Universal Credit reports

March 31st, 2014 by Rachel Kamm

The Tribunal has ordered disclosure of information about Universal Credit, in three appeals which were heard together: John Slater v ICO and DWP EA/2013/0145; DWP v ICO and John Slater EA/2013/0148; and DWP v ICO and Tony Collins EA/2013/0149. The Tribunal dismissed both of DWP’s appeals and allowed Mr Slater’s appeal (subject to the removal of some names from the information).

The disputed information in Mr Collins’s appeal was a Project Assessment Review of the Universal Credit Programme (UCP), which was prepared by the Cabinet Office’s Major Projects Authority in early November 2011 and requested by Mr Collins on 1 March 2012.

In Mr Slater’s case, the disputed information was the Risk Register, Issues Register and the High Level Milestone Schedule for UCP and he made the request on 14 April 2012. As described by the Tribunal, “All three categories of document are essential risk management and planning tools in any large long – running project. They are designed to identify and reduce uncertainty and to gain uncompromising input from the widest possible spectrum of participants. UCP, on which work began in 2011, is scheduled for completion in 2017” (§22).

In response to both requests, the DWP relied on the exemption in section 36 FOIA, on ground that, in the reasonable opinion of a qualified person (the Minister), disclosure of the information under FOIA would be likely to inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation, or would be likely otherwise to prejudice the effective conduct of public affairs and that the balance of the public interest was in favour of maintaining this exemption.

The ICO found that the qualified exemption in section 36 was engaged, but that the balance of the public interest favoured disclosure of the Project Assessment Review, Issues Register and  High Level Milestone Schedule (but not the Risks Register).

On appeal, the Tribunal agreed with DWP and the ICO that the exemption in section 36 was engaged i.e. it was reasonable for the Minister to conclude that disclosure would be likely to inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation, or would be likely otherwise to prejudice the effective conduct of public affairs. The test was whether there was a realistic possibility, not a 51%+ probability (§49).

Turning to the public interest, the Tribunal attached great importance “not only to the undisputed significance of UCP as a truly fundamental reform but to the criticism and controversy which it was attracting by the time of these requests in March and April, 2012″ (§55). The Tribunal also noted “the unfailing confidence and optimism of a series of press releases” and that UCP was described as on track when milestones had not been achieved on time. It commented that “Where, in the context of a major reform, government announcements are so markedly at odds with current opinion in the relatively informed and serious media, there is a particularly strong public interest in up to date information as to the details of what is happening within the programme, so that the public may judge whether or not opposition and media criticism is well – founded” (§56). It took into account the costs of the programme and the size of the IT interface with local authority systems (§57). Publication of the disputed information upon completion of UCP, “would be a wholly inadequate answer to the demands for transparency” (§58).

On the other hand, the Tribunal acknowledged that the ‘safe space’ requirement can apply in section 36 (as well as section 35) cases (§59). The Tribunal did not take into account evidence which had been given by the Department of Health in a different Tribunal appeal, but which this Tribunal had not seen and which had not been tested in cross examination §61). There was no evidence that disclosure of another risk document, the Starting Gate Review, had inhibited frank discussion (§62). In this context, the need for a degree of deference to the experience of senior public authorities was not as pressing as when tackling questions of security or foreign policy: “The duty of the Tribunal is to consider government evidence on issues such as these carefully, conscious of the experience and expertise of the witness, but using its own knowledge of appeals of this kind, of institutions and behaviour in the workplace to determine whether government information requires the protection claimed, considering the importance of the subject matter to the public. We are not persuaded that disclosure would have a chilling effect in relation to the documents before us“ (§63).

As to diversion of resources if the disputed information was disclosed, the Tribunal commented that ”a programme such as UCP required at the outset a clear public relations strategy and a substantial staff to handle the inevitable flow or even torrent of inquiries and bad news stories which such an important change must attract” and that delivery of UCP may be facilitated by good communication (§64).

Having reached the above general conclusions, the Tribunal considered each of the requested documents in turn. It found that the public interest was in favour of disclosing the information, taking into account in particular that “Ordinary people, properly informed, are capable of grasping why a document dwells on problems rather than successes” and that whilst there may be some prejudice to DWP, the public interest required disclosure. It dismissed DWP’s appeals and allowed Mr Slater’s appeal (subject to the removal of some names from the information), thereby ordering disclosure under FOIA of each of the documents.

Julian Milford represented DWP and Robin Hopkins represented the ICO.

Rachel Kamm, 11KBW




FOIA’s not all that: Kennedy v The Charity Commission [2014] UKSC 20

March 28th, 2014 by Tom Cross


The Supreme Court’s much anticipated judgments in Kennedy v The Charity Commission make for a long read. But they are very important. All the parties in Kennedy were represented by Counsel from 11KBW: Andrew Sharland for Mr Kennedy; Karen Steyn and Rachel Kamm for the Charity Commission and the Secretary of State; Ben Hooper for the ICO; and Christopher Knight for the Media Legal Defence Initiative and Campaign for Freedom of Information.

The factual background is described in previous posts. In short the appeal concerned a FOIA request made by Mr Kennedy, a journalist at The Times, in June 2007, for disclosure of information concerning three inquiries conducted by the Charity Commission between 2003 and 2005 into the ‘Mariam Appeal’, which was launched by Mr George Galloway in connection with the sanctions imposed on Iraq following the first Gulf War. The Charity Commission relied on section 32(2) of FOIA in refusing the request. That provides an absolute exemption from disclosure where information held by a public authority is held only by virtue of being contained in either (a) any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or (b) any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration. The Court of Appeal had held that this exemption applied to a request made in 2007 concerning inquiries which had finished in 2005.

The two primary questions for the Supreme Court were (1) whether the absolute exemption in section 32(2) continued after the end of an inquiry (so that Mr Kennedy was precluded from receiving the information); and (2) if so, what, if any difference Mr Kennedy’s rights under article 10 of the European Convention on Human Rights (the “ECHR”) made to that result. In the result the Court’s discussion ranged more widely than may have been anticipated.

The majority of the Court agreed with the judgments of Lord Mance and Lord Toulson. (Lord Sumption gave a separate, concurring, judgment). The majority decided as follows.

(1) Section 32(2) continues to apply after the end of an inquiry

The Court held that the absolute exemption in section 32(2) FOIA does last beyond the end of an inquiry until the relevant information is destroyed or for up to 30 (or in future 20) years under the Public Records Act 1958. There were two principal reasons. First, that construction was supported by the words of the section themselves read as a whole. The words “for the purposes of the inquiry or arbitration” qualified the immediately preceding words in 32(2)(a) and (32)(2)(b) and referred to the original purpose for which the relevant documents were placed in the custody of, or were created by, a person conducting an inquiry. Secondly, the Court considered that its interpretation sat comfortably within FOIA as a whole.  Under section 62(1) FOIA, a record becomes a “historical record” at the end of 30 years, and, under section 63(1), information contained in a historical record cannot be exempt information because of section 32. Lords Mance and Toulson considered that, in that context, information falling within section 32 would continue to be exempt for 30 years instead of ceasing to be exempt at the end of an inquiry. That meant that, absent Mr Kennedy’s being able to demonstrate that Article 10 required a different result, he would not be entitled to the information he sought under FOIA itself.

(2) Article 10 ECHR did not lead to a different construction of section 32(2)

Mr Kennedy argued that if (as the Court held, above) he was not entitled to the information because of s.32(2), section 32(2) was incompatible with his rights under Article 10 ECHR, and that it should be ‘read down’ under the HRA (at the very least so as to mean that s.32(2) ceased to be an absolute exemption after the end of an inquiry).

There were two bases on which the Court decided that Article 10 did not, however, assist him.

The first was that there was no basis for concluding that section 32(2) was inconsistent with Article 10 in circumstances where s.32(2) put him in no less favourable a position than he was otherwise in under general statute and common law to access the information. That was because FOIA is not the only means through which information can be accessed. What section 32(2) of FOIA does is to take information falling within the absolute exemption outside the scope of that particular disclosure regime; but this does not mean that the information subject to the exemption could not otherwise be required to be disclosed by law.  Other statute, or the common law, might require disclosure, even though FOIA did not. According to the majority it could not be said that section 32(2) of FOIA was incompatible with the ECHR in those circumstances.

This is, plainly, a point of wider significance. It may be that the extent to which Article 10 may lack application because of the existence of equivalent rights of access under other statute or common law is likely to depend on the circumstances.

Both Lord Mance and Lord Toulson discussed rights of access to information in the specific context of Mr Kennedy’s request. In Lord Mance’s opinion, the Charity Commission had the power to disclose information to the public concerning inquiries on which it has published reports, both in pursuit of its statutory objective under the Charities Act 1993 (since replaced with the Charities Act 2011) of increasing public trust in, and the accountability of, charities, and under general common law duties of openness and transparency on public authorities. Lord Toulson placed greater emphasis on the fundamental principle of open justice forming part of the common law:

‘It has long been recognised that judicial processes should be open to public scrutiny unless and to the extent that there are valid countervailing reasons. This is the open justice principle. The reasons for it have been stated on many occasions. Letting in the light is the best way of keeping those responsible for exercising the judicial power of the state up to the mark and for maintaining public confidence’ (paragraph 110)

The exercise of the power of disclosure pursuant to the open justice principle would be subject to judicial review. Lord Mance considered that the courts should apply a high standard of review to any decision not to disclose information in answer to questions of real public interest raised by a journalist in relation to inquiries on which the Charity Commission has published reports (see e.g. paragraph 56).

The second reason why Mr Kennedy was not assisted by Article 10 according to the majority was that article 10 was not engaged because it does not impose a freestanding positive general duty of disclosure on public authorities. There is a particularly detailed discussion of the recent developments in the case law of the European Court of Human Rights in the judgment of Lord Mance at paragraphs 57-100, which starts with the statement that the jurisprudence ‘is neither clear nor easy to reconcile’. Technically, the discussion is obiter, because, on the majority’s approach, it was unnecessary to decide the point for the resolution of the appeal. But it will remain, on the present state of the Strasbourg case law, difficult or impossible for requesters to rely on Article 10 as a means of arguing for a more favourable construction of FOIA.

Mr Kennedy’s appeal was, accordingly dismissed. His request under FOIA was properly refused in reliance on s.32(2) and Article 10 did not assist him.

Lord Wilson and Lord Carnwath, dissenting, would have allowed the appeal on the basis that Article 10 was engaged by Mr Kennedy’s FOIA request and should have led to s.32(2) being read down such that the absolute exemption expired at the end of the relevant inquiry.

My own view is that the greatest significance of Kennedy is its highlighting of the fact that FOIA is only one means of obtaining information from public authorities. If a different statutory or common law basis may be found for invoking a right in particular circumstances, a judicial review application may also be available. Whether that is a wise route for requesters to pursue, including given the costs implications of that form of litigation which do not apply in the same way in the tribunal, is a different question, but it is one to which fresh consideration might now be given in appropriate cases.


Stop Press: Supreme Court to Hand Down Kennedy Judgment on Weds 26 March 2014

March 20th, 2014 by Christopher Knight

The Supreme Court has announced on its website that it will hand down judgment in the long-running saga of Kennedy v Charity Commission on Wednesday 26 March 2014. The judgment is expected to address the construction of section 32 FOIA and the extent to which Article 10 ECHR can be used to found a right of access to information. The judgment hand-down will be at 9.45 and can be watched live through the Supreme Court’s website.

Christopher Knight

Government security classifications to change on 2 April 2014

March 19th, 2014 by Tom Ogg

The government currently uses a scheme of ‘protective markings’ to classify the sensitivity of the information and documents it holds.  The protective markings are, in ascending order of security, protect; restricted; confidential; secret; top secret.  For further information see the HMG Security Policy Framework.

As of 2 April 2014 protective markings will be abolished and replaced by ‘security classifications’.  Those security classifications will be ‘official’, ‘secret’, and ‘top secret’.

For further information see the document Government Security Classifications and accompanying guidance.

Thomas Ogg

The Not Entirely Secret Diary of Mr Lansley

March 18th, 2014 by Timothy Pitt-Payne QC

 What considerations are relevant when deciding whether a Ministerial diary should be disclosed under FOIA?  The decision of the First-tier Tribunal in Department of Health v Information Commissioner EA/2013/0087 is, perhaps surprisingly, the first Tribunal decision to address this issue.  The judgment engages with a number of difficult issues:  the Tribunal’s approach to Government evidence, the value of cross-examination in Tribunal hearings, aggregation of public interests under FOIA, and Parliamentary privilege.  Hence it is of general importance, going beyond the intrinsic interest of its specific subject matter.

The request was for the Ministerial diary of the Rt Hon Andrew Lansley MP for the period 12th May 2010 to 30th April 2011, during which he was Secretary of State for Health.  During this period, the Minister’s primary focus was the Department’s NHS reform programme.  The requester was a journalist dealing with health issues.  After the Department refused the request, and maintained its refusal on internal review, the requester complained to the Information Commissioner.  In the course of the Commissioner’s investigation the Department disclosed a heavily redacted version of the diary.

The Commissioner ordered the Department to disclose the whole diary, with very limited redactions.  On the Department’s appeal, the First-tier Tribunal upheld the Commissioner’s decision, with minor modifications reflecting points that were conceded by the Commissioner before the Tribunal.

The material before the Tribunal included witness statements from Sir Alex Allan and Paul Macnaught in support of the Department’s case.  Sir Alex is a distinguished former civil servant, currently the Prime Minister’s Independent Adviser on Ministerial Interests.  Mr. Macnaught is the Director of Assurance at the Department.  The Commissioner had initially accepted that the hearing should take place without oral evidence, but on the Tribunal’s request Sir Alex and Mr. Macnaught attended the hearing and were questioned.

At the start of its decision, the Tribunal considered whether the entire contents of the diary were “held” by the Department, within the meaning of FOIA section 3(2).  In this context it focused on the entries that related to non-Ministerial activities such as constituency work.  The Department accepted that these entries were held by the Department when they were first made, but contended that by the time of the request the Department was merely providing electronic storage for this information.  The Tribunal rejected this.  There was no evidence of the Minister asking the Department to store this information; and even after the engagements had been fulfilled the information remained of potential value to the Department, e.g. if there was a need to check where the Minister had been at a particular time.  The whole of the diary, therefore, was held by the Department and potentially disclosable under FOIA.

As to the personal data exemption (section 40(2)), there was little controversy except in relation to meetings between the Minister and constituency MPs acting as elected representatives.  The Commissioner considered that the identity of the MPs should be disclosed; the Department did not concede this; and the Tribunal agreed with the Commissioner.

In relation to the national security exemption (ss 23(5) and 24(2)) there was no dispute between the Commissioner and the Department as to the information that ought to be withheld.  The Tribunal considered that it would be sterile to address the areas of disagreement as to the precise application of these two exemptions.

The main area of controversy was the application of the exemptions in s 35(1)(a) (formulation or development of Government policy), s 35(1)(b)  (Ministerial communciations), and s 35(1)(d) (operation of a Ministerial private office).  By the time the Tribunal came to make its decision, the Commissioner accepted that these exemptions were applicable where claimed by the Department: so the issue was whether the public interest in maintaining the exemptions outweighed the public interest in disclosure.

At the start of its consideration of the public interest test, the Tribunal addressed a number of general issues.

It began by considering the value of oral evidence.  The Tribunal referred to what was said about cross-examination by the Upper Tribunal in APPGER v IC and FCO [2013] UKUT 560 (AAC).  It interpreted the Upper Tribunal’s remarks as highlighting the need to consider whether cross-examination was necessary in the particular case, but not as ruling it out.  The Tribunal considered that oral evidence and cross-examination could often be of great assistance; in particular it affirmed the value of testing the public authority’s evidence in this way where cases involved a difficult judgment on the balance of public interest.  Cross-examination could be especially important where there was closed evidence.

Next, the Tribunal considered the extent to which deference should be given to Government evidence, and the relevance (if any) of the case law about public interest immunity (PII) when applying the public interest test under FOIA.  The Tribunal rejected the contention that FOIA cases and PII cases should in all respects be approached in the same way.  The remarks in the APPGER case about the relevance of PII were intended to emphasise the need, in both PII and FOIA cases, properly to identify the factors for and against disclosure; they were not meant to assimilate FOIA and PII in all respects.  The Tribunal accepted that proper weight should be given to the expertise of Government witnesses; but, if “deference” meant that their evidence should be accepted unless it lacked any rational basis or was given in bad faith, then the Tribunal rejected the suggestion that it should show deference to that evidence.  Broadly speaking, the Tribunal accepted that the Government’s expertise would carry greater weight in relation to state security or international relations than in s 35 cases, but this was not a hard and fast distinction.

When it came to striking the public interest balance, the Tribunal emphasised the need to identify the particular benefits and detriments, and their likelihood, on each side of the equation.  At the same time, the Tribunal recognised the assumption underlying FOIA, that there is a general public interest in the transparency of public authorities; in many cases it would only be possible for the benefits of disclosure to be identified at a high and generic level.  It indicated that the inclusion (e.g. in skeleton arguments) of a table summarising the various factors and their significance could often be of assistance.

The discussion of aggregation is particularly interesting.  Since the decision of the European Court in the Ofcom case, Tribunals in EIR cases have been required to look at exemptions on an aggregated basis, considering the overall public interest balance for and against disclosure; there is as yet no definitive judgment as to whether the same approach applies under FOIA.  Here, the Tribunal took a middle position between the submissions made for the Department and the Commissioner.  It accepted (contrary to the Commissioner’s position) that aggregation applied under FOIA.  But it took a more limited view of aggregation than did the Department:  properly understood, Ofcom supported aggregation in EIR cases only where there was an overlap between the interests served by the different exemptions, and the same approach should be applied under FOIA.

In relation to Parliamentary materials, the Department had relied upon parts of chapter 6 of the House of Commons Justice Committee report:  Post-legislative scrutiny of the Freedom of Information Act 2000 (3rd July 2012).  The Tribunal considered whether it was proper to take this material into account, having regard to Parliamentary privilege.  It discussed the decision of Stanley Burnton J in the OGC case, and the less restrictive approach to the use of Parliamentary materials adopted in the R (Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin):  the Tribunal decided to follow the Age (UK) case.  The Tribunal took into account the material relied upon by the Department, and found it helpful by way of background, but stated that it would be inappropriate to rely on any particular view expressed to or by the Parliamentary Committee.

The Tribunal then carried out the public interest balance in relation to the disputed information (i.e. the relevant Ministerial diary).  In respect of both the interests favouring disclosure and the interests in maintaining the section 35 exemptions, the Tribunal summarised its conclusions in a table, setting out the factors taken into account and the impact of disclosure on those factors.  For instance, in terms of the interests served by disclosure, it considered that there would be a “positive” impact in relation to “accountability:  whether the public was getting good value from the Minister and whether he was properly carrying out his functions”.  In terms of the adverse impacts of disclosure, it considered that a “modest additional burden” was likely by reason that “potentially misleading information would need to be explained”.  A number of factors for and against disclosure were listed and assessed in a similar way.

In order to reach the conclusions set out in tabulated form, the Tribunal conducted a detailed assessment of the evidence given.  It was critical of some of the evidence given by the Department’s witnesses, and was careful to explain why despite their expertise it was departing from that evidence in some regards: this is the practical application of the Tribunal’s discussion of deference, earlier in the decision.  For instance, in relation to the public interest in favour of disclosure, the Department’s evidence was that this interest was substantially met by the publication of quarterly information releases about ministerial activity.  The Tribunal was critical of this part of the evidence for giving insufficient weight to the fact that the information releases (unlike the diary) did not cover meetings by video conference or telephone.  In relation to the public interests for maintaining the exemption, the Tribunal considered that some of the Department’s evidence was unrealistic:  for instance, it did not accept that the prospect of disclosure of their diaries would encourage Ministers to arrange unnecessary meetings as window dressing in order to deflect potential public criticism.  The overall effect of these criticisms, according to the Tribunal, was to reduce their confidence in the objectivity of the evidence and the accuracy and soundness of the witnesses’ evaluative judgments.

Overall, the Tribunal’s assessment was that the factors in favour of disclosure outweighed those in favour of maintaining the exemptions, but not by a particularly large margin.  With limited exceptions – reflecting concessions made by the Commissioner at the hearing – it upheld the Commissioner’s decision in favour of disclosure.

Apart from the interest of its specific subject-matter, the case is of general importance in relation to the Tribunal’s approach to the public interest test, especially under section 35.  It both exemplifies and defends the Tribunal’s established approach:  i.e. the Tribunal will consider Government evidence carefully; witnesses will be cross-examined on their assessment of the factors for and against disclosure; the Tribunal will take account of witness expertise, but will ultimately form its own view; and the Tribunal will reject Government evidence where it thinks it appropriate to do so, notwithstanding the absence of witness evidence taking a contrary view.  The central question on any appeal will be whether this approach requires modification.

Timothy Pitt-Payne QC

Prince Charles, the Guardian and the Unreasonable Veto

March 18th, 2014 by Christopher Knight

As promised last week, this post contains a slightly fuller account of the Court of Appeal’s judgment in R (Evans) v HM Attorney General [2014] EWCA Civ 254. The history of the case is manifold and has been covered on this blog innumerable times (see: here, here and here). In essence, the Upper Tribunal held in a very lengthy judgment that some of the correspondence written by Prince Charles to various governmental departments ought to be disclosed in the public interest. The Attorney General then issued his statement of reasons under section 53 FOIA, which has the effect of vetoing the judicial decision. On any view, the veto is a highly unusual provision. The Divisional Court dismissed the judicial review of that veto. Mr Evans, a Guardian journalist, appealed.

The Court of Appeal allowed the appeal, with Lord Dyson MR delivering the leading judgment. It accepted that two persons may each have different but reasonable views of an answer to a question such as the balance of public interests. But where one of those bodies was an independent and impartial tribunal or court which had conducted a full examination of the issues, for the AG to have “reasonable grounds” to take a different view (as section 53(2) requires) he must be able to show that the tribunal had demonstrably erred in law or fact, or that there had been a material change of circumstances. Neither of those applied in this case: at [37]-[39]. The statement of reasons was accordingly unlawful. The Court applied an analogy from cases taking this approach in the planning and immigration context.

The Court’s view certainly exercises a control over the veto. The two examples it gives for a veto role are apparently intended to be narrow ones. A demonstrable error seems to permit a veto only where an appeal would clearly be successful. A material change in circumstances seems a particularly difficult category to apply where the long-standing principle of FOIA is that the public interest is adjudged as at the time of the request. The Court of Appeal did, however, grant permission to appeal to the Supreme Court, so this judgment will not be the last word on the matter.

Some of the information requested, although it is not publicly known how much, was environmental information under the EIR. The Court of Appeal agreed with Mr Evans that the right to an effective remedy under the Directive and the European Charter precluded the use of a veto of a final and binding court decision. Judicial review was not an adequate remedy in this sense because it was directed at the veto, and not the underlying decision to refuse the request for information: at [55]. A veto meant that the court or tribunal decision was not final or binding, because a judicial review may not be bought or it might fail on procedural grounds, and in any event would not bind the original refusing department because it would not be a party to the veto proceedings: at [56]. Moreover, a veto also meant that there was not an effective remedy before a court which was Article 6 ECHR compliant, in the sense that the principle of legal certainty and finality of judgments was undermined, and that there was an inequality of arms because a requestor cannot veto a tribunal decision which rules against him: at [57]-[66].

The Court held that the entirety of the statement of reasons had to be quashed on this basis too because the AG had not carried his own public interest balancing exercise which reflected the greater public interest in disclosing the non-EIR material once the EIR material had been disclosed.

Lord Dyson MR did not feel it necessary to decide whether Wednesbury review was sufficiently flexible to comply with the standard required by the Directive (in particular, whether Sullivan LJ had been right in Birkett v DEFRA [2011] EWCA Civ 1606 at [23] to suggest a de novo hearing was required) given his reasoning more generally, but suggested that had it been necessary to decide the point he would have had to make a reference to the CJEU: at [73].

Evans has contributed a large amount to information law jurisprudence, and with an appeal to the Supreme Court to come, it is the gift that keeps on giving…

Christopher Knight

Stop Press: FOIA Veto Quashed

March 12th, 2014 by Christopher Knight

The Court of Appeal has today handed down a unanimous judgment in R (Evans) v HM Attorney General [2014] EWCA Civ 254 overturning the Divisional Court and quashing the veto issued by the Attorney General. The veto was quashed both because the AG did not have reasonable grounds to issue it in the light of the Upper Tribunal judgment, and because it was incompatible with EU law to veto disclosure of information under the EIR.

A fuller summary and discussion will follow in due course, but the first JR of a section 53 veto has been successful on appeal. The Court of Appeal has granted permission to appeal to the Supreme Court.

Jonathan Swift QC and Julian Milford appeared for the AG; Timothy Pitt-Payne QC appeared for the ICO.

Now with added link to judgment: here.

What’s in a name? – Court of Appeal gives judgment in Edem

February 7th, 2014 by Anya Proops

Deciding whether information which arguably relates to an individual amounts to their ‘personal data’ for the purposes of s. 1(1) of the Data Protection Act 1998 is one of the more challenging aspects of the DPA regime. In making the judgment call in any particular case, data controllers have routinely looked to the guidance set out Auld LJ’s judgment in the well known case of Durant v Financial Services Act [2003] EWCA Civ 1746, [2011] 1 Info LR 1. In his judgment, Auld LJ indicated that there were two ‘notions’ likely to be of assistance when it came to determining whether particular data was sufficiently ‘personal’ that if tell within the scope of the DPA:

‘The first is whether the information is biographical in a significant sense, that is, going beyond the recording of the putative data subject’s involvement in a matter or an event that has no personal connotations, a life event in respect of which his privacy could not be said to be compromised.  The second is one of focus.  The information should have the putative data subject as its focus rather than some other person with whom he may have been involved or some transaction or event in which he may have figured or have had an interest, for example, as in this case, an investigation into some other person’s or body’s conduct that he may have instigated.  In short, it is information that affects his privacy, whether in his personal or family life, business or professional capacity.’ (§28)

Auld LJ’s conclusion that the information must be something which affects the data subject’s privacy is of course unsurprising. As is made clear by the recitals to Directive 95/46/EC (from which the DPA is derived), the core aim of the Directive is to protect our fundamental right to privacy in the context of the management of our data. If particular data does not meaningfully touch on our privacy, then in a sense why should it fall within the ambit of the legislation at all?

So what then is the position in respect of data which records a person’s name? Is that information automatically ‘personal data’ because it is a name which both in a sense identifies and relates to a particular individual? Or does that data have to arise in some form of context whereby it tells you something informative about that individual beyond merely what their name is? This was precisely the issue which the Court of Appeal had to consider in the recent case of Edem v IC & Financial Services Authority [2014] EWCA Civ 92.

In Edem, Mr Edem had made a number of complaints to the FSA concerning its regulation of a particular company. Mr Edem then sought disclosure from the FSA of information about him and his complaints. The sole issue which the Court of Appeal had to consider was whether information amounting to the names of three individuals within the FSA who had worked on the complaints constituted their ‘personal data’ under s. 1(1) DPA. The individuals in question were all junior employees who did not have public facing roles.

The Court of Appeal came down firmly in favour of the conclusion that the names per se constituted ‘personal data’. Moses LJ, with whom Beaton LJ and Underhill LJ agreed, held that:

‘A name is personal data unless it is so common that without further information, such as its use in a work context, a person would remain unidentifiable despite its disclosure’ (§20).

The Court of Appeal sought to reconcile this conclusion with the approach adopted by the Court of Appeal in Durant by saying that the Court of Appeal in Durant was looking at a different issue, namely whether information which did not on its face concern or name Mr Durant was still his personal data because it related to a complaint which he had made to the FSA (§§18-20). The Court went on to find that the ‘notions’ identified by Auld LJ in §28 of his judgment in Durant were of no relevance to a case where what was in issue was information comprising a person’s name, as that information was always intrinsically ‘personal data’, unless it was such a common name that considered on its own it had to be regarded as being effectively anonymous.

Importantly, the Court of Appeal went on to cite with approval the following extract from the Commissioner’s Technical Guidance on the definition of personal data:

“6.         It is important to remember that it is not always necessary to consider ‘biographical significance’ to determine whether data is personal data.  In many cases data may be personal data simply because its content is such that it is ‘obviously about’ an individual.  Alternatively, data may be personal data because it is clearly ‘linked to’ an individual because it is about his activities and is processed for the purpose of determining or influencing the way in which that person is treated.  You need to consider ‘biographical significance’ only where information is not ‘obviously about’ an individual or clearly ‘linked to’ him.”

The judgment is important for a number of reasons. First, it suggests that the Durant guidance must not be treated as embodying golden rules of universal application. This is likely to trouble many data controllers who have in the past approached Durant as it if had biblical authority. Second, it marks a clear judicial endorsement of the fairly generous approach to the construction of the term ‘personal data’ embodied in the ICO’s guidance. What remains to be seen is how the judgment will be held to apply to cases which do not involve such patently identifying information.

Robin Hopkins represented the ICO. Jason Coppel QC represented the Financial Conduct Authority.

Anya Proops

2014: The Year of the Veto?

January 31st, 2014 by Christopher Knight

After a very slow start to the use of the veto under section 53 FOIA, the Coalition Government has rather picked up speed on its use following a flurry in 2012. In one year there were vetoes for the NHS Transitional Risk Register, Iraq war Cabinet minutes, and of course, the correspondence of the Prince of Wales. The last of these is the subject of the first judicial review of a veto decision.

On 30 January 2014 the Secretary of State for Transport announced that he was vetoing the order of the Information Commissioner in decision notice FER0467548 that the Cabinet Office (to whom the request was made) disclose the Project Assessment Review (“PAR”) report concerning High Speed Two (“HS2″), the project for a high-speed rail link between London, Birmingham, the East Midlands, Sheffield, Leeds and Manchester.

In accordance with the legislation, the Secretary of State has published an eleven page Statement of Reasons. They are detailed and specific, and will not be set out in this post. Readers who are interested can see them here. The Secretary of State doubted whether the PAR was environmental information at all, but exercised the veto under both FOIA and the EIR. The ability to do the latter is of course an aspect of the forthcoming appeal in R (Evans) v HM Attorney General (on which see Robin’s analysis here, and my own comment at (2013) 38 LQR 130). The Secretary of State considered that the balance of the public interest favoured non-disclosure. He then gave three reasons for his exceptional use of the veto power: “(1) The exceptional importance of the HS2 project; (2) The extremely strong public interest in ensuring that public expenditure for HS2 is properly and robustly overseen and controlled; (3) The short timeframe between the production of the PAR report and the request for information, and the timing of the request at this particular stage of policy development within the HS2 project.

The background to the veto decision is short but messy. It is unusual for the veto to be used before the Tribunal have considered the Government’s arguments. In the HS2 case, the Cabinet Office withdrew its appeal against the decision notice the day before the hearing, when the Daily Mail published a leaked letter from the Secretary of State and the Minister for Cabinet Office to the Prime Minister referring to negative legal advice the Department had received. That letter suggested the early use of the veto instead, and that is indeed what has occurred.

It will be interesting to see whether, having acquired a taste for it, 2014 proves to be as profitable as 2012 was for veto fans.

11KBW’s Julian Milford was acting for the Secretary of State & the Cabinet Office; Robin Hopkins was acting for the ICO.

Christopher Knight

Freedom of Information: But What is Information? The Upper Tribunal Opines

January 28th, 2014 by Christopher Knight

We all know that section 1 gives us a right to request information from listed public authorities, but what does “information” mean? Information is defined by section 84 of FOIA (“‘information’ (subject to sections 51(8) and 75(2)) means information recorded in any form”). This somewhat opaque definition has generally been treated as meaning that a request is for information. It is not for copies of documents. If the public authority wants to type out the document in a different format, they can, so long as the information contained within that document is provided.

The question had to be confronted squarely by the Upper Tribunal in Independent Parliamentary Standards Authority v IC & Leapman [2014] UKUT 33 (AAC) (IPSA v IC_UT decision_Jan 2014). Mr Leapman had made a request to IPSA for receipts and invoices provided by particular MPs in support of their expenses claims. IPSA provided him with transcribed versions of those receipts and invoices. Mr Leapman was not satisfied; he wanted the originals. The ICO agreed. On appeal, so did the First-tier Tribunal (on which see Tom Ogg’s blog here). IPSA appealed to the Upper Tribunal.

Judge Williams dismissed the appeal. He accepted that a receipt will typically have “visual content to be seen, rather than read, but which may also require to be understood for the recipient to have appreciated the whole of the experience” (at [22]). (One leaves aside the suggestion that reading a receipt can be so heady as to warrant the term ‘experience’.) He set out the reasoning of the DN in detail and agreed with it. He relied on the example of trademarks, noting that “I cannot see how full information about a receipt or invoice that contains trademarks can be conveyed if the trademark material is not reproduced in the trademarked form so confirming that unique identity” (at [26]). Judge Williams declined to accept the suggestion that no information is conveyed by location of markings or handwriting: at [27]. In short, there was no error of law in refusing to accept the blanket submission of IPSA that nothing but the words mattered.

There was then a secondary issue concerning section 11(2), and whether it was reasonably practicable for IPSA to provide the original receipts. This too had been rejected by the FTT, and Judge Williams took the same view. In his view, section 11 was request specific, seeing as it directly cross-referred to the subsequent provisions which were also request specific. There was no basis for a “general limit on the duty” to comply with section 1: at [40]. IPSA was not entitled to any special status: at [42].

The Upper Tribunal’s judgment is perhaps counter-intuitive at first sight, but on analysis becomes difficult to dispute. It must be the case that some documents reveal recorded information simply by the way in which they are laid out, or the surrounding markings on the page. What if an MP has submitted faked receipts which IPSA have overlooked, but which on sight of the originals show the relevant logo or trademark to be slightly wrong thus revealing the deception? What if it is said that a document was purely private, but the original reveals it to have been printed on Council notepaper? That is surely what FOIA is for. However, the matter will be case-specific. This is not a disclosure exercise by the back-door – there will need to actually be something to see from the originals.

11KBW’s Robin Hopkins (who else?) appeared for the ICO.

Christopher Knight