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.