ‘no’. It followed Heath v IC (EA/2009/0020) in finding that the word ‘provision’ at section 2(1) FOIA is sufficiently ambiguous (as to whether it means a section of FOIA as a whole, or rather subsections) to admit of a purposive interpretation. In these circumstances, this allowed for data protection principles to be given primacy; no public interest question under section 2(2) of FOIA arose.

Robin Hopkins

Right to withdraw children from sex education classes

June 1st, 2012 by Robin Hopkins

Under s. 405 of the Education Act 1996, any parent has the right to withdraw a child from sex education at a maintained school up to the age of 19, except to the extent that the subject is covered in a science lesson that forms part of the national curriculum. On 5 November 2009, the Labour government announced that a proposed new bill, the Children Schools and Families Bill would include a provision that would remove a parent’s right of withdrawal once a child had reached the age of 15 years. The next day, the Family Education Trust made a FOIA request for all correspondence, notes and reports on this issue. This was refused. The proposed legislative change was abandoned when the Coalition government came to power in May 2010. The requester made the same request again, seeking only information created prior to May 2010, i.e. under the last government. The Department for Education again refused, continuing to rely on s. 35(1)(a) of FOIA (formulation or development of government policy). The requester’s appeal to the Tribunal concerned the public interest balancing test only. The appeal in Family Education Trust v IC and Department for Education (EA/2011/0244) was dismissed.

Three points are of interest as regards the public interest in maintaining the exemption for the formulation and development of government policy.

First, the appellant argued that there had been a lack of transparency about this decision. The Tribunal thought this a valid type of argument in general: it could “envisage cases in which public dissatisfaction with the rigour or comprehensiveness of a public consultation may add weight to the public interest in having information disclosed”. This did not, however, have purchase on the facts of this case.

Secondly, what of the fact that the relevant provision had been abandoned during the “wash up” of outstanding legislative business immediately before the May 2010 election? The appellant said this meant no ‘safe space’ was then needed, as policy development on this issue was no longer live (this was raised as a public interest argument, but it seems to me it could equally well be an argument against the engagement of s. 35(1)(a) in the first place). Again, on the facts this point did not have force, as the issue remained live after the election. The Tribunal did, however, add this note of caution:

“It does not follow, from our conclusion on this aspect of the case, that the period during which the “safe space” must be protected will be without limit. Some elements of the public debate on sex and relationship education may be perennially controversial but, in the event of a further information request being made at any time in the future, it will be necessary for the Department to consider the state of policy development at that time.”

Thirdly, the Department also argued that there was a public interest in protecting from disclosure contributions made by those consulted on policy matters in this area. The Tribunal gave this factor less weight, “in that those submitting views with the intention of influencing policy decisions by government should in most cases accept that the consultation process will be conducted in public view. We nevertheless accept that a degree of protection may be required in the context of a particularly contentious issue, such as the right of withdrawal and that, had we been inclined to order to disclosure generally, it might have been appropriate to make special provision for some elements of the consultation process.”

Robin Hopkins