Yet more on Article 10 ECHR and FOIA

July 3rd, 2013 by Robin Hopkins

The question of whether the right to freedom of expression conferred by Article 10 of the European Convention on Human Rights has a bearing on the Freedom of Information Act 2000 (particularly as regards absolute exemptions) is an interesting and important one. The Supreme Court will address it later this year in the Kennedy litigation.

In the meantime, there is free expression aplenty on this issue within the Panopticon fold. Joseph Barrett’s post of earlier today is not the only example; Christopher Knight’s recent piece in Public Law is a must-read. The reference is: CJS Knight, ‘Article 10 and a Right of Access to Information’ [2013] PL 468.

Robin Hopkins

Redacting for anonymisation: Article 8 v Article 10 in child protection context

December 13th, 2012 by Robin Hopkins

Panopticon has reported recently on the ICO’s new Code of Practice on Anonymisation: see Rachel Kamm’s post here. That Code offers guidance for ensuring data protection-compliant disclosure in difficult cases such as those involving apparently anonymous statistics, and situations where someone with inside knowledge (or a ‘motivated intruder’) could identify someone referred to anonymously in a disclosed document. The Upper Tribunal in Information Commissioner v Magherafelt District Council [2012] UKUT 263 AAC grappled with those issues earlier this year in the context of disclosing a summarised schedule of disciplinary action.

Redaction is often crucial in achieving anonymisation. Getting redaction right can be difficult: too much redaction undermines transparency, too much undermines privacy. The Court of Appeal’s recent judgment In the matter of X and Y (Children) [2012] EWCA Civ 1500 is a case in point. It involved the publication of a summary report from a serious case review by a Welsh local authority’s Safeguarding Children Board. The case involved very strong competing interests in terms of Article 8 and Article 10 ECHR. For obvious reasons (anonymity being the key concern here) little could be said of the underlying facts, but the key points are these.

A parent was convicted in the Crown Court of a serious offence relating to one of the children of the family (X). The trial received extensive coverage in the local media. The parent was named. The parent’s address was given. The fact that there were other siblings was reported, as also their number. All of this coverage was lawful.

The local authority’s Safeguarding Children Board conducted a Serious Case Review in accordance with the provisions of the Children Act 2004 and The Local Safeguarding Children Boards (Wales) Regulations 2006. Those Regulations require the Board to produce an “overview report” and also an anonymised summary of the overview report. The relevant Guidance provides that the Board should also “arrange for an anonymised executive summary to be prepared, to be made publicly available at the principal offices of the Board”.

Here two features of the draft Executive Summary were pivotal.

First, reference was made to the proceedings in the Crown Court in such a way as would enable many readers to recognise immediately which family was being referred to and would enable anyone else so inclined to obtain that information by only a few minutes searching of the internet.

Second, it referred, and in some detail, to the fact, which had not emerged during the proceedings in the Crown Court and which is not in the public domain, that another child in the family (Y), had also been the victim of parental abuse.

The local authority wanted to publish the Executive Summary, seeking to be transparent about its efforts to put right what went wrong and that it has learned lessons from X’s death. It recognised the impact on Y, but argued for a relaxtion of a restricted reporting order to allow it to publish the Executive Summary with some redactions. It was supported by media organisations who were legally represented.

The judge (Peter Jackson J) undertook a balance of interests under Articles 8 and 10. He allowed publication, with redactions which were (in the Court of Appeal’s words) “in substance confined to three matters: the number, the gender and the ages of the children.”

In assessing the adequacy of these redaction, the Court of Appeal considered this point from the judgment of Baroness Hale in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, at paragraph 33:

“In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations.”

Munby LJ thus concluded (paragraph 47 of this judgment) that “it will be a rare case where the identity of a living child is not anonymised”.

He recognised, on the other hand, that Article 10 factors always retained their importance: “there could be circumstances where the Article 8 claims are so dominant as to preclude publication altogether, though I suspect that such occasions will be very rare.”

On the approach to anonymisation through redaction, Munby LJ had this to say (paragraph 48):

“In some cases the requisite degree of anonymisation may be achieved simply by removing names and substituting initials. In other cases, merely removing a name or even many names will be quite inadequate. Where a person is well known or the circumstances are notorious, the removal of other identifying particulars will be necessary – how many depending of course on the particular circumstances of the case.”

In the present case, the redactions had been inadequate. They did not “address the difficulty presented by the two key features of the draft, namely, the reference to the proceedings in the Crown Court and the reference to the fact that Y had also been the victim of parental abuse” (paragraph 53).

Far more drastic redaction was required in these circumstances: to that extent, privacy trumped transparency, notwithstanding the legislation and the Guidance’s emphasis on disclosure. In cases such as this (involving serious incidents with respect to children), those taking disclosure decisions should err on the side of heavy redaction.

Robin Hopkins

 

Statutory bars on disclosure: don’t construe too widely

June 1st, 2012 by Robin Hopkins

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

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

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

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

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

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

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

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

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

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

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

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

Robin Hopkins

KENNEDY V IC AND CHARITY COMMISSION: COURT OF APPEAL DECIDES

February 21st, 2012 by Robin Hopkins

A quick update on today’s main FOI development: in May 2011, the Court of Appeal heard the case of Kennedy v IC [2011] EWCA Civ 367 (see the backstory here). It remitted the matter to the First-Tribunal to answer this question:

“Whether s.  32(2) of FOIA should in the circumstances be read down pursuant to s. 3 of the Human Rights Act 1998 and Article 10 of the ECHR, so that the exemption that it provides from disclosure of information ends upon the termination of the relevant statutory inquiry.”

In its “report” to the Court of Appeal in November 2011, the FTT answered yes to the above question (see here).

The matter returned to the Court of Appeal today. The Court decided that last week’s Supreme Court judgment in Sugar v BBC [2012] UKSC4 (analysed here) was determinative on the Article 10 point. It found for the Respondents, but gave leave to appeal to the Supreme Court. The Kennedy matter may therefore not yet have run its course.

No judgment from the Court of Appeal just yet – analysis to follow on Panopticon as soon as the judgment is available.

Robin Hopkins

NICK GRIFFIN IN THE TRIBUNAL: APPLICANT BLINDNESS, THE “JOURNALIST’S ROUTE” AND ARTICLE 10

February 10th, 2012 by Robin Hopkins

BNP leader Nick Griffin was convicted in 1998 for publishing material likely to stir up racial hatred. In 2009, Ian Cobain, an investigative journalist at The Guardian, requested sight of all Crown Prosecution Service papers relating to that prosecution. The Commissioner upheld its refusal. In Cobain v IC and Crown Prosecution Service (EA/2011/0112 & 0113), the Tribunal considered 3 exemptions, namely ss. 40(2), 32(1) and 30(1) of FOIA. For the most part, Mr Cobain’s arguments prevailed.

The decision is notable – indeed, essential reading – for a number of its key points. For example: when it comes to journalists requesting sensitive personal data, FOIA is not “applicant blind”. More generally, the decision affirms the importance of FOIA in facilitating investigative journalism. The approach to Article 10 ECHR from the Kennedy “report” is boldly affirmed. General guidance on s. 30(1) is set out. I’ll look at the key points from each exemption in turn. The decision is worth quoting in some detail.

Section 40(2) (personal data)

A number of important points emerge. First, in general, just because information emerged during evidence in a public trial, this does not mean it should automatically be disclosed under FOIA:

“Much of the information… was freely publicised at the trial in 1998… Where the public interest is engaged (as here where s. 30(1)(c) is invoked) it does not by any means automatically follow that such publication in the past determines the question of disclosure today. Most witnesses are entitled to expect that their exposure to public scrutiny ends with the conclusion of their evidence. Those who make statements do so in the expectation that, if not used at trial, they will not surface later.”

Secondly, just because information is in a prosecution file, it does not follow that it is necessarily personal data. The Commissioner was criticised for insufficiently granular analysis:

“It was clear that the broad and unparticularised approach adopted in the First Decision Notice could not be upheld. The fact that it is information held in a file assembled for the purposes of criminal proceedings against Mr. Griffin (see DPA s.2(g)) does not make it sensitive personal data, unless it is personal data in the first place.”

Some of the disputed information was therefore outside s. 40(2) because it was not personal data in the first place. Other information, however, was sensitive personal data. This meant that not only would the usual conditions need to be met (fairness, lawfulness, condition 6(1)) but a Schedule 3 condition was also mandatory. Those can be difficult to meet – unless you are a journalist. Condition 10 triggers the Data Protection (Processing of Sensitive Personal Data) Order 2000. This contains particular “lawful processing” conditions for the purposes of, among other things, journalism: see article 3 of the Order, which also imposes other conditions such as the disclosure being in the “substantial public interest” and “in connection with” issues such as “the commission of an unlawful act”. Paragraphs 31-33 of the Tribunal’s decision contain a useful summary of how the relevant provisions work.

This “journalist’s route” (my term, rather than the Tribunal’s) to obtaining sensitive personal data has been considered in a number of Tribunal decisions. In this case, it was given full effect:

 “Disclosure of the sensitive data would be “in connection with” the commission of an unlawful act (hence the conviction), seriously improper conduct and arguably Mr. Griffin`s unfitness for political office. It would be for the purpose of journalism, Mr. Cobain`s occupation, and would be intended for publication in his newspaper and possibly thereafter, in a book. Given the issues involved, namely racial and/or religious hatred and the right to express even extreme views, we find that disclosure would be in the substantial public interest. We do not consider that the passage of eleven years before the request renders disclosure unfair, or unwarranted by reason of prejudice to Mr. Griffin`s interests nor likely to cause substantial damage or distress to him. In making that judgement we have regard to Mr. Griffin`s age ( 50 at the date of the request, 39 at the date of trial), his continuing political prominence and his apparent claim to be an educated, reasonable and responsible MEP and party leader who has rejected any racial extremism formerly associated with his party.”

How does this “journalist’s route” square with the usual “applicant blindness” FOIA principle? The ICO argued that the latter prevails, such that the former only applies to pure DPA cases, not to FOIA ones. It emphasized the wording of s. 40(3)(a): disclosure to “a member of the public otherwise than under [FOIA]”. It argued that the average member of the public is the reference point for a FOIA disclosure. The average member of the public is not a journalist. The “journalist’s route” therefore has no place in FOIA.

The Tribunal disagreed (as the First-Tier Tribunal has done on a number of occasions now). It relied on the Upper Tribunal’s judgment in the APPGER case on this point, and said that:

 “… a requester who fulfils one or more of the schedule conditions is also a member of the public ( and is not the data processor ) who is receiving the information under FOIA. If this were not so, FOIA would be a valueless tool for the serious researcher, journalist, writer, politician or scholar seeking to investigate serious wrongdoing within the preceding thirty years. If that were the case, it would be reasonable to ask whether FOIA was worth enactment.”

The effect in this case was that s. 40(2) did not apply at all.

Section 32 (court records)

Next, the CPS relied on s. 32, the ambiguous wording of which has opened the door for Article 10 ECHR arguments: see the Kennedy v Charity litigation (Panopticon passim) in which the First-Tier Tribunal’s “report” on the application and effect of Article 10 on s. 32 will be considered by the Court of Appeal later this month. The Tribunal in Cobain wholeheartedly adopted the Kennedy report:

“We adopt with gratitude and respect the very careful reasoning of the report on this issue, which we believe accurately states the law as to Article 10 as recently developed… We do not doubt that s. 32(1) can be read down in a way which is consistent with Article 10. We consider that limiting the restriction in [s. 32(1)] so that it ends once a reasonable time has elapsed after the exhaustion or evident abandonment of the available appeal process would avoid a breach of Article 10.”

Consequently, s. 32 was not available as a ground for refusal in this case.

The Article 10 issue is obviously of enormous importance to the interpretation of FOIA – particularly, but not exclusively for journalists. As things stand, the role of Article 10 is uncertain. At least two other First-Tier Tribunals have heard or will hear argument on it this month (in the contexts of ss. 23, 40(2) and 41); the Court of Appeal will consider it in two cases this month, and the Supreme Court gives judgment in Sugar v BBC next week. Watch this space.

Section 30(1) (investigations)

In the context of this case, this exemption was “unarguably” engaged. The Tribunal made the following observations about the public interest in maintaining this exemption:

“The Tribunal acknowledges the substantial public interest in many circumstances in protecting from disclosure information gathered for the purposes of a criminal case, including the need to offer informants and witnesses protection from public exposure and a prosecuting authority a proper space in which to discuss and decide issues that arise.”

As against that, it said this about the public interest in disclosure:

“On the other hand, the public has a legitimate interest in criminal investigations and resulting court proceedings, especially where the defendant was a prominent political figure charged with an offence of great current importance in proceedings that he was keen to publicise. The passage of time is also a consideration. Legitimate public interest in such a case continues due to the profile of the defendant but the risk of any impact on the resulting proceedings disappeared long ago. More importantly, the relevant information in this appeal does not include statements from potentially vulnerable witnesses or highly sensitive material”.

The Tribunal therefore concluded that, in general, the public interest favoured the disclosure of the disputed information in this case, except for three categories which could properly be withheld.

On s. 30(1), this decision is a useful summary of the most relevant considerations. It is on ss. 40(2) and Article 10, however, that it has given a fresh boost to requesters.

Robin Hopkins

ABSOLUTE EXEMPTION AN UNJUSTIFIED INTERFERENCE WITH ARTICLE 10 ECHR

November 30th, 2011 by Robin Hopkins

Article 10 of the European Convention on Human Rights – the right to freedom of expression – has begun to make its presence felt in FOIA and EIR case law. For example, I have recently reported on Sinclair v IC and Department for Energy and Climate Change (EA/2011/0052), in which Article 10 was raised in the context of exceptions under the EIR, but was held not to make a difference. In particular, the First-Tier Tribunal in that case took the view that there was as yet no clear and consistent Strasbourg jurisprudence supporting Mr Sinclair’s reliance upon Article 10.

A differently constituted First-Tier Tribunal (FTT) has taken the opposite view. Readers may recall the unusual twist to the Court of Appeal’s decision of May this year in Kennedy v IC and Charity Commission [2011] EWCA Civ 367: Mr Kennedy requested information concerning the Charity Commission’s inquiry into the Mariam Appeal (founder: George Galloway). The CC refused, relying on the absolute exemption at s. 32(2) FOIA, which applies to documents created or held for the purposes of an inquiry or investigation. The crucial question of construction was this: does the exemption apply to past/closed investigations, or only to current/live ones? The Court of Appeal favoured the former, broader interpretation on conventional construction grounds, but was then persuaded that, given the ambiguity of the statutory language, Article 10 ECHR may have a bearing. It stayed the Court of Appeal proceedings and remitted the following question to the FTT for determination:

“Whether s.  32(2) of FOIA should in the circumstances be read down pursuant to s. 3 of the Human Rights Act 1998 and Article 10 of the ECHR, so that the exemption that it provides from disclosure of information ends upon the termination of the relevant statutory inquiry.”

Although it admitted to finding this a “daunting task”, involving “extremely complex analysis of human rights law more suited to higher courts”, the FTT has answered yes to the above question. This is not an FTT decision in the usual sense. Rather, the FTT’s recent determination in Kennedy v Charity Commission (EA/2008/008) is a (perhaps) unprecedented legal specimen, namely a “report to the Court of Appeal”.

The FTT began its report by noting the case law on the importance of the media in a modern democracy.

It then considered the crucial issue of whether Article created a general right to receive information from public authorities. The task for a domestic court (see Ambrose v Harris of 2011, per Lord Hope) is to “identify “as best it can where the jurisprudence of the Strasbourg court clearly shows that it stands on the issue.”

By way of simplified synopsis of the FTT’s survey of Strasbourg jurisprudence on whether Article 10 creates a general right of access to receive information: a number of Strasbourg authorities – Leander v Sweden, Gaskin v UK, Guerra v Italy, Roche v UK – have said no. In other more recent cases – Társaság v Hungary, Kenedi v Hungary – the court appears to have said yes. In the FTT’s view, recent Court of Appeal decisions in the UK – A v Independent News & Media, BBC v Sugar (No 2) – suggest that the latter has crystallised into a new Strasbourg stance, and the recent Divisional Court decision in R(Guardian News & Media) v City of Westminster Magistrates’ Court did not cast doubt on that general drift.

The FTT summed up its conclusions thus:

“As best we can the FTT considers that this developing jurisprudence is not necessarily granting a general right to receive information under Article 10. Such a general right of access still only exists as set out under Leander. It has advanced, however, towards a broader interpretation of the notion of freedom of information which has recognised an individual right of access conferred by Article 10(1) but which is subject to certain “formalities, conditions, restrictions or penalties” described in Article 10(2). This may be where a social watchdog is involved and there is a genuine public interest as in Társaság or where historical research is being hindered on a matter of public importance as in Kenedi. It appears to us that this extension of scope of Article 10(1) is now being consistently applied and recognised by a number of chambers of the ECtHR. Our Court of Appeal has also recognised this as a clear development. In our view this has not led to a general right to receive information as that would be going too far. However it is now clear that the ECtHR has developed a wider approach from that first established in 1978 to the notion of “freedom to receive information”. There is now recognition of an individual right of access to information in certain circumstances.”

The FTT did not decide whether or not a prerequisite for Article 10 is the public authority’s having a “monopoly” over that information – the CC had such a monopoly in these circumstances in any event.

As Mr Kennedy represented a “social watchdog”, his right under Article 10(1) was engaged, and the absolute exemption at s. 32(2) (if interpreted to extend beyond the duration of the inquiry) was an interference with that right.

The FTT also decided that this interference could not be justified in these circumstances. Although the exemption pursued a legitimate aim, it was a disproportionate interference. It observed that where a social watchdog is involved, any balancing of interests is more likely to weigh in favour of individual rights. It expressly rejected the proposition that this outcome could only arise where applicants are journalists.

Finally, the FTT decided that this unjustified interference was to be remedied by the following interpretation: “by limiting s 32(2) to documents held by inquiries that have not concluded, Mr Kennedy’s Article 10 rights will not be interfered with in a disproportionate way”.

What now? The hearing will be resumed in the Court of Appeal, which will have the benefit of the FTT’s report. Panopticon can also confirm that there a number of other cases dealing with other absolute exemptions currently in the court and tribunal systems which will consider the application of Article 10. The FTT’s “report” in Kennedy therefore does not represent a settled position. It is, however, a very interesting twist.

Rachel Kamm appeared for the Charity Commission in the FTT.

Robin Hopkins

AGGREGATION AND ARTICLE 10 IN THE FIRST-TIER TRIBUNAL: NEITHER NEEDED

November 8th, 2011 by Robin Hopkins

Sinclair v IC and Department for Energy and Climate Change (EA/2011/0052) concerned a request under the EIR from the Taxpayers’ Alliance for information on the potential financial and/or economic cost of Britain meeting a pledge to cut emissions by 42 per cent from 1990 levels by 2020. This pledge had been considered in connection with the Copenhagen Conference on climate change in 2009.

DECC refused this request, relying on regulations 12(5)(a) (disclosure would adversely affect international relations) and 12(4)(e) (internal communications).

In one of the first applications of the “aggregation” approach to the public interest test approved by the ECJ in the OFCOM case (on which, see here), the Commissioner held that the composite aggregated weight of the public interest factors in maintaining the two exceptions outweighed those which favoured disclosure – the international relations exception alone would not have sufficed.

The Tribunal was sufficiently impressed by DECC’s evidence to conclude that aggregation was not needed – the public interest in maintaining the international relations exception was sufficient to outweigh that in disclosure.

Interestingly, the Tribunal also considered an Article 10 ECHR argument: the appellant relied on that Article in support of his right to the requested information. The Tribunal found that Article 10 did not assist the appellant on the facts of his case. Its views on the application of Article 10 to information rights more generally was as follows.

In terms of authorities supporting the application of Article 10 to information rights, the high point was the Second Chamber decision in the ECtHR in Társaság a Szabadságjogokért v Hungary (Application no. 37374/05), in which the state had conceded that Article 10 rights were engaged where a civil liberties pressure group requested information about a complaint to the Constitutional Court.

Previous Grand Chamber authorities, however, had consistently rejected the proposition that Article 10 supported a right of access to official information.

The Tribunal is required to follow any clear and consistent Strasbourg jurisprudence. It found that “there is as yet no clear decision that Article 10 extends as far as Mr Sinclair submitted”.

11KBW’s Holly Stout appeared for the Information Commissioner.

Robin Hopkins