Legal professional privilege does not automatically engage an EIR exception

May 6th, 2014 by Robin Hopkins

FOIA provides an exemption (s. 42) expressly for legal professional privilege; as is well known, there is ‘strong inherent weight’ in maintaining that exemption. What about the EIRs? LPP is not expressly mentioned, but regulation 12(5)(b) EIR applies to information the disclosure of which would adversely affect “the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature”. Does information attracting LPP automatically come within that exception? Many practitioners operate on the assumption that the answer is ‘yes’. The Upper Tribunal has on a previous occasion, however, left that question open: DCLG v IC and Robinson [2012] UKUT 103 (AAC); [2012] 2 Info LR 43.

That question has recently been revisited. In GW v IC, Local Government Ombudsman and Sandwell MBC [2014] UKUT 0130 (AAC), the Upper Tribunal answered ‘no’: just because LPP applies, it does not automatically follow that regulation 12(5)(b) EIR is engaged. Further analysis is needed – and the onus is on the public authority to make out its case on adverse effects on the course of justice etc.

The requester has complained to the Council about what was being emitted from the chimneys of two of his neighbours who were using wood-burning stoves. The Council obtained written legal advice from counsel. It told the requester it could not progress his complaint as he wished. He complained to the Ombudsman. The Council shared its legal advice with the Ombudsman, expressly on a confidential basis. The requester sought that advice from the Ombudsman. His request was refused. The IC’s decision went against him. So too did that of the First-Tier Tribunal.

The Upper Tribunal, however, found that the FTT went wrong in attributing too much weight to the prejudicial effects which it thought likely to arise “simply through the weakening of this important doctrine” [of LPP].

UT Judge Turnbull considered the wording of regulation 12(5)(b) EIR and said this: “In my judgment that requires attention to be focused on all the circumstances of the particular case, and there is no room for an absolute rule that disclosure of legally privileged information will necessarily adversely affect the course of justice”.

The crux, in his judgment was this: “What particularly matters for present purposes is in my judgment that the rationale for the doctrine and its absolute nature is established as being the need for the client to be able to obtain legal advice on a full and frank basis”.

In the present case, disclosure would be unlikely to prejudice that underlying principle – the Council’s ability to obtain free and frank advice would not be impeded. “What might be damaged would be not the course of justice but the ability of the LGO to conduct future investigations on a fully informed basis” – but that was a different point to the one at the heart of the FTT’s reasoning. The FTT had thus gone wrong in its public interest analysis.

Interestingly, one factor in the UT’s reasoning appears to have been that it was not taken to “any particular part or feature of the Advice which the Council would be unhappy about disclosing, or pointed to any specific concern which it has about Mr W or the public in general seeing it. Nor has it been suggested, for example, that the Advice needs to be qualified because of some inaccuracy or incompleteness in the instructions to counsel. The weight to be accorded to the adverse effect on the course of justice in this case is in my judgment very substantially less than it would have been if the LGO had been able to rely on the weakening of the doctrine of LPP which compulsory disclosure of legal advice will almost always involve”. This offers useful indications of what, in this UT’s view, might suffice to engage regulation 12(5)(b) EIR in respect of information which attracts LPP.

The public authorities also sought to rely on regulation 12(5)(d) EIR (confidentiality of proceedings). By regulation 12(9), however, that exception cannot be relied upon “to the extent that the environmental information to be disclosed relates to information on emissions”. Did that disapplication provision bite here? No, said the UT: “In substance the Advice did not “relate to” information as to the particular nature and extent of those emissions, but rather it related to the meaning and effect of the legislation”. In this case, regulation 12(5)(d) EIR was engaged.

Turning to the public interest balance, a preliminary point addressed by the UT concerned timing: matters post-dating the statutory time for compliance with a request can only properly be taken into account to the extent that they shed light on matters as they stood up to that time, or if they are relevant to the IC’s ‘steps discretion’ under s. 50(4) FOIA. They are not otherwise relevant to the public interest balance.

What might count in favour of the disclosure of privileged information? “In my judgment, therefore, when considering this issue it is relevant to consider not only whether the Council (and/or the LGO) made statements which were positively wrong, but whether they made statements which were liable to mislead or confuse the reader, and so have generated a confusing picture as to the effect of and reasoning behind the Advice”.

In this case, while there was no intention to mislead, “the combined effect of the information which the LGO and the Council had given up to this point was liable to create substantial confusion, in the mind of any reasonable reader, as to what the Advice did say”.

As to the public interest in maintaining the exception, the main factor was “the effect which disclosure would have on the ability of the LGO to obtain legally privileged information from local authorities on the footing that it should remain confidential” – especially given that the Ombudsman cannot compel local authorities to share such information with it. There would thus be a chilling effect on such information-sharing.

In contrast, the unfairness to the Council of having its legal advice shared with the requester was a relatively weak factor.

Overall, however, the balance very firmly favoured the maintenance of the exception. In this case therefore, the likely damage to the LGO’s work prevailed where LPP had not.

Robin Hopkins @hopkinsrobin

Property searches under the EIRs: Tribunal refers questions to the CJEU

February 13th, 2014 by Robin Hopkins

The ability to impose charges for the provision of property search information is an important financial issue for many local authorities. Historically it had been thought by many that the imposition of such charges was governed by the Local Authorities (England) (Charges for Property Searches) Regulations 2008 (“CPSR”), which allow local authorities to recover all the costs of making such information available (including staff costs, overhead costs and the costs of maintaining relevant information systems). However, in recent years there has been an increasing awareness of the fact that requests for property search information to a large extent amount to requests for access to environmental information, such that they call for an application of the charging regime provided for in r. 8 of the Environmental Information Regulations 2004. The CPSR itself specifically provides that it does not apply to the provision of any information which is governed by other statutory charging regimes. Accordingly, it would seem that the CPSR is inapplicable in respect of requests for property search information insofar as those requests are made under the EIR.

Regulation 8 EIR allow reasonable charges to be imposed for making environmental information available, save that no charge may be imposed for permitting access to public registers or examining the requested information in situ. The question of when a public authority can impose charges and also what will constitute a reasonable charge has now been considered by the tribunal in a number of different cases, all of which concerned requests for property search information (see e.g. Kirklees Council v IC & Pali Ltd [2011] UKUT 104 (AAC) and also East Riding of Yorkshire v IC).

Earlier this year, in Leeds City Council v IC & APPS Claimants (EA/2012/0020-21); [2013] 1 Info LR 406, the First-Tier Tribunal was asked to decide whether, when making environmental information available other than by means of inspection or through public registers, the local authority was entitled under r. 8 to charge only for disbursements (the Commissioner’s case) or whether other costs, such as the cost of staff time spent searching for the requested information and overhead costs, could be factored into the charge (the Council’s case). Having carefully considered not only r. 8 but the provisions on charging in the Directive on Public Access to Environmental Information (“the Directive”), the FTT concluded that public authorities could only charge in respect of disbursement costs. It also held that Leeds had erred in determining the charge by reference to the CPSR. Leeds initially sought and was granted permission to appeal against the decision. However, the appeal was not pursued. Notably, the Commissioner argued before the FTT in the Leeds case that the question of what would constitute a lawful charge could not satisfactorily be resolved without a reference to the Court of Justice of the European Union. That argument was not supported by Leeds or the APPS claimants. The FTT decided that it could resolve the appeal without a reference and so none was made.

These issues have now resurfaced before the First-Tier Tribunal in East Sussex County Council v IC & Property Search Company & the Local Government Association (EA/2013/0037), another property search case. In this case, the applicant requested answers to questions in the standard property search form issued by the Law Society, the CON29R form. The Council imposed a fixed charge for providing this information, the fixed charge having been calculated on the basis of the approach provided for in the CPSR (i.e. was a charge which was intended to produce a cost neutral result for the Council). The charge itself factored in not only disbursement costs, but also staff time, a portion of the Council’s overhead costs, office costs and a portion of the costs of maintaining the information systems from which the relevant information is derived.

In light of an analysis of preparatory legislative materials for the Directive, the Commissioner conceded that costs beyond mere disbursement costs could in principle be factored into the charge. In particular, he argued that staff time spent searching for the information could be included. However, he disputed that other costs (e.g. overheads, office costs and the costs of maintaining the relevant information systems) could lawfully be included. However, the Commissioner’s position before the FTT was that, notwithstanding his concession, there remained substantial uncertainty as to what constituted a permissible charge under the Directive and a reference to the CJEU was still warranted. The other parties to the appeal ultimately agreed that this was an appropriate course.

The FTT has now decided that there should be a reference for a preliminary ruling. The questions being referred are:

(1) What is the meaning to be attributed to Art 5(2) of Directive 2003/4/EC and in particular can a charge of a reasonable amount for supplying a particular type of environmental information include:

(a) part of the cost of maintaining a database used by the public authority to answer requests for information of that type;

(b) overhead costs attributable to staff time properly taken into account in fixing the charge?

(2) Is it consistent with Arts 5(2) and 6 of the Directive for a Member State to provide in its regulations that a public authority may charge an amount for supplying environmental information which does “… not exceed an amount which the public authority is satisfied is a reasonable amount” if the decision of the public authority as to what is a “reasonable amount” is subject to administrative and judicial review as provided under English law?”

Hopefully the CJEU will in due course agree to give a preliminary ruling. In the meantime, local authorities and those engaged in the property search industry will have to wait with baited breath.

Anya Proops acts for the Information Commissioner.

Robin Hopkins @hopkinsrobin

Chagos Refugees Group in the First-Tier Tribunal: some key points

September 24th, 2012 by Robin Hopkins

The Chagos Archipelago forms part of the British Indian Ocean Territory (“BIOT”). In the late 1960s and early 1970s, the inhabitants of the Chagos Islands were required to leave those islands. At or around that time, a US military base was established on Diego Garcia, the largest of the Chagos Islands. The removal of the “Chagossians” has been a matter of considerable political and media debate, as well as complex legal proceedings. Two legal challenges are ongoing: Chagos Islanders v UK before the European Court of Human Rights, and Bancoult (No 3) before the domestic courts.

In 1999, the then Foreign Secretary commissioned a feasibility study concerning the possible resettlement of some of the islands. A preliminary study was conducted, followed a “phase 2B” study conducted by external consultants. The final report of the phase 2B study was made public. There was some ministerial correspondence about the studies.

In April 2010, representatives of the Chagossians sought information from the Foreign & Commonwealth Office about these studies. In particular, they asked for any draft versions of the phase 2B study (and any accompanying reports), as well as related ministerial correspondence.

The FCO disclosed some information, but withheld one note to a minister (Baroness Amos). As regards the draft reports, it claimed that – if these existed at the time of the request – they were held by the external consultants who authored them. The FCO maintained that the consultants did not hold that information “on behalf of” the FCO for the purposes of the Environmental Information Regulations 2004. The Commissioner upheld the FCO’s position.

The Tribunal (chaired by Andrew Bartlett QC) upheld the Chagossians’ appeal in part. A disclaimer to the following analysis: I appeared for the Information Commissioner. The post below is not a commentary on the case, but (with my Panopticon hat on) I highlight some of the points of general interest to FOIA and EIR practitioners. For a broader commentary on the case, see the excellent post from David Hart QC on One Crown Office Row’s UK Human Rights Blog.

The Tribunal in Chagos Refugees Group in Mauritius and Chagos Social Committee (Seychelles) v IC and FCO (EA/2011/0300) agreed with the FCO that information held by the consultants was not, at the date of the request, held “on behalf of the FCO” for EIR purposes. The Tribunal applied the guidance on the approach to “held” from University of Newcastle v IC and BUAV [2011] UKUT 185 (AAC), [2011] 2 Info LR 54 (see paragraphs 59-67). Generally, whether information is “held” will be a question of fact, but the Tribunal added that “we would also wish to qualify the proposition in McBride v IC and Ministry of Justice (EA/2007/0105) that whether information is held on behalf of a public authority is “simply a question of fact”. In some cases it will be important to determine the exact nature of the legal relationship between a person holding information and the public authority, or to determine the legal structure pursuant to which information was created and held” (paragraph 61).

The Tribunal analysed both the factual and legal relationship between the FCO and the consultants in reaching its conclusion. Its decision should be given careful attention when considering whether information is “held on behalf of” a public authority.

On the adequacy of the FCO’s own searches, the Tribunal said this at paragraph 70:

“… we consider it is relevant to draw attention also to the Tribunal’s remarks in the context of a FOIA request in Muttitt v IC (EA/2011/0036) (31 January 2012) at [68], to the effect that a search should be conducted intelligently and reasonably, and that this does not mean it should be an exhaustive search conducted in unlikely places: those who request information under FOIA will prefer a good search, delivering most relevant information, to a hypothetical exhaustive search delivering none, because of  the cost limit.”

As to the Baroness Amos note, the Chagossians were largely successful in their appeal: disclosure was ordered, bar a few redactions. In its analysis, the Tribunal considered the time at which the public interest was to be assessed. It has become almost trite in FOIA and EIR cases that the answer to this question is “at the time of the request or, at the latest, the date at which the public authority ought to have responded”. This question is, however, not altogether settled. In this case, the Tribunal was content to assess matters up to the date of the conclusion of the FCO’s internal review (see paragraphs 22-29). On a similar point, the UpperTribunal in Evans (see my earlier post on this) by no means considered it beyond doubt that matters should only be assessed at or shortly after the date of the request.

The Tribunal considered that weighty public interests would be served by disclosure of the contents of the Baroness Amos note, despite that being only a small amount of information. At paragraph 112 it said this:

“The amount of information in a potentially disclosable document is without doubt a material matter to take into account. At the same time, it is important not to discount unduly the significance, in the public interest, of the disclosure of small amounts of information. Publicly useful freedom of information requests are generally limited in scope. If too broad, they face the obstacle under FOIA of the costs limit, and under the EIR of the proportionality requirement. If the Tribunal were to take an unduly minimalist view of the value of the publication of relatively small amounts of information on matters of considerable legitimate public interest, this would materially reduce the effectiveness of the legislation. We would regard this as tending to conflict with the general purpose of  the legislation, as seen in the authoritative remarks in Sugar v BBC [2012] UKSC 4 at [76]-[77], which in our view apply with equal force to the EIR, particularly in view of the presumption in favour of disclosure found in EIR regulation 12(2).”

This outweighed the public interest in maintaining the exception for internal communications. Timing was key to the ‘safe space’ argument advanced by the FCO and the Commissioner. The Tribunal endorsed the approach taken in the Department of Health (NHS risk registers) case, whereby policy formulation can “dip in and out” of the need for a safe space. The Tribunal in this case concluded that (paragraph 123):

“We acknowledge the prospect that at some future date – perhaps in 2013, perhaps later – after the final conclusion of the two pending pieces of litigation, the resettlement policy is likely to be the subject of reconsideration. In our view that was at all material times, and remains today, a very weak reason for maintaining the confidentiality of a document written in entirely different circumstances in 2002.”

Robin Hopkins

HRH the Prince of Wales: advocacy of an ordinary man

September 19th, 2012 by Robin Hopkins

The Upper Tribunal’s judgment in Evans v IC and Others (Seven Government Departments) [2012] UKUT 313 (AAC) (Mr Justice Walker, Professor John Angel and Suzanne Cosgrave), handed down yesterday, has received extensive media coverage – unsurprisingly so, given the subject matter (Prince Charles’ correspondence with government departments) and the requester (Rob Evans of the Guardian). The judgment is stupendously long (65 pages, plus 3 open annexes). Here are the salient points.

The issues

Mr Evans made requests in April 2005 for correspondence between Prince Charles and seven government departments. Crucially, this was confined to correspondence involving “advocacy” on the part of Prince Charles, i.e. information on (a) “identifying charitable need and setting up and driving forward charities to meet it”, and/or (b) the promotion of Prince Charles’ views on various issues. It was described as “argumentative correspondence”. The interaction with government first revealed in the Prince Charles-approved biography by Jonathan Dimbleby published in November 1994.

Disclosure was refused on the basis of a number of exemptions under FOIA: ss. 37(1) (communications with Her Majesty, with other members of the Royal Family or the Royal Household), 40(2) (presonal data) and 41 (actionable breach of confidence). Insofar as it comprised environmental information, the requested information was refused on the basis of reg. 12(5)(f) EIR (adverse affect on the interests of the person who provided the information).

The relevant date for the Upper Tribunal’s assessment was 40 days after Mr Evans’ requests for interal reviews of these refusals, i.e. 28 February 2006. At that stage, the relevant part of s. 37(1) was a qualified rather than an absolute exemption.

The Upper Tribunal found in Mr Evans’ favour with respect to all of the exemptions: the public interest favoured disclosure (in the case of the qualified and EIR exemptions), disclosure of the relevant personal data would not breach a data protection principle, and any action for breach of confidence would be defeated by a public interest defence.

The crucial issue: advocacy correspondence and the education/apprenticeship convention

The case for withholding the information was to stand or fall with the analysis of the relevant constitutional conventions (practices which are non-legal but fundamental to the UK’s parliamentary democracy) concerning communications between the monarchy and government. The Upper Tribunal analysed these conventions in depth, and addressed the crucial issue of the extent to which they were relevant to the “advocacy” correspondence in dispute.

Two conventions are extremely important. The cardinal convention is that the monarch acts on advice. The tripartite convention is that the monarch is entitled to be consulted, to encourage and to warn her ministers. The Upper Tribunal was satisfied that “there is ample reason to justify the principle that the internal operation of these two conventions is not revealed, at least until after a long time has passed” (paragraph 87). These two conventions, however, apply only to the sovereign – not to the heir.

The pivotal convention relied on in this case was the “education convention”, whereby the heir to the throne is to be instructed in the business of government. The Upper Tribunal preferred this label to the proposed alternative of “apprenticeship convention”: the latter term assumed what it had to prove, namely that Prince Charles was through the disputed correspondence practising the skills required of him when he becomes the sovereign, rather than some other skills. Also, the work of apprentices is overseen by masters; Prince Charles is thus not like an apprentice or, for that matter, a pupil barrister (the Upper Tribunal noted) insofar as he is conducting his advocacy correspondence.

Until relatively recently, the education convention was, in constitutional terms, “little more than a footnote” (paragraph 89). Nonetheless, it was important, and the Upper Tribunal’s judgment did not entitle Mr Evans to information caught by that convention.

The fundamental issue here was that, contrary to the case for the government departments (who advanced the novel case that the education convention encompassed all information of this kind) the advocacy correspondence did not come within the education convention. The Upper Tribunal considered that the alleged constitutionally-important confidentiality of such advocacy correspondence could not be reconciled with the disclosures in the Dimbleby biography.

Ultimately (paragraph 99):

“The plain facts are that what Prince Charles is doing is not prompted by a desire to become more familiar with the business of government, and simply is not addressing what his role would be as king…  they all have as their context Prince Charles’s strong belief that certain action on the part of government is needed.”

See also paragraph 106:

“… there is an overwhelming difficulty in suggesting that there is good reason for regarding advocacy correspondence by Prince Charles as falling within a constitutional convention… it is the constitutional role of the monarch, not the heir to the throne, to encourage or warn government. Accordingly it is fundamental that advocacy by Prince Charles cannot have constitutional status… the communication of encouragement or warning to government has constitutional status only when done by the monarch.”

The key conclusion: Prince Charles’ advocacy correspondence has no special status favouring non-disclosure

The Upper Tribunal was clear that, for Prince Charles as for anyone else seeking to advance charitable causes or promote views through correspondencw with government, such advocacy correspondence would generally be disclosable. See paragraph 7:

“Confidential interaction between government ministers and others, in a context where those others are seeking to advance the work of charities or to promote views, would generally be disclosable – especially where those others have privileged access to ministers. Our conclusion is that special factors concerning Prince Charles will not – under the legislation governing the requests in this case – generally result in a different consequence.”

In other words, Prince Charles’ advocacy correspondence is to be treated in the same way as anyone else’s. See paragraph 210:

 “We are not persuaded that they warrant giving correspondence between ministers and Prince Charles greater protection from disclosure than would be afforded to correspondence with others who have dealings with government in a context where those others are seeking to advance the work of charities or to promote views.”

The result was that the public interest/fairness factors favouring non-disclosure were not especially weighty, at least in that they did not have any constitutional significance. This judgment is also the first binding confirmation that, as with the EIR, the public interests protected by each separate FOIA exemption are to be aggregated, and the cumulative public interest in non-disclosure is to be weighed against that in disclosure (see paragraph 207).

The public interest in disclosure

So, when analysing the public interest/fairness case for withholding the information, Prince Charles was to be treated like an ordinary person. Prince Charles is, however, not like an ordinary person, given his position and influence. The Upper Tribunal found there to be great public interest in how he sought to wield that influence through his advocacy correspondence. It also made a number of important observations on ‘general’ (i.e. non-case-specific) factors favouring disclosure, and commented on the relevance of media interest. The most notable public interest points are below.

The Upper Tribunal firmly endorsed the strength of the public interest in transparency on important governmental matters generally, irrespective of whether the particular information does or does not answer any questions of specific concern. See paragraph 133 (my emphasis):

“… we think it important that the strength of these general interests should be acknowledged rather than minimised. It is because other methods of achieving accountability and transparency have had only limited success that freedom of information has been agreed by signatories to the Aarhus convention as regards environmental matters, and enacted more generally throughout the United Kingdom as a whole. When disputed information concerns important aspects of the working of government, the interests in accountability and transparency will be not merely of general importance, but of particular strength.”

On a similar note, the Upper Tribunal was clear that an informed debate was something of great importance, regardless of whether the information helped dispel or confirm any particular suspicions about how Prince Charles wielded influence. See paragraph 151:

“It seems to us that the perception that Prince Charles exercises special influence stems from the biography. As to whether it would either be confirmed or dispelled by disclosure of the disputed information, this too seems to us to miss the point: the public interest lies in having an informed debate.”

Moving on to the particular nature of the information in dispute, there was strong public interest in transparency of Prince Charles’ advocacy correspondence, particularly given that he seeks to conduct that correspondence in a way that represents the interests of (at least some of) the public. See paragraphs 141-142, and 152:

“The fact that Prince Charles corresponds with and meets ministers, on confidential terms, is in the public domain: but without the disclosure of actual examples of the correspondence, it is difficult for the public to understand what this actually means in practice… whether this country should remain a monarchy is of course a legitimate matter of public debate. More generally, debate about the extent and nature of interaction between government and the royal family, and how the monarchy fits in to our constitution, goes to the heart of understanding the constitutional underpinning of our current system of government. We conclude that these are all important and weighty considerations in favour of disclosure.

We agree with the Departments that when it is said that Prince Charles speaks “on behalf of us all” that reflects that he writes to ministers on what he believes is in the public interest. This, however, does not answer Mr Evans’s point that it seems incongruous that the public should not know about it.”

As to the public interest defence to a breach of personal confidence, the Upper Tribunal considered it important that Prince Charles voluntarily conducts himself as a public figure. See paragraph 202:

“It would be unreal to contend that Prince Charles is not a public figure. Neither the Commissioner nor the Departments advance such a contention. There is, however, in our view a strong air of unreality about their contention that his birth gave him no choice as to whether to engage in advocacy correspondence. The analogy made by Mr Fordham with a hereditary peer was in that regard compelling: some may feel impelled to intervene for the public good as they see it, either publicly or behind the scenes. Others may not. Applying the Strasbourg case-law we see no basis for saying that when Prince Charles does so his actions must be characterised as “truly personal.” On the contrary they are, on his own description, all motivated by a desire to put the “Great” back in Great Britain.”

Media interest was a relevant public interest factor, but the Upper Tribunal was careful to distinguish sensationalism from serious reporting. See paragraph 157 (my emphasis):

“The media interest in Prince Charles’s interaction with ministers is substantial.  It seems to us that this is not a factor which in itself necessarily favours disclosure.  What is relevant is that there is a real debate, generating widespread public interest, on a matter which goes to the heart of our constitution.  Sensationalism merely for the sake of it will not generally be in the public interest.  The media accounts we have seen have, on occasion, had sensationalist aspects.  For the most part, however, the media reporting is of a kind which has focused on the substance.  It is relevant when assessing the public interest to note the extent to which, over the relevant period, there have been media reports of this kind.”

The Upper Tribunal was not persuaded that disclosure would have a “chilling effect” on correspondence between the Prince and the government. Nor did it consider it relevant that the Prince’s advocacy was not motivated by any desire for commercial gain.

A final important point on the public interest balance concerned the argument (advanced relatively frequently) that disclosure of this information would engender misconceptions or misunderstandings on the part of the public. Again, the Upper Tribunal was not persuasive. It said this at paragraph 188 (my emphasis):

“There is, as it seems to us, a short answer to all the various ways in which the Departments have sought to rely on dangers of “misperception” on the part of the public. It is this: the essence of our democracy is that criticism within the law is the right of all, no matter how wrongheaded those on high may consider the criticism to be.

The future: ‘interesting questions’

Given its assessment of important constitutional principles (not only as regards the heir to the throne, but as regards democratic engagement more generally), this judgment is a very important development in FOIA jurisprudence.

However, s. 37 is now largely an absolute exemption (thanks to the changes to FOIA made by the Constitutional Reform and Governance Act; as an aside, see the unsuccessful attempt to obtain information on how those changes came about: Pragnell v IC and Ministry of Justice (EA/2011/0279)). Does this mean Evans is of largely historic interest when it comes to information concerning the monarchy? The answer is, probably not. First, some requests for information made prior to the CRAG changes remain to be resolved. Secondly, the EIR have of course not been correspondingly changed – which raises what the Upper Tribunal considered “interesting questions”. “Environmental information” has been sought from members of the royal family in the past: Bruton v IC and Duchy of Cornwall (EA/2010/0182)) was one such case, and one imagines it will not be the last. The Evans principles may therefore be highly relevant in future cases.

11KBW’s Jonathan Swift QC, Julian Milford and Tim Pitt-Payne QC appeared in this case.

Robin Hopkins

Meaning of ‘public authority’ under the EIRs: ECJ to consider

September 14th, 2012 by Robin Hopkins

The leading authority on the meaning of “public authority” under regulation 2 of the EIR is Smartsource v IC and a Group of 19 additional water companies [2010] UKUT 415 (AAC). In that case, the Upper Tribunal found that the water companies were not public authorities for EIR purposes. Smartsource has been applied in, for example, Bruton v IC and Duchy of Cornwall and Montford v IC and BBC.

The issue has returned to the Upper Tribunal in Fish Legal v IC [2012] UKUT 177 (AAC), again in the context of water companies. As the Upper Tribunal has noted, however, the principles are relevant to other privatised, regulated industries that deliver a once publicly-owned service: electricity, gas, rail and telecoms. As the EIR implement European legislation, the meaning of “public authority” has been referred to the ECJ, which has recently published the questions it will be considering.

These involve the meaning of ‘performing public administrative functions under national law’ (is the applicable law and analysis purely a national one? If not, what EU law criteria should be used?), what does ‘control’ mean (in the context of one person/body controlling another) and does an ‘emanation of the state’ necessarily come within the definition? Another crucial issue is the so-called ‘hybrid authority’ question: if a body falls partly within the definition, do EIR rights apply only to those parts (functions, activities etc) that do, or to the whole of the person/body?

Those are, of course, paraphrases. The actual questions can be found here. The ECJ’s answers will be enormously important to information access rights in the UK.

11KBW’s Rachel Kamm represented the Information Commissioner before the Upper Tribunal.

Robin Hopkins

The BBC in the Tribunal: not a public authority under the EIR; strong arguments for disclosure of licence fee legal advice

August 17th, 2012 by Robin Hopkins

In Montford v IC and BBC (EA/2009/0114), the appellant had asked the BBC various questions about its expenditure in relation to Cambridge Media and Environment Program, which researched and planned a programme of seminars that had been running since 2005 at which BBC editorial staff discussed issues such as environmental change and world development, with the objective of improving BBC journalism in those areas.

The BBC is a public authority within Schedule 1 of FOIA only within the following parameters: “The British Broadcasting Corporation, in respect of information held the purposes other than those of journalism, art or literature”. The Supreme Court addressed this “derogation” from FOIA in Sugar v BBC [2012] UKSC 4: see our post here. Montford concerned not only the application of Sugar to this request, but also an argument that, given the subject matter of the request and the BBC’s activities, the BBC was a public authority within the meaning of regulation 2 of the EIR.

The Tribunal considered the leading cases on the latter point (Smartsource, Port of London, Network Rail, Bruton) and – applying the multifactorial approach from Smartsource – concluded that the BBC was not a public authority under the EIR. Further, the requested information was not environmental: that requires more than a remote link to the environment, and in the present case there was no link. It was therefore FOIA which applied, and Sugar meant that the requested information fell within the derogation. The BBC therefore did not have to provide it.

The BBC also featured – though not as a party – in another Tribunal decision of late. Crawford v IC and DCMS (EA/2012/0018) concerned the conclusion of the ‘BBC settlement’, ie the funding arrangements (freezing of the licence fee, BBC taking over World Service funding and so on) agreed with extraordinary speed between Jeremy Hunt and BBC Trust chair Michael Lyons in October 2010. The requester – a BBC journalist – sought information about that agreement. By the time of the hearing, the only disputed information was legal advice, which fell within section 42(1) of FOIA. The argument focuses on the public interest.

As readers will be aware, information falling within section 42(1) has very rarely been ordered for disclosure by the Tribunal. One gets the sense from the Tribunal’s decision in Crawford that the appellant here came closer than most to getting the information he sought.  The Tribunal noted the unprecedented speed with which negotiations about matters of great public interest were concluded in 2010. In the circumstances, there were “weighty factors in favour of disclosure of any information which can shed light on how this speedy settlement which affects so many people was reached. In other words there is a significant public interest in transparency and accountability in this case”. The stumbling block, however, was that the disputed legal advice shed only limited light on those concerns. Disclosure was thus not ordered. The Tribunal concluded on a note of sympathy with the requester:

“We would observe that we can understand why Mr Crawford has pursued this matter to a hearing despite disclosure of most of the information originally requested. It seems to us, that despite the exceptional nature of the CSR, the haste of the negotiations and lack of record of what took place means that Mr Crawford has quite understandably had to challenge the DCMS into providing whatever contemporaneous record there might be to help him in his journalist pursuit to provide the public with the facts of this unprecedented Licence Fee Settlement with its far reaching effects.”

Robin Hopkins

New guidance on the Environmental Information Regulations

July 11th, 2012 by Rachel Kamm

The Information Commissioner has published new guidance on the Environmental Information Regulations 2004. It is available here. It includes helpful hyperlinks to other relevant guidance and is well worth a read.

Rachel Kamm

LANDFILL OPERATOR’S INFORMATION NEITHER CONFIDENTIAL NOR COMMERCIALLY SENSITIVE

April 29th, 2012 by Robin Hopkins

First-Tier Tribunal caselaw this past week has focused on the intersection between the common law of confidence and statutory rights of access to information. Moss v IC & Home Office (EA/2011/0081) (see Anya’s post here), the Tribunal analysed section 41(2) of FOIA (information provided in confidence). Shortly thereafter, the Tribunal handed down its decision in Rory Jones (on behalf of Swansea Friends of the Earth) v IC, The Environment Agency and SI Green Ltd (EA/2011/0156). This concerned the slightly different provision under regulation 12(5)(e) of the EIR. Regulation 12(5)(e) EIR provides that “a public authority may refuse to disclose information to the extent that its disclosure would adversely affect… the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest”.

When a landfill operator such as SI Green (UK) Ltd (“Green”) obtains a permit from the Environment Agency (EA”) to operate a waste landfill, financial provision is made for covering the costs of something going wrong. Most commonly, this is done by means of a bond. In the event that any of the events specified by the bond occur, the amount secured by the bond is paid directly to the EA which can then use the funds to put matters right.

In this case, the appellant requested information relating to financial guarantee arrangements put in place by Green pursuant to its EA permit for operating a waste landfill site at Cwmrhydycierw Quarry near Swansea. The EA provided a redacted version of two documents, a performance agreement and the associated bond. It relied on regulation 12(5)(e) EIR in redacting information concerned with the amount of the bonded sum Green is required to secure for each year of operation of the landfill and going forward through a period of 60 years after operations terminate. It contended that this was commercially sensitive confidential information.

The Tribunal agreed with the Appellant that regulation 12(5)(e) was not engaged, because the redacted information was not subject to confidentiality provided by law. First, it was not provided by legislation. The Pollution Prevention and Control (England and Wales) Regulations 2000 enable landfill operators to apply for any information they provide to the EA to be excluded from the public register on the grounds that it is commercially confidential. In this case, Green had made such an application for different information to that redacted here.

Secondly, the information was not subject to common law confidentiality either. As in the Moss case, the Tribunal stuck to the 3-limb test laid down in Coco v AN Clark. In this case, the respondents’ case came unstuck on the second limb, which requires that the information must have been imparted in circumstances importing an obligation of confidence. In this respect, the Tribunal applied regulation 12(5)(e) in a very similar way to s. 41(2) of FOIA. It held that “that element [the second Coco limb] implies the communication of the information by one party to the other. The evidence in the present case, however, is that the information came into existence through a process of negotiation between the parties”. It added that “we recognise that section 41 refers more explicitly to information being “obtained” by the public authority from any other person. That is not the language of regulation 12(5)(e). However, we consider that the same element is imported by the incorporation of the common law test of breach of confidence into regulation 12(5)(e) of the EIR.”

As the exception was not engaged, the public interest test was not necessary. Nevertheless, the Tribunal held that even if the exception had been engaged, the public interest favoured disclosure. The respondents’ cases were based largely on the assumption that the redacted information would reveal useful information about Green’s operating costs in relation to the landfill site in question. The Tribunal found that the evidence before it fell “far short” of supporting that assertion. On the other hand, the public interest in disclosure was made out: “the purpose of the bond is to provide the public with protection should things go seriously wrong. Disclosing the information would allow the public to understand the level of protection that is being provided to them and for them to feel confident that the provision is sufficient to deal with potential difficulties.”

Robin Hopkins

INTERNAL FIXTURES ARE NOT ‘LANDSCAPE’

September 19th, 2011 by Rachel Kamm

The Tribunal, in Black v Information Commissioner (EA/2011/0064), has considered the definition of environmental information in the Environmental Information Regulations 2004 (“the EIRs”). The heart of the definition is “information on the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape, and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements”. 

It is of course important that public bodies spot when requested information falls within this definition, because any such request must be considered under the EIRs instead of the Freedom of Information 2000 (“FOIA”). It is fairly common for the requester and the public body to assume that a request has been made under FOIA, but to realise subsequently that the information should have been considered under the EIRs. The definition of environmental information is broad and sometimes surprises people by capturing information which does not appear to be environmental. For example, Robin Hopkins recently discussed on this blog how the “landscape” element of the definition has been interpreted broadly so as to include a monument. The Tribunal’s decision in Black is relatively unusual in that the appellant argued that all of the requested information fell within the EIRs, but the Tribunal rejected this submission. 

The appellant sought information on internal fixtures, such as fireplaces and chimney pieces, in English Heritage properties.  He relied on the Advocate General’s opinion in the case of Stichting Natuur en Milieu (Case C-266/09) to argue that buildings and structures were part of the landscape, which was not limited to the natural environmental. The appellant also argued that the EIRs had failed to properly implement the Directive. The Tribunal found that the opinion in Stichting Natuur en Milieu did not support the appellant’s submission and concluded that “On a plain reading of both the Directive and the EIR (which are identical in any event) the Tribunal finds that information relating to the internal fixtures of a building does not constitute “environmental information” within the definition, whether as landscape or otherwise”.   

Rachel Kamm

“ENVIRONMENTAL INFORMATION” INCLUDES NAMES OF OFFICIALS DRAWING UP MONUMENTS POLICY

May 25th, 2011 by Robin Hopkins

Omagh DC v IC (EA/2010/0163) is the newest decision on the scope of “environmental information” under the EIR. It is notable both for the broad interpretation it gives to the “landscape” element of that definition, and for the relevance the Tribunal ascribed to the purpose of the request.

The case concerned a memorial on Council-owned land commemorating IRA members who died during the hunger strikes of 1981. The Council undertook an Equality Impact Assessment on its policy on “Disposal of Land for the Purpose of Erecting or Retaining a Memorial or Monument”. The requester sought the names, departments and job titles of those Council officials responsible for that Assessment, as well as the Council’s letter to the Equality Commission.

The issue for the Tribunal was whether this should have been dealt with under FOIA or the EIR. The Council argued that the applicant’s queries were not about the environment, but about a process being used to inform a consultation on a Council decision. The Commissioner contended that the requested information was “environmental information” within the meaning of reg. 2(1)(c) EIR because the assessment was a “measure which is likely to affect the land and landscape”, and that details of those officials responsible for drafting the policy were not so far removed from this “measure” as not to have an effect on it.

The Tribunal has agreed with the Commissioner. It accepted that the Assessment could be fairly described as an investigative step prior to a potentially controversial final decision affecting or protecting the landscape, and also that the scope for “visual as opposed to cultural impact is capable of being regarded as minor” in this case. Nonetheless, it observed that under reg. 2(1)(i), the test is not only whether a measure affects or is likely to affect one of the listed elements but also whether a measure is “designed to protect” those elements; therefore, whether a change is likely is not determinative. The title of the Assessment implied a possible outcome preserving the status quo. The Tribunal was clear that:

“Only the connection with an impact on land or landscape links the concerns in this case into environmental rights. Had the memorial in question been inside a public building, the landscape context would have been absent but the cultural concerns would not have been different”.

Interestingly, although it recognised the “motive blind” principle, the Tribunal took the view that motive could be relevant not to the decision on whether or not to disclose the information (with which the Tribunal was not concerned) but to determining whether or not information is “environmental”:

“… both context and the motive of the requester are potentially relevant considerations. If the requester appeared to be wholly unconscious of an environmental aspect or import to his request, and stressed other reasons for his interest in the information, he could not be said to be denied environmental access rights if his request is not considered under EIR… If the Complainant had shown no evidence of concern about landscape impact, or if the allocation of the issue to one framework rather than the other could have led to a material difference in treatment of the substantive issue, these would have been relevant factors to take into account”.

Robin Hopkins