Open justice and freedom of information – Court of Appeal judgment in Browning

July 30th, 2014 by Anya Proops

Last month I penned a post on the issue of how the principle of natural justice can be reconciled with the use of closed procedures in FOIA appeals. The post was written against the backdrop of the Court of Appeal hearing of the appeal in the Browning case. Today the Court of Appeal has handed down its judgment. Mr Browning’s appeal was dismissed.

Before looking at the conclusions reached by the Court, it is important to understand the facts of the Browning case. Mr Browning is a highly regarded journalist. He sought access to information held by DBIS in connection with the application of the export licensing regime, particularly insofar as it had been applied to applications made by third party businesses for licences to export to Iran. The request was refused on an application of ss. 41 and 43 FOIA. The ICO upheld Mr Browning’s complaint about the refusal. However, on appeal to the FTT, and having considered further relevant evidence adduced for the purposes of that appeal, the ICO decided that it would switch sides and support DBIS’s case on appeal. As many operating within the FOIA field will know, it is not uncommon for the ICO to adapt his position in this way.

So far as the hearing itself was concerned, the FTT conducted part of the appeal on a closed basis. This meant that not only the public but also Mr Browning and his legal representative were excluded from part of the hearing. The FTT of course has express power to conduct FOIA appeals in this manner pursuant to rr. 35 and 5 of the FTT Rules. However, Mr Browning was not content with this arrangement and, whilst he did not apply to participate in the closed hearing himself, he did apply for permission for his counsel to participate. The application was made on the basis that Mr Browning’s counsel would give undertakings to the FTT not to reveal any closed material or evidence without the FTT’s permission. The application was made on the basis that this was the minimum derogation from the natural justice principle which should be tolerated by the tribunal.

Notably, the FTT does have power under r. 14(4) of the FTT Rules to permit such an arrangement. However, the FTT in Browning decided that the application should be refused. The FTT went on to hear evidence in closed session from a number of individuals in their capacity as representatives of businesses which had applied for licences permitting them to export to Iran.

It would appear that after the hearing went back into open session, the FTT explained in some detail the nature of the evidence given by the witnesses in closed session (“the substantive evidence”). However, the identity of the witnesses and information revealing the identity of the businesses they represented (“the identifying information”) was withheld. This was on the basis that the disclosure of such information would itself be highly damaging to the relevant businesses.

Of course, whilst in one sense Mr Browning’s position as a party could not be said to have been unduly prejudiced by the convening of the closed session, particularly because he was given a detailed account of the substantive evidence, in another sense, the prejudice was substantial: by being denied access to the closed session, neither Mr Browning nor his counsel had been able to challenge the evidence given by the witnesses through the process of cross-examination. Mr Browning’s concerns about this inability to cross-examine witnesses would appear to have been amplified in the present case because, in contrast with other appeals, where the ICO is effectively supporting the position adopted the applicant, in this case the ICO was supporting the position of DBIS. At the very least this caused Mr Browning to question whether the ICO would be as assiduous in testing the evidence in closed session as he would have been had he been supporting Mr Browning’s position.  See further my earlier post on the general concerns which surround the use of closed procedures in FOIA appeals.

The FTT ultimately decided the appeal in DBIS’s favour. It is clear from the judgment that the evidence given in closed session played a determinative role in this context.

Mr Browning went on to appeal the FTT’s decision to refuse his application for counsel-only access to the UT. He lost before the UT. He then appealed the UT’s judgment to the Court of Appeal. The appeal was put on the basis of the following relatively narrow ground:

-        the Tribunals Courts and Enforcement Act 2007 provides for a power to make rules to govern the procedures of the tribunal. However, pursuant to s. 22(4), that rule-making power must be exercised so as to ensure: (a) that ‘justice is done’ and (b) that the ‘tribunal system is accessible and fair’;

-        the FTT rules, as applied in the FOIA context, are ultra vires s. 22(4). This is because endowing the FTT with a power to conduct closed procedures in the absence of the applicant’s representative (as to which see rules 35 and 5) produces the result that, in cases where representatives are excluded, justice is not done and the tribunal system is not accessible and fair.

Thus, the appeal was advanced solely on the issue of the vires of the rules. It was not argued on the ground that the FTT’s decision had been perverse on the facts of the case before it.

The Court of Appeal dismissed the appeal. Marice Kay LJ, who gave the leading judgment, held in short that the rules were on their face intra vires s. 22(4) and, further, that application of the principle of natural justice did not require a different result. In reaching this conclusion, the Court noted in particular relevant jurisprudence concerning the serious practical difficulties attendant on permitting counsel-only access in the context of closed procedures, including not least the House of Lords’ judgment in Somerville v Scottish Ministers [2007] 1 WLR 2734. The key paragraph of Marice Kay LJ’s judgment is paragraph 35:

‘35. The crucial task is to devise an approach, in the context of a specific case, which best reconciles the divergent interests of the various parties. In my judgment, the approach adopted in this case and originating in the [British Union for the Abolition of Vivisection v ICO and Newcastle University EA 2010/0064] case does precisely that, having regard to the unique features of appeals under FOIA where issues of third party confidentiality and damage to third party interests loom large. The features to which reference was made in the BUAV case – the expertise of the Tribunal, the role of the IC as guardian of FOIA etc – make it permissible to exclude both an appellant and his legal representative except in circumstances where the FTT

“cannot carry out its investigatory function of considering and testing the closed material and give appropriate reasons for its decision on a sufficiently informed basis and so fairly and effectively in the given case having regard to the competing rights and interests involved. ”

In associating myself with this formulation I am accepting that there are features surrounding a case such as this which merit the description of the procedure as being at least in part investigatory as opposed to adversarial.’ 

The net effect of the judgment is that counsel-only access can potentially be contemplated by the tribunal but only in those exceptional cases where the tribunal concludes that the lack of counsel’s participation means that the tribunal cannot do justice to the case.

It is at this point important to note that the case in Browning was mounted exclusively on the basis that Mr Browning’s counsel should be permitted access to the closed session. There was no suggestion that this was a case where use of a special advocate would be apt, although it is understood that the use of special advocates was discussed before the Court of Appeal. This is important because in many senses the special advocate system avoids the acute practical difficulties which go hand in hand with the use of counsel-only access. Moreover, the fact that certain cases may warrant use of a special advocate was specifically confirmed by the FTT in BUAV.

One suspects that, in view of the concerns expressed by the Court of Appeal in Browning on the subject of counsel-only access, the debate around achieving natural justice in the context of FOIA appeals will now start to focus more heavily on the use of special advocates. Of course the use of special advocates is costly, as was noted in BUAV. This will often mean that their deployment is disproportionate. However, there will nonetheless be cases where the importance of the issues at stake in the appeal and the lack of access to substantive evidence given in closed session create a powerful if not overwhelming imperative in favour of adopting the special advocate procedure. It will be interesting to see whether this is an argument which surfaces before the FTT in the near future.

11KBW’s Ben Hooper acted for the Information Commissioner before the Court of Appeal.

Anya Proops

Personal Data in the CJEU

July 18th, 2014 by Christopher Knight

Working out what is and what is not personal data is often difficult, and all the more so where a document is contains different sections or has mixed purposes. In Cases C‑141/12 and C‑372/12 YS v Minister voor Immigratie, Integratie en Asiel (judgment of 17 July 2014, nyr), a request had been made by an immigrant in Holland for a copy of an administrative report concerning his application for a residence permit. It is helpful to set out the details of the document sought. A case officer drafts a document in which he explains the reasons for his draft decision (“the Minute”). The Minute is part of the preparatory process within that service but not of the final decision, even though some points mentioned in it may reappear in the statement of reasons of that decision.

Generally, the Minute contains the following information: name, telephone and office number of the case officer responsible for preparing the decision; boxes for the initials and names of revisers; data relating to the applicant, such as name, date of birth, nationality, gender, ethnicity, religion and language; details of the procedural history; details of the statements made by the applicant and the documents submitted; the legal provisions which are applicable; and, finally, an assessment of the foregoing information in the light of the applicable legal provisions. This assessment is referred to as the ‘legal analysis’. Depending on the case, the legal analysis may be more or less extensive, varying from a few sentences to several pages. In an in-depth analysis, the case officer responsible for the preparation of the decision addresses, inter alia, the credibility of the statements made and explains why he considers an applicant eligible or not for a residence permit. A summary analysis may merely refer to the application of a particular policy line.

Was the Minute personal data within the meaning Article 2(a) of Directive 95/46/EC? There is no doubt, said the CJEU, that the data relating to the applicant for a residence permit and contained in a minute, such as the applicant’s name, date of birth, nationality, gender, ethnicity, religion and language, are information relating to that natural person, who is identified in that minute in particular by his name, and must consequently be considered to be ‘personal data’: at [38].

However, the legal analysis in the Minute, although it may contain personal data, does not in itself constitute such data: at [39]. Held the CJEU, “a legal analysis is not information relating to the applicant for a residence permit, but at most, in so far as it is not limited to a purely abstract interpretation of the law, is information about the assessment and application by the competent authority of that law to the applicant’s situation, that situation being established inter alia by means of the personal data relating to him which that authority has available to it”: at [40]. Extending the application of personal data to cover the legal analysis would not guarantee the right to privacy, or the right to check the accuracy of the personal data itself, but would amount to a right to administrative documents, which the Directive does not provide: at [45]-[46].

Not the most ground-breaking decision to emanate from Luxembourg, but a nonetheless interesting reminder of the utility of carefully distinguishing between different types of data within the same document.

Christopher Knight

Late Reliance on Part I Exemptions

July 18th, 2014 by Christopher Knight

Although hardly at the top of anyone’s list of burning questions which keep them awake at night, there has been a debate about whether the permission to rely on exemptions late (usually after the DN and in the course of litigation before the FTT) extends beyond the substantive exemptions in Part II of FOIA – as provided for in Birkett v DEFRA [2011] EWCA Civ 1606 - to the procedural exemptions of sections 12 and 14.

The question is made all the more enthralling by a conflict of case law, which those who attended our Information Law Conference in 2013 and who weren’t snoozing during my paper will recall. Independent Police Complaints Commission v Information Commissioner [2012] 1 Info LR 427 had held that there could be late reliance on section 12. The Upper Tribunal in All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner & Ministry of Defence [2011] UKUT 153 (AAC); [2011] 2 Info LR 75 expressed the clear, if obiter, view that section 12 was not in the same position as substantive FOIA Part II exemptions because it had a different purpose; section 12 is not about the nature of the information but the effect on the public authority of having to deal with the request. The scheme of FOIA was likely to be distorted, the Upper Tribunal held, if the authority could suddenly rely on section 12 after already having carried out the search and engaged with the requestor: at [45]-[47]. The APPGER approach was accepted by the FTT in Sittampalam v Information Commissioner & BBC [2011] 2 Info LR 195. There was at least a school of thought that the APPGER logic ought also to apply to section 14 (which, as was explained in Dransfield, is not properly an exemption at all: at [10]-[11]).

In Department for Education v Information Commissioner & McInerney (EA/2013/0270) GRC Chamber President Judge Warren considered the late reliance by the DfE on sections 12 and 14, and upheld the DfE’s appeal under section 14. In an appendix, he dismissed the suggestion of the ICO that APPGER meant that section 14 could not be relied upon late. In rather brief reasoning, he considered that if section 17 did not bar late reliance on Part II exemptions (as it was clear that it did not following Birkett), there was no linguistic reason to apply the same approach to Part I exemptions. Sections 12 and 14 could therefore be relied upon late, as a matter of right.

So that is that. Except of course, that there is now a real conflict of authority at FTT level, and with conflicting dicta at UT level too (APPGER having doubted Information Commissioner v Home Office [2011] UKUT 17 (AAC) on this point). Maybe someone would like to take the point on appeal and have it properly determined.

Andrew Sharland was for the DfE and Robin Hopkins was for the ICO.

Christopher Knight

More on Spamalot

June 19th, 2014 by Anya Proops

Following on from my post earlier today on Niebel, readers may like to note that Jon Baines’s excellent blog, Information Rights and Wrongs has an interesting and detailed analysis of the Mansfield v John Lewis case – see here. The article suggests that Mr Mansfield’s damages may have garnered him the princely sum of £10!

Criminal records scheme incompatible with Convention rights – Supreme Court judgment

June 19th, 2014 by Anya Proops

As readers of this blog will know, the application of the Government’s criminal records scheme has been subject to extensive litigation of late (see further not least my post on an appeal involving a teacher and my post on an appeal involving a taxi-driver). Perhaps most importantly, in the case of T & Anor v Secretary of State for the Home Department, questions have been raised about whether the scheme as a whole is compatible with Convention rights and, in particular, the Article 8 right to privacy. Last year, the Court of Appeal concluded that the scheme was incompatible (see further Christopher Knight’s analysis of the Court’s judgment here). In a judgment given yesterday, the majority of the Supreme Court has agreed with that conclusion (Lord Wilson dissenting). The judgment will no doubt be subject to further analysis on Panopticon over the next few days. However, in short, the Supreme Court held that:

(a)    warnings and cautions given to the appellants by the police engaged their Article 8 right to privacy

(b)    the disclosure of those warnings and cautions in enhanced criminal records certificates (ECRCs) issued under the scheme amounted to an interference with the appellants’ right to privacy,  particularly as it affected their ability to enter a particular chosen field of endeavour, for example their ability to secure particular jobs and

(c)    the interference could not be justified under Article 8(2), particularly because the indiscriminate manner in which such information was provided under the scheme was not ‘in accordance with law’ for the purposes of Article 8(2), was not ‘necessary in a democratic society’ and was not otherwise proportionate.

On the latter point, the majority of the Supreme Court was clearly concerned about the fact that, in the context of ECRCs, warnings and cautions could be included in the relevant certificate irrespective of the nature of the offence, how the case had been disposed of, the time which had elapsed since the offence took place, the relevance of the data to the employment sought and the absence of any mechanism for independent review of a decision to disclose data. The majority of the Supreme Court evidently regarded the case of T as perfectly illustrative of the dangers inherent in such an indiscriminate scheme. In T, an ECRC was issued in respect of T containing information concerning police warnings which T had received when he was 11, in connection with the theft of bicycles. In the majority’s view, it was entirely unnecessary for such information to be disclosed when T applied, aged 17, for a job which involved working with children and also when he applied, aged 19, to attend university. The majority also refused the appeal against the Court of Appeal’s declaration of incompatibility in respect of the relevant primary legislation, namely the Police Act 1997.

What we see with this judgment, as with many judgments concerning the application of Convention rights, is a reluctant to favour blanket, administratively convenient solutions over more nuanced individual-centred schemes.

11KBW’s Jason Coppel QC acted for the Secretary of State. Tim Pitt-Payne QC appeared on behalf of Liberty.

Anya Proops

Victory for Spamalot – Niebel in the Upper Tribunal

June 19th, 2014 by Anya Proops

The spamming industry is a decidedly irritating but sadly almost unavoidable feature of our networked world. There is no question but that spamming (i.e. the sending of unsolicited direct marketing electronic communications) constitutes an unlawful invasion of our privacy (see further regs 22-23 of the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) (PECR), implemented under EU Directive 2002/21/EC). The question is what can be done to stop it, particularly given that individual citizens will typically not want to waste their time litigating over the odd spam email or text?

Well one way to address this problem would be to have an effective penalties regime in place, one that effectively kicked the spammers where it hurts by subjecting them to substantial financial penalties. No surprise then that, in 2009, the EU Directive which prohibits spamming was amended so as to require Member States to ensure that they had in place penalties regimes which were ‘effective proportionate and dissuasive’ (see Article 15a of the Directive). This provision in turn led to amendments to PECR which resulted in the monetary penalty regime provided for under s. 55A of the Data Protection Act 1998 being effectively incorporated into PECR. Readers of this blog will be aware of recent litigation over the application of s. 55A in the context of cases involving breaches of the DPA (see further the current leading case on this issue Central London Community Healthcare NHS Trust v Information Commissioner [2014] 1 Info LR 51, which you can read about here). But is the DPA monetary penalty regime really fit for purpose when it comes to dealing with spamming activities which are prohibited by PECR? If the recent decision by the Upper Tribunal in the case of Information Commissioner v Niebel is anything to go by, the answer to that question must be a resounding no.

The background to the Niebel case is as follows. Mr Niebel had sent out unsolicited text messages on an industrial scale. The texts sought out potential claimants in respect of misselling of PPI loans. The Information Commissioner, who had received hundreds of complaints about the texts, went on to issue Mr Niebel with a monetary penalty of £300,000. So far so unsurprising you might say. However, Mr Niebel has since managed to persuade the First-Tier Tribunal (FTT) to quash the penalty in its entirety (see its decision here) and now the Upper Tribunal (UT) has decided that the penalty should be left firmly quashed (see the UT’s decision here).

So how has Mr Niebel been able to avoid any penalty despite the patently unlawful nature of his activities? To answer that question one first has to understand the ostensibly high threshold which must be cleared if the power to impose a penalty is to be engaged. In short, the legislation only permits a penalty to be issued if there is ‘a serious contravention’ of the legislation (s. 55A(1)(a) and that contravention was ‘of a kind likely to cause substantial damage or substantial distress’ (s. 55A(1)(b) – there is also a knowledge requirement (s. 55A(1)(c)) however that requirement will typically be made out in the case of unlawful spammers). But can it really be said that the sending of relatively anodyne spam text message is ‘of a kind likely to cause recipients substantial damage or substantial distress’? Both the FTT and the UT have now firmly answered this question in the negative.

In the course of its decision, the UT considered the following arguments advanced by the Commissioner.

-        First, when deciding whether the contravention was ‘of a kind’ likely to cause substantial damage or substantial distress, it was possible to take into account not only the scale of the particular texts in issue but also the scale of Mr Niebel’s overall spamming operation. This was an important argument in the context of the appeal because, whilst there was no doubt that over time Mr Niebel had sent out hundreds of thousands of unsolicited communications, the Commissioner had identified ‘the contravention’ as relating only to 286 text messages in respect of which he had received complaints. (He had accepted that some 125 other complaints could not be taken into account as they related to communications sent prior to the coming into force of the penalties regime). The issue was therefore whether the wider context could be taken into account when deciding whether the contravention was ‘of a kind’ likely to cause substantial damage or substantial distress.

-        Second, the word ‘substantial’ in this context must be construed as meaning merely that the damage or distress was more than trivial. This is because the penalties regime was plainly intended to bite on unlawful spammers who caused low level damage or mere irritation, and such individuals would not be caught by the legislation if the word ‘substantial’ was construed as carrying any greater weight.

-        Third, the FTT had otherwise erred when it concluded that the 286 texts in issue were not of a kind likely to cause substantial damage or substantial distress.

On the first argument, the UT accepted that the scale of the contravention could be taken into account when deciding whether it was of a kind likely to cause substantial damage or substantial distress. However, it rejected the argument that Mr Niebel’s wider spamming activities were relevant to the analysis. The UT concluded that activities these did not form part of the ‘contravention’ relied upon by the Commissioner and were not therefore relevant to the analysis when it came to deciding whether s. 55A was engaged (para. 38).

On the second argument, the UT accepted Mr Niebel’s argument that it was not appropriate to try and deconstruct the meaning of the word ‘substantial’ and that the FTT had not erred when it had concluded simply that the question whether the substantial element was made out was ‘ultimately a question of fact and degree’ (paras. 42-51).

On the third argument, the UT held that the FTT’s decision that the 286 texts in issue were not of a kind to cause substantial damage was ‘simply unassailable’. The FTT had been entitled to conclude that the mere fact that recipients might have felt obliged to send ‘STOP’ messages to Mr Niebel did not amount to ‘substantial damage’ (para. 54). On the question of substantial distress, the FTT had been right to conclude that not all injury to feelings would amount to ‘distress’ and that irritation or frustration was not the same as distress. It concluded that there was nothing in the recent judgments in Halliday v Creation Consumer Finance or Vidal-Hall v Google which required a different result. Moreover, the UT was not prepared to accept that the FTT had failed to take into account evidence before it arguably suggesting that individual complainants were in fact substantially distressed by the messages. In the UT’s view the FTT had plainly been mindful of this evidence when it reached its conclusions (paras. 67-73).

Perhaps the most telling line in the judgment is to be found in paragraph 65 where the UT, having noted that the Commissioner had probably done all he could to draw Mr Niebel into the cross-hairs of the legislation, went on to conclude that the most profitable course would be for ‘the statutory test to be revisited with a view to making it better fit the objectives of the 2002 Directive (as amended). So, for example, a statutory test that was formulated in terms of e.g. annoyance, inconvenience and/or irritation, rather than “substantial damage or substantial distress”, might well have resulted in a different outcome. What cannot be doubted is that, absent a successful appeal against the UT’s decision, this legislation will need to be revisited so as to avoid a situation where the spammers end up laughing all the way to the bank whilst the penalties regime descends into obsolescence.

However, I should add that the picture is not altogether rosy for the spammers of this world. According to recent media reports, John Lewis has recently had to pay out damages to Roddy Mansfield, Sky News producer, after it sent him an unsolicited marketing email (see the Sky News report of the matter here – the report does not confirm the quantum of the damages). This rather raises the question of whether, in the face of an apparently deficient monetary penalty regime, the best cure for the disease of unlawful spamming might be to mount a group action.

The Niebel case was another 11KBW affair with Robin Hopkins acting for Mr Niebel and James Cornwell acting for the ICO.

Anya Proops

Open justice and freedom of information – Browning in the Court of Appeal

June 18th, 2014 by Anya Proops

The issue of just how open our justice system should be is an issue which is or should be of fundamental concern to all practising lawyers. If, as Jeremy Bentham once stated ‘publicity is the very soul of justice’ (cited by Lord Shaw in the leading case of Scott v Scott [1913] AC 477), then an open justice system is the corporeal expression of that soul. However, we now live in times where open justice is increasingly under threat. Indeed, as last week’s headlines reminded us all, matters have now got to a stage where some judges at least have been prepared to allow, not merely the deployment of a limited closed procedure to deal with certain aspects of a case, but a completely secret trial. It no doubt came as a relief to many that the Court of Appeal was not prepared to sanction such a comprehensive departure from the open justice principle: Guardian News v AB CD. However, the mere fact that the judiciary was prepared to contemplate such a procedure shows how far we have come since the days of Scott v Scott.

Today the open justice principle is back before the Court of Appeal as it hears the case of Browning v IC & DBIS (the Court comprises Maurice Kay LJ (Vice President of the Court of Appeal, Civil Division), Patten LJ and McCombe LJ). This time the core issue for the Court of Appeal to determine is the extent to which secrecy in judicial proceedings is a necessary evil in the context of appeals concerning the application of the FOIA regime (see Robin Hopkins’ post about the Upper Tribunal decision being appealed here).

Of course, the starting point in such a case must be that the information which is itself the subject of the appeal (i.e. the disputed information) should be withheld from the applicant and the wider public pending the outcome of the appellate process. Were it otherwise, an applicant would be able to access information which the legislation had designated as exempt simply by mounting an appeal. Plainly this cannot be the right result and it is not the result which Mr Browning is seeking in his case. Rather the issue which arises in Browning is the extent to which other sensitive evidence and submissions, which the public authority wishes to advance in support of its case on appeal, can equally be shrouded in secrecy.

This is a major issue both for applicants, the media and the wider public. This is so for two reasons.

-        First, if an applicant is unable to gain access to key evidence relied upon by the public authority in support of its case on appeal, then inevitably they will be substantially handicapped in advancing their case on appeal. In effect, they are conducting the litigation blindfolded and with one arm tied behind their back. Even if they are given the gist of the evidence in question, typically the devil is in the detail, with the result that the applicant is unable to fathom the substance of the case being put against them. Faced with that scenario, the applicant can only hope that the tribunal, possibly with the assistance of the Commissioner, will itself have the imagination, legal acuity and strength of resolve to subject the public authority’s closed evidence and submissions to proper testing during the closed session.

-        Second, the adoption of closed procedures substantially prevents any rigorous public scrutiny of the ways in which the judiciary is discharging its functions in the context of FOIA appeals. If open justice is, as Lord Shaw put it in Scott v Scott ‘the keenest spur to [judicial] exertion and the surest of all guards against improbity’ then the adoption of closed procedures is the surest way to strip the public of what has been described as its constitutional right to put the judges on trial and ensure that they are discharging their functions in a just manner.

That the latter concern is of real practical importance has been illustrated not least in a recent case in which I acted on behalf of an applicant: Brown v Attorney General, which you can read about here. In Brown, which concerned a request to access a so-called judicial practice direction concerning the sealing of Royal wills, the Upper Tribunal refused Mr Brown permission to appeal against the First-Tier Tribunal’s decision. It was clear that, in refusing permission, the Upper Tribunal had relied heavily on closed material to which Mr Brown had not been privy, although its open written reasons did not indicate how consideration of the closed material warranted this result. However, when the issue of the legality of the Upper Tribunal’s decision came before the High Court by way of a judicial review claim brought by Mr Brown, the Court, which had not been provided with the closed material, readily granted permission for Mr Brown’s claim to proceed. Thereafter the Attorney-General conceded the claim with the result that the appeal against the First-Tier Tribunal’s decision is now due to be substantively heard by the Upper Tribunal. The lesson one draws from this case is that it cannot be presumed that tribunals which reach decisions based on their analysis of closed materials consistently get the approach right.

Of course, it might be said that the appellate process is itself sufficient to address this problem, as it was in the case of Brown. However, there are three difficulties with this argument. First, it presumes, rather unrealistically, that applicants will themselves always have the courage and resources to take their cases to the higher courts. Second, it fails to address the significant point that very often, as a result of their exclusion from the closed process, applicants will have little clue whether or not an appeal would have legs, which very often will deter an applicant from even contemplating an appeal and will in any event substantially inhibit the formulation of potentially relevant grounds of appeal. Third, it ignores the constitutional right of the wider public to scrutinise the judicial process. Significantly, members of the general public, including members of the media, will themselves have no right to appeal in a case in which they were not a party.

So there we have the problem. What is the solution? Well Mr Browning’s case is simple: (a) the tribunal should ensure at a minimum that it rigorously tests assertions by the public authority that particular evidence or particular submissions need to be dealt with on a closed basis (this should now in any event be happening on a routine basis in the tribunal) and (b) in cases where some evidence or submissions have to be dealt with as part of the closed process, the tribunal should allow the applicant’s legal representative to see any closed material and take part in any closed hearing, on condition that he or she does not disclose any part of the closed material to the applicant or any third party. (Interestingly, and by way of contrast, in the Guardian v ABCD case, in the course of the first instance hearing of the application for the trial to be conducted in secret, the court permitted counsel for the media to see relevant closed materials and participate in the closed part of the hearing).

In view of the conclusions reached by the Upper Tribunal, one can anticipate that that the ICO and DBIS, who both resist the appeal will argue: (a) that a core difficulty with an approach which permits the applicant’s representative to access the closed materials/closed session is that it lacks the procedural safeguards available, for example where ‘special advocates’ are used – see further the Upper Tribunal’s decision where reference is made for example to the risk that the applicant’s representative will inadvertently leak closed material to the applicant and, further, (b) that the inquisitorial manner in which the tribunal approaches the exercise of its functions substantially diminishes the pressure to involve the applicant’s representative in the closed part of the hearing.

It remains to be seen what the Court of Appeal will make of these arguments. However, no one can doubt the importance of this case, not only in terms of establishing the applicable procedural rules for the information tribunal, but also in terms of the wider constitutional vitality of the open justice principle.

11KBW’s Ben Hooper is acting for the ICO.

Anya Proops

Section 14 in the Court of Appeal

June 10th, 2014 by Christopher Knight

Just when you thought it was safe to go back in the water. Just when you had got your head round the decisions of Judge Wikeley in Information Commissioner v Devon CC & Dransfield 2012] UKUT 440 (AAC); [2013] 1 Info LR 360 and Craven v Information Commissioner & DECC [2012] UKUT 442 (AAC); [2013] 1 Info LR 335, and the Information Commissioner has issued spangly new guidance on section 14, and the FTT has been merrily applying the new tests to a host of appeals. Just when all that had become de rigeur and everyone was settling back down…

The Court of Appeal, in the form of Briggs LJ at an oral renewal hearing, has granted Mr Dransfield and Ms Craven permission to appeal against the judgments of Judge Wikeley on the issues of the proper interpretation of section 14(1) FOIA and regulation 12(4)(b) EIR (respectively), and the application to their requests for information. Briggs LJ also granted both appellants the necessary extension of time for their appeals. He refused their applications to admit fresh evidence.

No appeal date has been set – the Order granting permission was only sent on 9 June. But the various members of 11KBW involved below (Tom Cross for the ICO, Rachel Kamm for Devon CC, James Cornwell for DECC) will enable Panopticon to ensure that it continues to cause readers to gaze in horror at their screens with the latest updates. Our work here is only just beginning…

Christopher Knight

Cyril Smith and the FTT

June 9th, 2014 by Christopher Knight

Although not a decision of any particular legal significance, it is perhaps worth mentioning the judgment last week of the First-tier Tribunal in Corke v Information Commissioner & Crown Prosecution Service (EA/2014/0012), if only because it is one of those relatively rare occasions on which the work of the FTT itself (as opposed to the information it results in) has been the subject of news coverage, ranging from the Daily Mail to the BBC.

The request was for disclosure of information relating to the now fairly notorious decisions made over time not to prosecute Sir Cyril Smith (a Liberal MP who died in 2010) for offences against children. The disputed material consists of two Minutes prepared by a CPS lawyer in 1998 and 1999. The first reviewed case papers considered in1970 and looked at the weight of the evidence, reflected on the changing approach to the investigation and prosecution of such crimes between 1970 and 1998 and considers bars to a prosecution being launched in 1998. The second considered two more allegations. The material contains the names of individuals concerned in the case in particular the youths who made allegations against Sir Cyril.

The CPS withheld information within the scope of the request, citing section 30(1)(c) (information held for the purpose of criminal proceedings), section 42(1) (legal professional privilege), and section 40(2) (third party personal data). The ICO issued a DN which held that the public interest was finely balanced, but upheld the refusal to disclose. Amongst other things, the ICO noted that the CPS had provided some public explanation of its past decisions and made clear that the same approach would be unlikely to be taken now.

The FTT disagreed with the DN and found that the public interest favoured disclosure of almost all of the requested information (with some redactions). It held that the safe space of the CPS would be unlikely to be harmed given the unique nature of the particular case involved, and the professionalism (and professional obligations) of CPS lawyers. It considered that the documents were in themselves significant historical documents which cast light on changes in the law as it has responded to the evolution of understanding of these crimes and changing social attitudes to them, as well as casting light on Sir Cyril himself. The unusual nature of the case also meant that the public interest in disclosing material covered by section 42 also favoured disclosure. Not surprisingly, the death of Sir Cyril Smith was also mentioned. The FTT redacted material which went beyond the names of the complainants, which might conceivably be used to identify them.

Christopher Knight

Data Protection and Child Protection

June 6th, 2014 by Christopher Knight

One of the difficulties users and practitioners have with the Data Protection Act 1998 is that there is so little case law on any of the provisions, it can be very hard to know how a court will react to the complicated structure and often unusual factual scenarios which can throw up potential claims. There are two reasons why there is so little case law. First, most damages claims under the DPA go to the County Court, where unless you were in the case it is hard to know that it happened or get hold of a judgment. Secondly, most damages claims are for small sums, which is it is more cost-effective to settle than fight.

Neither of those problems applied in MXA v Hounslow LBC, West Berkshire Council, Taunton Dean BC & Wokingham BC (QBD, 4 June 2014, not yet reported), in which M had filed claims in the High Court against a series of local authorities alleging that they held inaccurate and damaging information about him (presumably under sections 10 and 14 DPA, although the limited report available does not make clear). The local authorities applied to strike out the claims, and M failed to attend the hearing. M also alleged a breach of Article 8 ECHR in the data handling.

The facts as summarised are regrettably common. Harrow received information alleging that the step-daughter of M, E, was being physically and sexually abused by M. M complained about records of allegations of sexual misbehaviour towards a child in 2007 set out in a police report, which he denied. Harrow passed the information to Wokingham when E moved into that area. Wokingham recorded and reviewed the material and passed it on to West Berkshire when E moved again. Further allegations received by West Berkshire were sufficiently serious to require an investigation. M had signed forms consenting to the sharing and collection of information. Care proceedings were later initiated.

Perhaps not surprisingly, Bean J granted the application to strike out. He held that the local authorities were conducting child protection functions under their statutory duties (see, for example, the Children Act 1989).  In relation to the fifth data protection principle that personal data should not be held for longer than necessary, Harrow had received a recent complaint and had been provided with police records of convictions and other allegations. The duty of the local authorities, as the baton passed to each of them, was to keep those records for as long as necessary to ensure E’s welfare. The welfare investigation was at an early stage and the local authorities would clearly be acting in breach of their duty if they shredded the information. M could not argue that the information was so historic and uncorroborated that it ought to have been wiped and not disseminated. It had not been disseminated to the public, but passed only to local authorities where the family had lived.

Data controllers recorded a variety of information including allegations and mere suspicions due to the nature of the investigation. The suggestion that the information should not have been recorded unless the data controller was satisfied of its truth to a civil standard was unsustainable, as to which Bean J cited Johnson v Medical Defence Union [2007] EWCA Civ 262; [2011] 1 Info LR 110. Any claim based on the fourth data protection principle that information should be accurate and up to date was met by para 7 of Part II of Schedule 1 as the purpose for which the data was obtained was child protection. Reasonable steps had been taken to ensure its accuracy and the record indicated those matters which M had said were inaccurate. M had twice signed forms consenting to the retrieval of medical and criminal records.

Moreover, M’s section 10 claim to prevent processing likely to cause damage or distress was excluded by section 10(2) and para 3 of Schedule 2, as the processing was necessary to enable the local authorities to comply with their statutory obligations. They were doing no more than performing a proper statutory function.

Bean J also struck out claims of negligence, held that Articles 3 and 6 ECHR were irrelevant, and that there was an interference with M’s Article 8 rights but that it was plainly proportionate in order to protect E.

All of which goes to show that the DPA does not stop public authorities carrying out their important duties, even where underlying facts or allegations are disputed, and that on the occasions where the DPA makes it to court the judges can be trusted to understand both the context in which the authority must operate and that the DPA is intended to recognise that context. Perhaps DPA users have nothing to fear but fear itself after all.

11KBW’s Timothy Pitt-Payne QC acted for West Berkshire Council.

Christopher Knight