The Freedom of Information (Designation as Public Authorities) Order 2011 came into force on 1st November 2011. It brings the following three public authorities within the scope of FOIA: the Associaton of Chief Police Officers of England, Wales and Northern Ireland (ACPO); the Financial Ombudsman Service and the Universities and Colleges Admissions Service (UCAS).
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Further to Robin Hopkin’s post this morning, here is a summary of the First-Tier Tribunal’s decision in Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182).
Mr Bruton had requested environmental information from the Duchy of Cornwall, concerning the conservation of an area designated under the Habitats Directive 92/43/EEC which lies within the Ducy. The Duchy refused the request on ground that it was not a public authority for the purposes of the Environmental Information Regulations 2004 (“the EIRs”).
The statutory framework
Under regulation 2 of the EIRs:
“(2) Subject to paragraph (3), “public authority” means -
(a) government departments;
(b) any other public authority as defined in section 3(1) of the Act Freedom of Information Act 2000, disregarding for this purpose the exceptions in paragraph 6 of Schedule 1 to the Act, but excluding -
(i) any body or office-holder listed in Schedule 1 to the Act only in relation to information of a specified description; or
(ii) any person designated by Order under section 5 of the Act;
(c) any other body or other person, that carries out functions of public administration; or
(d) any other body or other person, that is under the control of a person falling within sub-paragraphs (a), (b) or (c) and -
(i) has public responsibilities relating to the environment;
(ii) exercises functions of a public nature relating to the environment; or
(iii) provides public services relating to the environment.”
The EIRs of course implement Directive 2003/4/EC of 23 January 2003 on public access to environmental information (“the Directive”). This provides that:
“2. ‘Public authority’ shall mean:
(a) government or other public administration, including public advisory bodies, at national, regional or local level;
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and
(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).
Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition.”
The Tribunal also took into account the definition of a public authority for the purposes of the Aarhus Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters.
The Tribunal was mindful that the concept of public authority that pertains in relation to the public’s right of access to environmental information as deployed in the Directive must be construed having regard to the wider scheme of EU environmental law, in particular the Habitats Directive (paragraphs 20-21).
It identified at paragraph 32 that the questions to be decided were:
a) Whether the Duchy was a body or other person, and
b) If so, whether it carried out functions of public administration, or
c) Whether the Duchy was under the control of the Duke who carries out functions of public administration and has public responsibilities relating to the environment, exercises functions of a public nature relating to the environment, or provides public services relating to the environment.
Whether the Duchy was a body or other person
On the first issue, the Tribunal considered detailed evidence about the Duchy, which makes for an interesting (if esoteric) read. It concluded that, “whatever the basis of the Duchy under the 1337 Charter, we find that the Duchy is now a body or other legal person. Taking into account all the above evidence and other statutory provisions, the practices of the Duchy and the way it has presented itself to the world including Parliament, the differentiation of the Duchy and Duke in commercial and tax matters as well as under legislation and the contractual behaviour of the Duchy, we are led to the conclusion that the Duchy is a body or other person for the purposes of regs 2(2)(c) and (d) of the EIR” (paragraph 57).
Whether it carried out functions of public administration
The Tribunal described the Upper Tribunal decision in Smartsource v IC and others  UKUT 415 (AC) as “very relevant” here (paragraph 58). It found that Smartsource meant that ”a body which carries out functions of public administration will not be a public authority for the purpose of the EIR if those functions are on the whole secondary functions which are related to and flow from primary functions which are not functions of public administration. But where the functions of public administration are separate self standing functions which do not flow from or depend on the main activity of the body, they are not “ancillary” in Smartsource terms and the body may be a public authority for the purpose of the EIR” (paragraph 63). Note that this aspect of the decision may well not be the final word on this topic. The Upper Tribunal is due to hear an appeal in Fish Legal and Shirley v IC and United Utilities Water plc and others (GIA/0979 & 0980/2011) in January 2012, which will include consideration of the Upper Tribunal’s decision in Smartsource v IC and others  UKUT 415 (AC).
Applying this test in the case of the Duchy, the Tribunal found that its primary function (according to its 2010/11 Annual Report) was to provide an income for present and future Dukes and that the Duchy’s principal activity to generate this income was the commercial management of its lands and properties (paragraph 64).
The Tribunal found (after a further lengthy esoteric discussion) that it was also a Statutory Harbour Authority (paragraph 87). As such, it was a relevant authority and a competent authority for the purposes of the Habitat Directive and the Conservation of Habitats and Species Regulations 2010 (paragraph 97). The judgment records (without expressly endorsing) the argument of the Appellant that “it would be entirely contrary to the aims of the Aarhus Convention, the Directive and the EIR if a body which is a ‘relevant authority’ for the purposes of what the European Commission has stated is “the cornerstone of Europe’s nature conservation policy” (alongside the Birds Directive) was not subject to the European access to environmental information regime” (paragraph 92).
The Tribunal applied the multifactorial approach in Smartsource to the Duchy’s activities as a Statutory Harbour Authority and concluded that “the preponderance of factors point to the Duchy carrying out functions of public administration. This conclusion does not mean that we consider all Statutory HAs will necessarily be public authorities under the EIR. It depends on the facts in each case” (paragraph 99). (In the alternative, it found that the Duke was the Statutory HA (paragraph 100).) It further concluded that these functions were not ancillary to the Duchy’s primary business (paragraph 101).
Where have we got to so far?
At this point of the judgment, the Tribunal helpfully summarises its conclusions as follows (paragraph 102):
“So far we have found that:
i) The Duchy is a body or other person;
ii) The Duchy is a Statutory HA;
iii) Statutory HAs are ‘relevant authorities’ and likely ‘competent authorities’ under the UK regulations implementing the Habitat Directive;
iv) The Aarhus Convention requires the Directive to be read purposively so as to cover information requests relating to the EU environmental regime as a whole;
v) Statutory HAs carry out functions of public administration;
vi) Therefore the Duchy is a public authority under reg 2(2)(c);
vii) Even if the Duchy is not the Statutory HA, the Duke is;
viii) The present Duke manages and controls the Duchy;
ix) Then the Duchy is a public authority under reg 2(2)(d).”
The most interesting point here is that the Tribunal accepts the Appellant’s argument (which was not expressly endorsed at paragraph 92, as discussed above) that the Directive has to be read so as to cover information requests relating to the EU environmental regime as a whole. Does this mean that any competent authority for the purposes of the Habitats Directive and/or other environmental directives must be a public authority for the purposes of the EIRs?
Having reached the above findings, the Tribunal found that it did not need to go any further. The fact that the Duchy was a public authority for the purpose of the EIRs in its capacity as a Statutory Harbour Authority meant that it was a public authority for the purposes of the EIR generally (paragraph 103).
The Tribunal did go on to comment on two other factors which it considered also pointed towards the Duchy being a public authority that was subject to the EIRs. These factors were that the Duchy provided an income for the Price of Wales in his constitutional capacity to undertake public services and that it enjoys a statutory right to bona vacantia.
The decision only applies to public authorities for the purposes of the EIR and not also FOIA. However, as discussed in previous posts (e.g. here) the definition of environmental information is wide.
The Tribunal’s decision in Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182) was published yesterday. The issue was whether the Duchy is a “public authority” for the purposes of the Environmental Information Regulations 2004. The Tribunal decided that it is. 11KBW’s Karen Steyn and Joseph Barrett appeared for the Appellant, Amy Rogers (led by Jonathan Crow QC) appeared for the Duchy and Attorney General, and I appeared for the Information Commissioner. Panopticon will provide some analysis of the decision shortly – but in the meantime, there has been considerable press coverage: see for example here and here.
The Ministry of Justice has today unveiled plans to extend the scope of FOIA, including plans to expand the number and type of bodies which are subject to FOIA. New authorities falling within the ambit of FOIA will include the Association of Chief Police Officers, the Financial Services Ombudsman, UCAS and all companies wholly owned by more than one public authority. The MOJ also intends to consult on bringing a range of further bodies which are believed to perform public functions within the scope of FOIA, including for example: Examination Boards, Harbour Authorities, the Local Government Association and NHS Federation. The Bar Council and the Law Society are also apparently identified as possible candidates for inclusion. There are also plans to make most public records available at the National Archives after 20 years (rather than the current arrangements where access is not permitted until after 30 years). The Justice Minister Lord McNally has confirmed that the Government intends to carry out a ‘full review of the FOI Act to ensure it is still operating in the most effective way’. In practical terms, it is intended that inclusion of new authorities such as ACPO and the FS Ombudsman to FOIA will be achieved via a Freedom Bill to be introduced by February 2011. See further the MOJ’s Press Release here.
This morning’s speech by Nick Clegg on civil liberties had much to say about FOIA and access to information more broadly.
The Deputy Prime Minister said that the progress in transparency brought about by the introduction of FOIA has stalled: FOIA, he said “was a good start, but it was only a start. Exceptions remain far too common. And the available information is too often placed behind tedious bureaucratic hurdles.”
He hailed the Treasury’s COINS database, which details public services expenditure, the work of The Open Knowledge Foundation in processing that data for ready public consumption, and the Cabinet Office’s new transparency rules concerning the publication of spending figures by Whitehall departments (the Cabinet Office’s website explains its work on transparency).
He advertised the government’s plans for a Public Data Corporation, which will “bring existing government bodies together into one organisation, responsible for disseminating a wealth of data” (on which, see The Guardian‘s article here).
FOIA’s scope is to be extended “to cover potentially hundreds more bodies; including UCAS, the Association of Chief Police Officers, the Financial Ombudsman Service and many more”. A complete list has yet to be announced. The government does not, it appears, intend to make bodies such as water utility companies or Network Rail subject to FOIA.
Nor, it appears, will the Secretary of State’s right of veto over Tribunal decisions be repealed.
The 30-year rule is being scaled back to a 20-year rule.
Finally, the Justice Select Committee is to be tasked with “post-legislative scrutiny” (although it is not entirely clear to what legislation this task will apply) of how FOIA is being implemented.
Data protection crept in via Mr Clegg’s recognition that government “must be very respectful in handling personal information”. The EIR did not get a mention in the speech.
The full text of Mr Clegg’s speech is available here.
Brown v Information Commissioner and the Ministry of Justice (EA/2010/0119) concerned a request for a document which had been referred to in judgments from the High Court and Court of Appeal concerning the appellant’s unsuccessful application to view the will of the late Princess Margaret. The document had been referred to as a “practice direction for the sealing of royal wills”. The request for this document under FOIA was initially made to the Master of the Rolls, and was thereafter handled by the Ministry of Justice (which has responsibility for Her Majesty’s Courts Service).
The Tribunal agreed with the Information Commissioner and the MOJ that an adequate search had been conducted and that, on the balance of probabilities, the requested document was not held at the time of the request. It also clarified this statutory curiosity relied on by the appellant: the Master of the Rolls is not a listed public authority, but he is – under section 7 of the Public Records Act 1958 - responsible for “the records of the Chancery of England”, “including those created after the commencement of this Act”. The Tribunal has, however, explained that this is a matter of “antiquarian interest” concerning records of the courts of Chancery prior to the reorganisation of the courts in the 19th century. Requests under FOIA can, therefore, not be made to the Master of the Rolls.
The Queen is the Duke of Lancaster. Since the fourteenth century, the Duke of Lancaster has always been the reigning monarch. The Chancellor of the Duchy of Lancaster is a member of the Cabinet. He administers bona vacantia within and makes a number of official appointments for the Duchy.
The Duchy is not, however, a public authority for the purposes of the EIR. So held the Tribunal in Cross v ICO (EA/2010/0101), a decision which is part history lesson, part legal judgment.
The history lesson in brief: the Duchy was created in 1351 from lands which had been seized by Henry III in 1265. By a charter of 1399, Henry IV ensured the separation of the Duchy as his hereditary family estate from those of the Crown. The Duchy of Lancaster Case (1561) 1 Plowd. 212 confirmed that the Duchy is an estate inherited by the sovereign in his or her private capacity, rather than qua head of state.
The legal judgment in brief: the Tribunal found that the Duchy is not a government department, a publicly-owned company or a body that carries out functions of public administration (or indeed public functions at all). It confirmed that, in this legislative context, “the Crown” means the central executive arm of government. It accepted – but emphasised that it was not confirming – that the Tribunal has jurisdiction over challenges to the Commissioner’s finding that a body is not a public authority. As to “public administration”, the Tribunal applied Port of London and Network Rail – but promulgated its decision before the Upper Tribunal’s recent decision in Smartsource (on which, see Anya Proops’ post here).
The Tribunal will hear a similar case concerning the Duchy of Cornwall shortly.
The Upper Tribunal has this week handed down an important decision on the question of whether privatised water utility companies are ‘public authorities’ for the purpose of the Environmental Information Regulations 2004 (EIR): Smartsource v IC & 19 Water Companies (case no. GI/2458/2010). The background to the appeal was that Smartsource had submitted near identical requests for disclosure of information to some 19 water utility companies. It was not in dispute that the requests fell to be addressed under the EIR. The companies refused to provide the requested information on the basis that they were not ‘public authorities’ for the purposes of r. 2(2) EIR and, hence, were not subject to the disclosure obligations provided for in r. 5 EIR. The Commissioner rejected Smartsource’s complaint about the refusal on the basis that he accepted that the companies were not public authorities under r. 2(2). Smartsource appealed the Commissioner’s decision to the tribunal. The importance of the issues at stake in the case resulted in the appeal being transferred to the Upper Tribunal. The central issues which the Upper Tribunal was called upon to determine were as follows: (1) did the companies ‘carry out functions of public administration’ such that they fell within limb 2(2)(c) of the r. 2 definition of public authority; (2) alternatively, were they ‘under the control’ of a relevant public authority such that they fell within limb 2(2)(d) of the r. 2 definition.
With respect to the first issue, the Tribunal held that the companies did not carry out functions of public administration. It reached this conclusion applying a multifactoral approach akin to the approach adopted in the earlier cases of Network Rail v IC (EA/2006/0061) and Port of London Authority v IC & Hibbert (EA/2006/0083). Notably, the Tribunal rejected arguments advanced by Smartsource that the companies fell within limb 2(2)(d) of the definition because they: were appointed as statutory undertakers; were subject to a range of conditions imposed under statute; were subject to a comprehensive regulatory regime; were unable to choose their own customers or set their own prices; were obliged to provide a universal service; and would be subject to State intervention in the event that they failed. With respect to the second issue, the Tribunal held that that the companies were not ‘under the control’ of a relevant public authority for the purposes of r. 2(2)(d). In reaching this conclusion, the Tribunal accepted arguments advanced on behalf of the Commissioner and the companies that: the concept of ‘control’ in this context meant something more than that the body in question was merely subject to a stringent regime of statutory regulation; the aim of r. 2(2)(d) was to capture State/Executive functions in all their various guises and not the activities of privatised companies of the sort which were in issue in the instant case.
Importantly, the Tribunal also rejected ‘hybridity’ arguments to the effect that a body can be a public authority under the EIR for some purposes but not for others. According to the Tribunal, the way in which r. 2 was formulated meant that the body either was or was not a public authority (cf. the approach adopted in Port of London v IC).
The Tribunal’s recent decision in Gradwick v IC and the Cabinet Office (EA/2010/0030) dealt with sections 23 and 24 of FOIA. Its concluding dicta also dealt with some procedural matters with potentially substantive implications, particularly concerning redacted material. Public authorities may find these dicta worth noting, both when preparing to disclose redacted material and when preparing for Tribunal hearings.
In response to a FOIA request, the Cabinet Office had decided to disclose some extracts from its Manual of Protective Security but to withhold others. Due in part to administrative complications, it did so by compiling a document consisting solely of the former rather than blanking out parts of the original manual. Relying on FOIA’s reference point being information rather than documents, the Cabinet Office sought to justify this approach in the face of criticism from the Tribunal. The Tribunal however, remarked that “it is at least arguable that a document which sets out the passages that contain the information to be disclosed, but which has the effect of obscuring the nature and extent of the information which has been withheld, does not inform the party making the request whether or not it holds information of the description specified in the request, for which exemption is claimed”.
This approach to the presentation of information could, it observed (without deciding the issue), constitute a breach of section 1 (duty to provide information) and/or section 16 (duty to assist) of FOIA.
The Tribunal indicated that it prefers the following approach:
“Within the practice established by the Tribunal and its users to date, a document characterised as having been redacted has come to mean one in which the extent of the omitted material is indicated by blank spaces and in which, to the extent possible, headings or other indications are retained or inserted to give a fair indication, to both panel members and those presenting submissions, of the broad nature of the information that has been withheld. Annotating the resulting document to indicate the exemption relied on to justify each omission is also a valuable assistance in cases where different exemptions apply to different sections of the document or information.”
The BBC is an organisation which is subject to the duties imposed under FOIA only in respect of information held ‘for purposes other than those of journalism, art or literature’ (Part VI of Schedule 1 to FOIA). On Wednesday, the Court of Appeal handed down a judgment which considered the question of how information held by the BBC should be approached if it was held for a number of different purposes, including but not limited to journalistic purposes – see the judgment here. The Court of Appeal held, irrespective of whether the information was held for multiple purposes, provided that one of the purposes included a genuine journalistic purpose, the information was exempt from the application of the duties embodied in FOIA. In reaching this conclusion, the Court of Appeal rejected the proposition that the question whether the information should be disclosed should be decided by reference to the ‘dominant purpose’ for which the information was held. The Court of Appeal also gave guidance on the meaning of the concept of ‘journalism’. In particular, it agreed with the tribunal that the three elements of functional journalism were (a) the collection, writing and verification of material; (b) the editing and presentation of material for publication; (c) the upholding of journalistic standards by supervision, training and review of journalists and their work. The Court of Appeal went on to hold that the BBC had been entitled to treat a report examining the BBC’s coverage of events in the Middle East as falling within the journalism exemption. In reaching this conclusion, the Court of Appeal confirmed that the fact that the report had been used by the BBC for strategic managerial purposes did not prevent it falling within the journalism exemption.
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