The First-Tier Tribunal has today handed down two important decisions in appeals concerning requests for disclosure of information relating to the Government’s controversial policy to radically overhaul the NHS: Department of Health v IC & John Healey MP (EA/2011/0287) and Department of Health v IC & Cecil (EA/2011/0286). Healey concerned a request for disclosure of a ‘transition risk register’ (TRR), essentially a set of risk assessments relating to the transition from the NHS as it was in 2010 to the NHS as it is proposed it should be once the reforms set out in the July 2010 White Paper have been implemented. Cecil concerned a request for disclosure of the ‘strategic risk register’ (SRR). The SRR contains the risk assessments for the NHS as a whole on a strategic and ongoing basis. In both cases, the DOH refused disclosure on the ground that disclosure of the registers would have a ‘chilling effect’ on the development of government policy and, accordingly, were exempt from disclosure under s. 35(1)(a) FOI (a.k.a. ‘the safe space’ exemption). The IC found that, whilst s. 35(1)(a) was engaged in respect of the registers, the public interest balance tipped in favour of their disclosure. Interestingly, the Tribunal dismissed the DOH’s appeal in respect of the TPRR but allowed it in respect of the SRR. The written reasons, which have yet to be promulgated, are no doubt going to make for interesting reading; so watch this space.

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’.

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 – click here

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.

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).

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.