Vexed by Vexatiousness? The Court of Appeal is Here to Help

May 14th, 2015 by Christopher Knight

The Court of Appeal has today handed down judgment in Dransfield v ICO & Devon County Council; Craven v ICO & Department for Energy and Climate Change [2015] EWCA Civ 454 (Dransfield Craven FINAL JUDGMENT 14 5 15. As people will recall, Dransfield is concerned only with section 14 FOIA, and Craven is concerned with whether the same approach should be adopted under the differently worded regulation 12(4)(b) EIR. For those desperately hoping it would not require completely relearning everything just as everyone was getting used to the Upper Tribunal decisions (on which see Robin’s lengthy screed here), a sigh of relief can be exhaled. Arden LJ gives the only substantive judgment (with which Gloster and Macur LJJ agree), which she helpfully summarises at [5]-[7] and which I set out in full so people with better things to do can stop reading:

5. The appeals raise different and difficult questions. In my judgment, for the detailed reasons given below, this court should dismiss each appeal.  

6. In Mr Dransfield’s case, the request, taken on its own, is a precise and politely-worded request. There is nothing on the face of this request which could be termed “vexatious”. Nonetheless the UT held that it was vexatious because of the past history of dealings between him and the authority. So the principal issue on his appeal is whether a request can treated as vexatious if it is not itself vexatious but previous requests have been. The FTT thought that the line had to be drawn at previous requests which “infected” the request under consideration (“the current request”). The UT rejected that test and held that there was no line to be drawn. Mr Dransfield seeks to uphold the test applied by the FTT. I do not accept this submission because it involves writing words into FOIA which the court may not do. The UT went on to formulate and apply guidance as to the meaning of “vexatious” which he has not challenged.

7. In Mrs Craven’s case, the principal question is whether the tests under section 14 FOIA and regulation 12(4)(b) have the same meaning (“the two-tests-one-meaning issue”). I conclude that to all intents and purposes they do. The next questions are whether the IC could raise an objection under regulation 12(4)(b) when the authority had not done so, whether section 14 (2) affects the meaning of section 14(1) and whether the costs of compliance could be taken into account under both tests (“the costs of compliance issue”). I agree with the UT on those points too. I would therefore dismiss Mrs Craven’s appeal also.”

And so orthodoxy reigns.

As to the detail of the judgment, although it is relatively long (28 pages), when one strips out the annexed statutory provisions, the factual background and the submissions of the parties, the actual analysis only runs from [61]-[73] on Mr Dransfield’s appeal and [74]-[88] on Mrs Craven’s.

In relation to Dransfield, the issue was the degree to which a prior course of conduct of the requestor could infect a request which in and of itself was inoffensive. Arden LJ agreed that no comprehensive or exhaustive definition should be adopted, but considered that the focus should be “on an objective standard and that the starting point is that vexatiousness primarily involves making a request which has no reasonable foundation, that is, no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public“. The test should be a high one to meet, but all relevant circumstances should be considered. Where a motive can be established, that may be evidence of vexatiousness, although if the request is aimed at disclosure of important information which ought to be publicly available then even a “vengeful” request may not meet the test: at [68]. Motive was relevant here; section 14 is an exception to the ordinary approach that the reason why a right is exercised is irrelevant: at [66]. The FTT’s approach had been wrong; there were no bright lines and attempting them was illogical. Evidence of prior requests was capable of throwing light on the current request and the motivation behind it: at [69]. Had it been necessary to do so, the Court would have accepted that the Upper Tribunal had made an unchallengeable finding that the belligerent and unreasonable tone linked to the present request: at [71]. Because, as stressed at [6], there was no challenge to the Upper Tribunal’s general guidance, the Court of Appeal cast no doubt upon it and it will continue to be a useful source of assistance (with the caveat that protection of public resources cannot lower the high standard of vexatiousness required: at [72]).

In relation to Craven, Arden LJ dealt with a slightly wider range of issues. She made further comments on section 14 itself, noting that vexatiousness could not mean a requirement for persistent requests, still less for persistent requests to a range of different authorities, which would not be readily discoverable: at [77]. Section 14(2), on repeat requests, is a separate power which does not assist in interpreting section 14(1): at [82]. A key question in Craven was whether there should be any difference between the two regimes. Arden LJ held that there was not, particularly because section 14 was primarily an objective analysis, which accorded with the natural meaning of “unreasonable“. The word “manifestly” simply means that it must be clearly shown, and does not require detailed investigation by the authority into things it does not know: at [78]. There was no suggestion that the answer would have been any different under section 14: at [79] (although of course CJEU case law may develop in a different direction). One notable aspect of Craven is that it was a single request which was particularly burdensome and costly to deal with, but there was no section 12 equivalent in the EIR, and on this Arden LJ agreed with the Upper Tribunal’s approach: cost of compliance can be taken into account, although those costs would have to be balanced against the benefits of disclosure: at [83]. An unconcluded view was expressed that a higher hurdle might apply to rely on the costs burden under the EIR than FOIA, but no decision was reached: at [84]. The Court was satisfied that a costs burden could indeed apply to section 14: at [85].

We are, as a result, more or less where we were before the Court of Appeal’s judgment. Indeed all it has probably added is the weight of authority in some places and a bit of confusion (mostly around section 14 being objective, which is unhelpfully expressed but not, it appears, substantively different) in others. People can sensibly continue to guide themselves by the much more detailed guidance of the Upper Tribunal, subject to the caveats noted here. All the important clarifications made by the Upper Tribunal survive, and one suspects very limited changes will be required to the ICO’s Guidance. Repeat requestors should beware, particularly if they are unreasonable ones, and those making single but large requests should too.

The ICO was represented in both appeals by Tom Cross; Devon CC by Rachel Kamm and DECC by James Cornwell.

Christopher Knight

Right to be forgotten…in Japan

May 13th, 2015 by Anya Proops

I have just had my attention drawn to this interesting article from the Japan Times about how the right to be forgotten is beginning to gain traction in Japan. Just goes to show that Europe is not the only environment within which this highly controversial right can potentially gain a foothold.

Anya Proops

Vidal-hall in the supreme court?

May 13th, 2015 by Anya Proops

Just two short but important pieces of news. First, I can now confirm that Google has applied for permission to appeal to the Supreme Court in respect of the Court of Appeal’s landmark judgment in Vidal-Hall v Google. The SC’s judgment on the application is awaited. Second, it would appear that the case of CG v Facebook which I blogged about earlier this year (see here) is also currently on appeal in Northern Ireland, with a cross-appeal being brought by CG on the question of whether the court erred when it concluded that Facebook fell outside the territorial scope of the DPA 1998. For further news on these important cases, watch this space.

Anya Proops

Section 7(9) Again (What, Again?)

May 7th, 2015 by Christopher Knight

On a day when the country goes to the polls (or, if you a UKIP supporter, to the Poles), it is nice to be able remind people of the more important things in life than mere democratic-right exercising. The chief of these is, surely, developments under the Data Protection Act 1998. Happily, Panopticon can assist, with a quick note on an ex tempore judgment of HHJ Seymour QC in Ittihadieh v 5-11 Cheyne Gardens RTM Co Ltd & 6 others (QBD, 5 May 2015). There is no transcript yet available, but a headnote is now reported on Lawtel, and this summary is taken from that.

Unfortunately, without the full reasoning, one does not get the sense of what looks likely to have been a more involved argument than the bare findings relate. The case concerned an SAR made to a company, which the Claimant asserted had been an SAR to both the company and the six individual directors of that company, all of whom were data controllers. Only the company had responded, with 400 pages of documents. One might have thought the argument that directors were also data controllers would face significant difficulties in the light of Southern Pacific Personal Loans [2013] EWHC 2485 (Admin) (see here). However, Judge Seymour QC appears to have resolved the matter on the facts: the Claimant’s statements had been that he believed only the company was the data controller, he had only paid one £10 fee and the proper construction of the SAR was that it was only made to the company. The claims were accordingly struck out against the individuals.

However, even had they not been, the Judge indicated that the individuals would most likely have been able to rely upon the domestic purposes exemption in section 36 DPA, and that he would have refused relief in his discretion to require them to search their personal email accounts in order to prove the application of section 36. That is quite an interesting little comment on the extent of section 36, and its interaction with ‘personal’ emails, and it will be useful to see the full reasoning in due course.

The case also contained a reminder that just because someone pleads section 13, even after Vidal-Hall, it is no guarantee of damages. The Judge considered that there was no indication of any identifiable class of damage, and the Claimant had not bothered to try and quantify his claim. As a result, it was difficult to contemplate that he would be able to demonstrate having suffered damage or distress. The company itself had adequately complied with its obligations (although the headnote does not explain what adequate compliance consists of, or how it fits with the language of section 7) and no further order was required. The section 13 claim was transferred to the County Court.

No pretence that Ittihadieh is going to blow your mind over your cornflakes (other breakfast comestibles are available), but there are a couple of little nuggets of interest and it will be worth keeping an eye out for the full transcript as and when it hits the shelves. We DP lawyers are not yet so overwhelmed by jurisprudence that we can afford to look a section 7(9) judgment in the mouth. And with that allusion to Ancient Greece, it falls only to this blog to remind you all of your civic duty to grasp what the Prime Minister so unnervingly insists on referring to as the “stubby pencil” and vote.

Robin Hopkins (who he?) appeared for the seven defendants.

Christopher Knight

IAPP conference highlights

May 5th, 2015 by Anya Proops

I have today been speaking at the IAPP conference at A&O alongside David Smith (UK Deputy Information Commissioner), Bruno Gencarelli (European Commission, Head of Data Protection Unit) and Wojciech Wiewiórowski (Assistant European Data Protection Supervisor). The conference yielded a number of really interesting insights, a number of which I highlight below.

First and perhaps most importantly, Mr Gencarelli made clear that, so far as the draft General Data Protection Regulation was concerned, the firm expectation within Europe was that the GDPR would be agreed by the end of this year. This is obviously important given that the apparently endless European wranglings over the shape of the GDPR had led some to question whether the GDPR would be finalised within the foreseeable future. Mr Gencarelli also pointed out that we could expect that, over the ensuing two year transition period, the GDPR principles would be further refined and developed, as the European Commission engaged in a trilogue with the European Data Protection Authorities and industry bodies. This inevitably suggests that the conclusion of the formal negotiations over the GDPR will not in any sense bring the process of developing European data protection principles to an end.

Mr Gencarelli also highlighted the significant impact which the EU Charter had had on the legal approach to data protection. As he put it, the fact that data protection rights were given specific protection under the Charter meant that data protection rights now had a greater legal resonance and significance than was previously the case. Notably, Mr Gencarelli’s observations on this issue obviously chime closely with the approach to the application of Charter rights adopted by the Court of Appeal in its recent judgment in Vidal-Hall v Google.

Mr Wiewiórowski also provided some fascinating insights into the European perspective on data protection. He reflected in particular upon the role being played by the CJEU in terms of pushing the privacy agenda within Europe under the existing Directive. Mr Wiewiórowski made clear that, in his view, this was a judicial trend which was itself born out of discussions on the new privacy-preoccupied agenda embodied in the Commission’s proposals for the GDPR. Thus, in effect, the EU judiciary was working in a highly dialectical relationship with the EU legislature to produce a new cultural approach to privacy rights within Europe.

Mr Wiewiórowski also made the interesting point that developments in the UK data protection jurisprudence had a disproportionately large impact on the development of data protection law within Europe as a whole. As he observed, this was not because UK lawyers and judges were seen as being cleverer than their European counterparts. Rather it was simply a product of the somewhat prosaic fact that UK judgments are in English, with the result that they are more readily comprehensible to our EU colleagues. Thus, he suggested that the Court of Appeal’s judgment in Vidal-Hall was now being discussed very widely within Europe, particularly because it was a judgment which could be accessed and understood by practitioners across the European piste.

Mr Wiewiórowski also made some very interesting observations about the approach taken within the GDPR to the ‘journalistic exemption’. As many readers of this blog will know, there is currently a debate going on within Europe as to whether the approach to the exemption proposed by the Council of Europe gives enough protection to classic journalistic freedoms. This debate has arisen particularly because the Council’s proposed text removes any reference to journalism per se. This has prompted many within the media to raise concerns that Europe is unacceptably seeking to dilute protection for journalists in a way that fundamentally offends against Article 10 of the European Convention on Human Rights and Article 11 of the EU Charter. Mr Wiewiórowski expressed the view that the scope of the journalistic exemption was perhaps one of the most challenging issues to arise under the draft GDPR and he was not at all confident that this issue would be satisfactorily resolved by the time the GDPR was finalised. These are obviously really important observations, not least because they suggest that existing questions as to how data protection rights are to be reconciled with Article 10 rights are unlikely to be finally resolved merely as a result of the enactment of the GDPR.

In terms of the domestic regulatory perspective, David Smith’s presentation very helpfully illuminated how the ICO was approaching the right to be forgotten regime.

On this regime, Mr Smith made clear that, since Google Spain was decided, the ICO had received approximately 200 complaints from data subjects in response to refusals by Google to delete particular links. Of those 200 complaints, roughly 150 had been decided in Google’s favour, with the remaining 50 being decided in favour of the data subjects. Mr Smith indicated that the ICO was now engaged in discussions with Google about this latter set of cases.

Mr Smith also made clear that the ICO had been impressed with Google’s overall approach to the right to be forgotten regime and that there were generally no significant differences of approach between the ICO and Google in terms of how the regime was to be applied. He did however indicate that one area of disagreement was as to whether Google should be notifying publishers when they receive requests from individual applicants. Google’s position on this issue is that typically publishers should be notified. By way of contrast, the ICO’s position is that notification should take place only in exceptional cases. Obviously, this divergence of view takes us back to the important and, as yet, unresolved question as to how data protection rights should be reconciled with Article 10 freedom of expression rights. Clearly as matters currently stand, Google is preferring a more pro-Article 10 approach than the ICO. Query whether Google will continue to adopt such a stance in future.

Notably, Mr Smith also made clear that the ICO’s view was that google.com should be treated as caught by the CJEU’s judgment in Google Spain. Again this is an important point. As matters currently stand, Google’s position is that google.com is not caught by the judgment. This has the result that users within Europe can potentially avoid all the amnesiac effects of the Google Spain judgment simply by setting their default browsers to google.com. Evidently the ICO regards this as an illegitimate loophole which Google should now look to close.

In terms of the wider question of whether the CJEU’s judgment in Google Spain had had a damaging effect on the internet as a whole, Mr Smith made clear that in his view that this was not the case. He pointed out that Google had now delivered important results for data subjects in hundreds of thousands of cases. By way of contrast, he said the ICO had received only a handful of complaints about deletion. Mr Smith pointed out that obviously the introduction of the right to be forgotten regime had not resulted in the internet grinding to a halt, and that it had not sounded the death-knell of Article 10 rights. Instead, what it had done in his view was deliver real tangible results for data subjects in a wide range of cases. As Mr Smith put it, what the judgment in Google Spain had achieved was the practical recognition within the online world of important human values, including values relating to the autonomy of the individual and the need for forgiveness.

Additionally Mr Smith made clear that, whereas once the ICO’s voice may not have been seen as an important voice in litigation on data protection issues, now the ICO was increasingly being recognised by the courts as an important contributor in legal debates on those issues. He used the ICO’s involvement in the recent case of Vidal-Hall as an illustration of this important development. As Mr Smith put it the effect of these developments was that the ICO could now be more active and assertive when it came to litigation on key data protection issues.

Finally, it is worth pointing out that Mr Smith, Mr Gencarelli and Mr Wiewiórowski all agreed that, so far as the concept of ‘personal data’ was concerned, the GDPR did not expand the existing definition. Instead, all it did was clarify the existing law, as adopted in the Directive. Notably, this is consistent with the approach taken to the definition by the ICO in the case of Vidal-Hall.

So much food for thought emerging from the conference. Incidentally, those who are interested in future IAPP events may like to note that the IAPP is holding its European Data Protection Congress in Brussels in December 2015. No doubt the congress will offer an important opportunity to debate some of the issues referred to above.

Anya Proops

ISPA-Daisy

April 28th, 2015 by Christopher Knight

It has been said in the recent past that FOIA is sexy. We at 11KBW know all too well how difficult it can be to maintain a constant level of supreme attractiveness. Like all sexy beasts, even FOIA can have a day on which even its own mother would struggle would struggle to describe it as worthy of a second glance. The decision of the Court of Appeal in The Independent Parliamentary Standards Authority v ICO & Leapman [2015] EWCA Civ 388 might be thought to be one of FOIA’s off-days.

For those avid readers who remember my post on the Upper Tribunal decision (here for those hard of sleeping), the issues will be vividly recalled. For everyone else, a short recitation may be useful.

Section 1 FOIA 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.

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, as did the FTT and the UT on appeal. IPSA appealed to the Court of Appeal. Mr Leapman, formerly of the Daily Telegraph, did not participate in the Court of Appeal, doubtless being otherwise engaged in his detention at Her Majesty’s pleasure for offences of rape and downloading child abuse images.

Richards LJ gave the only judgment and it is fair to say that while it is of practical importance, the issue does not stir the blood. Nonetheless, the Court remained awake long enough to dismiss the appeal on all grounds. On the main issue, Richards LJ agreed with the ICO. Information was to be construed broadly and there would be cases where it is necessary in practice to disclose the record itself in order to communicate the entirety of the information contained in it: at [36]. There was no collapse in the distinction between the record and the information contained within it. The request had not been for copies as opposed to the information, but rather for all the recorded information contained on the receipts/invoices. Without the copies themselves, there was an inevitable shortfall in the information provided: at [39]. Counsel for ISPA conceded that some presentational elements may reveal recorded information, and that, Richards LJ held, indicated that there was no clear line between presentational elements and recorded information, even if it was sometimes difficult to spot where the line was: at [43]. If something is on the face of the document it is more readily about the information itself, rather than the form of the record (whereas the weave of the paper would go only to the record): at [42]. What is important is that the material sought is informative in the sense that tells you something, which may be visual or linguistic: at [44]. The fact that such information may go to an assessment of genuineness is a factor (but not the only factor) in assessing whether it is relevantly informative, without infringing the motive-blind approach of FOIA: at [45].

IPSA also managed to achieve the seemingly challenging feat of advancing a ground even less enthralling than the meaning of information, namely the scope of the section 11 duty to communicate information by reasonably practicable means. Here Richards LJ indulged IPSA in dealing in full with an argument which failed at the first hurdle. Section 11 is not an aspect of the section 1 obligation on public authorities; it cannot cut down the twin duties in section 1 to confirm or deny, and to release subject to exemptions. Section 11 poses a separate, additional, duty where a preference as to the means of communication is specified: at [52]-[53]. Although unnecessary to do so, Richards LJ gave the tentative view that in the light of the informal nature of requests they should not be  interpreted like contracts (something of a relief to all one would imagine), and their interpretation was a question of fact, or at least a mixed question of fact and law: at [58]. The only point on which IPSA made any ground was one of total irrelevance, namely that had the analysis got to section 11(2), the wording of “in all the circumstances” was appropriately broad enough to encompass the cost consequences of future compliance, rather than limited to the consequences of responding  to the specific request.

So, three appeals later, we end at exactly the point we started; namely that the ICO’s DN was a model of sensible reasoning and common sense. Information includes visual aspects to a document which may be informative, even if they cannot be readily transcribed by a reluctant public authority. That does not mean FOIA is now a route of documentary disclosure, any more than the DPA is. But it does call for a holistic approach to the information in issue. It requires dealing with substance and appearance, taking the information as a whole and examining it carefully. Hang on… Maybe it is a little bit sexy after all.

Robin Hopkins appeared for the ICO.

Christopher Knight

Compensation for mere distress – news from across the pond

April 27th, 2015 by Anya Proops

Readers of this blog will doubtless be well aware of the recent landmark judgment of the Court of Appeal in Vidal-Hall & Ors v Google, where it was held that compensation is available for mere distress caused by  breach of data protection legislation. Interestingly, it is being reported today that the US Supreme Court will in due course be deciding a case on a similar issue, namely whether compensation is available where websites publish inaccurate data concerning individuals but the inaccuracy in the data causes no pecuniary loss. It appears that the issue will be considered by the Court in the context of a class action brought against an internet search engine that compiles publicly available data on people and lets subscribers view that information online – see further AP’s report on the case here. See also the Amicus Brief filed by Ebay, Facebook, Yahoo and Google in support of the appeal being brought by the ISE. That Brief, which rests heavily on in terrorem arguments, asserts not least that:

“Amici are concerned that this decision will substantially and improperly lower the bar for invoking the jurisdiction of federal courts, inviting abusive and costly litigation, including class actions seeking millions or even billions of dollars in statutory damages under FCRA [Fair Credit Reporting Act] and similar statutes. Amici are members of a rapidly growing and transforming technology industry that provides services to hundreds of millions of individuals each day. Users of amici’s services routinely conduct financial transactions, share information and content, and interact with people all over the world on platforms offered by amici. The services amici provide, the information they collect, and the interactions they facilitate arguably could be subject to laws that contain private rights of action and allow for statutory damages”

Of course, in the UK we have yet to see any comparable group litigation emerging in response to inaccurate data processed by data controllers. However, in the wake of Vidal-Hall, it can only be a matter of time before such cases are brought before the English Courts.

Anya Proops

Searching questions in the CJEU: the East Sussex County Council case

April 17th, 2015 by Timothy Pitt-Payne QC

When local authorities provide property search information, can they charge for doing so? On what legal basis? How should such charges be calculated?

A Panopticon post from February 2014 by Robin Hopkins explains the background. To summarise, at one time it was widely believed that the Local Authorities (England)(Charges for Property Searches) Regulations 2008 (“CPSR”) applied, allowing local authorities to charge by reference to staff costs, overheads, and the cost of maintaining information systems.   More recently, it has been recognised that such requests will largely fall within the Environmental Information Regulations 2004 (“EIR”). EIR regulation 8 allows reasonable charges to be imposed for making environmental information available, save that no charge may be imposed for permitting access to public registers or for examining the requested information in situ.

In East Sussex County Council v Information Commissioner and others the applicant requested answers to the questions in CON29, the Law Society’s standard property search form. The Council imposed a fixed charge (based on the CPSR approach) that took account of disbursements, staff time, overheads, office costs, and information system costs. The First Tier Tribunal had to determine whether the charge was permissible under EIR regulation 8. It referred a number of questions to the CJEU for a preliminary ruling on the construction of Directive 2003/4 (“the Directive), to which the EIR give effect.

The case has now been heard in the CJEU, and Advocate General Sharpston issued her opinion on 16th April 2015.

The case turns on the construction of Articles 5 and 6 of the Directive. Article 5(1) requires that access to any public registers or lists of environmental information, and examination in situ of such information, shall be free of charge. Article 5(2) then allows public authorities to charge for supplying environmental information on request, provided that the charge does not exceed a reasonable amount. By Article 6, Member States must provide for administrative and judicial review of public authorities’ decisions relating to access to environmental information.

The first question addressed is what is meant by “supplying” environmental information in Article 5(2). Advocate General Sharpston states that this means providing access on request, by giving such information to an applicant in the format that he specifies, in circumstances other than those set out in Article 5(1).

What constitutes a “reasonable amount” within Article 5(2)? Advocate General Sharpston refers to this term as having an autonomous EU law meaning. She sets out, in some detail, what this means in practice. She identifies four requirements. First, a reasonable charge is one that is set on the basis of objective factors that are known and capable of review by a third party. Secondly, the charge must be calculated regardless of the requester’s identity or purpose. Thirdly, the charge must be set at a level that does not dissuade people from seeking access or restrict their right of access. Fourthly, the charge must be appropriate to the reason why Member States are allowed to make this charge (that is, that a member of the public has made a request for the supply of environmental information), and must be directly correlated to the act of supplying the information.

What can such a charge include? It must be based on the costs actually incurred in connection with the act of supplying information in response to a specific request. Hence the charge cannot include database costs, or overheads such as heating, lighting, or internal services. However it can include the costs of staff time spent on searching for and producing the information requested, and the cost of producing it in the form requested.

It is permissible for national law to provide that a public authority must satisfy itself that a charge levied meets the reasonableness standard. However, Article 6(1) and (2) of Directive 2003/4 requires a Member State to ensure that there can be both administrative and judicial review of whether the public authority’s decision conforms with the autonomous EU law meaning of what is reasonable.

While the issue of search costs for property search information may not set the pulse racing, it is of real importance both for companies carrying on business in this area and for cash-strapped local authorities keen to recover whatever costs they can. It remains to be seen, of course, whether the CJEU will adopt the Advocate General’s opinion.

11KBW’s Anya Proops acted for the Information Commissioner in the proceedings before the CJEU.

The Secret(-ish) Diary of Andrew Lansley (aged 58 1/4)

April 8th, 2015 by Christopher Knight

Every election, the House of Commons loses some of its most popular and well-respected Members. This year, it is also losing Andrew Lansley, whose reforms whilst Secretary of State for Health have bought such unwavering support from all parts of the political spectrum. Happily, Mr Lansley kept a diary of his momentous period in office. Unhappily, a FOIA request was only made for his Ministerial diary, which records the Secretary of State’s meetings etc, a redacted version of which was released in response to the request. The ICO ordered most of the withheld information to be released, and that was broadly echoed by the First-tier Tribunal in Department of Health v ICO (EA/2013/0087), on which see here, in rejecting reliance on s35(1)(a), (b) and (d) FOIA.

The DoH appealed, and Charles J has now handed down judgment in Department of Health v ICO & Lewis [2015] UKUT 159 (AAC). The appeal was dismissed. There are a number of points of interest in the judgment, not least:

  • There is a strong public interest in the press and public having the right, subject to appropriate safeguards, to require public authorities to provide information about their activities: at [10]-[12].
  • It is unusual to see a judge refer to his own experience as Treasury Counsel in the development of the law (on public interest immunity): at [18].
  • Disclosure under FOIA should be approached on a contents, specific information, basis and not a class basis: at [19]-[21].
  • It is right to avoid suggestions of inherent weight (on which see my post here): at [22]-[24].
  • A contents based assessment must show that the actual information is an example of the type of information within the class description of an exemption and why the manner in which disclosure of its contents will cause or give rise to risk of actual harm to the public interest, and evidence which does not address this is flawed: at [29]-[30].
  • Although generic reasons in support of the public interest may be inevitable, and are not irrelevant, attempts should be made (particularly by the ICO) to identify specific public interests engaged in support of disclosure: at [35]-[38].
  • Oral evidence can be useful, particularly where it tests credibility rather than reasoning, but the FTT should ask in each case whether it is needed, why it is needed, what limitations should be placed on it and whether other parties should also give evidence: at [41]-[42], [45].
  • Senior civil servants may be taking a line that there should be transparency but only on departmental terms, and their evidence often warrants a ‘Mandy Rice Davies’ sidenote (i.e. he would say that, wouldn’t he): at [48].
  • A high degree of deference to either side is very unlikely to be appropriate when assessing the public interest balance; a thorough and critical analysis of the competing reasoning and analysis should be carried out. A judicious recognition of the extent of Government expertise (and Tribunal lack thereof) is appropriate, and proper weight should be given to the views of those who work in the field, but that does not equate to an approach whereby in an unusual case the FTT should accept the Departmental view unless it is irrational: at [57], [59]-[61], [63]-[67].
  • The FTT had rightly identified very considerable flaws in the Department’s evidence, such that a risk of harm could not be accepted: at [73]-[79], [81]-[82].
  • Charles J’s further reasons on matters not addressed by the witnesses pose clear difficulties for future attempts on the part of (particularly) Government witnesses to assert risk of harm from disclosure without specific evidence: at [80].
  • When considering whether information is held under s3(2)(a) FOIA (“otherwise than on behalf of another person”), the intention of Parliament in promoting the purpose of FOIA (first bullet above) means that University of Newcastle upon Tyne v ICO & BUAV [2011] UKUT 185 (AAC) is correct (see here) and that a predominant purpose approach between different types of information is incorrect: at [106].
  • Non-Ministerial appointments in the diary were supplied by the Minister to avoid clashes etc, and must be considered as part of the diary as a whole. There was a sufficiently direct connection between the content and the reason why the information was recorded by the Department for it to be held. Whether or not it remained held under FOIA might depend on whether it was still said to be exempt under FOIA (for non-s40 reasons). The diary remained held: at [114], [117], [119]-[121].

The judgment is a lengthy one, but contains more nuggets than a KFC bargain bucket (other purveyors of fried chicken are available). Our very own secret blend of eleven herbs and spices, Robin Hopkins, appeared for the ICO.

Christopher Knight

Evans Vetos Badger Trust?

March 29th, 2015 by Christopher Knight

The world is full of obvious things which nobody by any chance ever observes.” Sherlock Holmes, The Hound of the Baskervilles.

What else can there possibly be to say about Evans not covered in Robin’s excellent post from Thursday? One can contemplate the possible amendments the Government might make (how much clearer could Parliament have made the purpose of section 53), and what other changes might be made at the same time, especially in the light of the PM referring to FOIA as one of the “buggerations” of Government in the Times magazine yesterday. One can analyse the dissenting judgments, which is certainly worthy of time. One can remark again on the constitutional importance of the Supreme Court emphasising the rule of law.

Most information law practitioners probably think there isn’t really anything in Evans that is going to be very relevant to their daily lives. Even central Government FOIA officers have onlyseen seven vetos in ten years, so Evans isn’t going to make much of a practical difference.

But. Almost in passing, there is one passage in the judgment of Lord Neuberger (if not the majority judgment, at least the leading judgment) which is worthy of notice.

As has been previously pointed out on this blog, the Upper Tribunal in Defra v ICO & the Badger Trust [2014] UKUT 526 (AAC) set the cat amongst the FOIA pigeons (if that is not too much of a mixture of animal metaphors) by suggesting at [44]-[48] that it was an open question whether the public interest balance was to be assessed at the time of the request/response or afresh at the time of the Tribunal hearing. That baton is now being taken up in the  latest round of the interminable APPGER litigation.

However, it is possible that the Supreme Court has beaten them to it. The time of the assessment of the balancing exercise was a point of some relevance to the reasoning of Lord Neuberger, because a (powerful) objection to the reasoning of the Court of Appeal (including from me) was that the two permitted exceptional categories, particularly the reliance on fresh evidence, did not leave much room for application of the veto where the public interest was adjudged at or around the time of the request. Lord Neuberger, unlike the Court of Appeal, sought to address the point. In doing so, he noted at [72] that:

It is common ground, in the light of the language of sections 50(1), 50(4) and 58(1), which all focus on the correctness of the original refusal by the public authority, that the Commissioner, and, on any appeal, any tribunal or court, have to assess the correctness of the public authority’s refusal to disclose as at the date of that refusal.”

As the text sets out, no contrary point was argued, but Lord Neuberger does not express any dissent about it and sets out the legal basis for it in the statutory language. Moreover, he went to reiterate the point, and the exceptions to it, at [72]:

However, although the question whether to uphold or overturn (under section 50 or sections 57 or 58) a refusal by a public authority must be determined as at the date of the original refusal, facts and matters and even grounds of exemption may, subject to the control of the Commissioner or the tribunal, be admissible even though they were not in the mind of the indivdual responsible for the refusal or communicated at the time of the refusal to disclose (i) if they existed at the date of the refusal, or (ii) if they did not exist at that date, but only in so far as they throw light on the grounds now given for refusal“.

It is difficult to see how the obiter musings of the Upper Tribunal in Badger Trust can withstand this, fairly prolonged, piece of Supreme Court reasoning. Arguments may be made that it was common ground, and possibly that was obiter itself, but it will self-evidently persusive that such experienced and eminent counsel agreed such a standpoint, and that the leading judgment relies upon it.

Perhaps the debate door is shut only shortly after being opened? Perhaps Evans has something to say to FOIA lawyers outside the scope of the veto power after all? Perhaps, perhaps, perhaps…

Christopher Knight

PS A prize (kudos only though) for the first person to spot the link between opening and closing of this post.