Confidentiality of medical information after patient’s death: two new Upper Tribunal decisions

November 14th, 2013 by Robin Hopkins

The absolute exemption at section 41 extends to information obtained by the public authority the disclosure of which would give to an actionable breach of confidence. Does the obligation of confidence survive the death of the confider? If so, would a breach of that obligation be actionable, even if it is not clear exactly who could bring such an action? These issues arise most notably in the context of medical records. The Upper Tribunal has had something to say on this in two recent decisions.

In Webber v IC and Nottinghamshire Healthcare NHS Trust (GIA/4090/2012), the appellant had made a FOIA request for information (including hospital records) about the death of her son in 1999 when he was compulsorily resident at Rampton hospital. This was refused on section 41 grounds. The Commissioner upheld the refusal, as did the First-Tier Tribunal. In doing so, it somewhat unusually did not see the withheld information for itself, since it had not been asked to by anyone.

Mrs Webber’s appeal to the Upper Tribunal has also been dismissed. Judge Williams considered that the Tribunal could not be faulted for not differentiating between different categories of withheld information (which it obviously could not do, as it had not seen the information): “it is the task of the tribunal to decide the case before it unless it sees reason to investigate further” (paragraph 30).

He also confirmed the well-established principle that what matters under FOIA is information rather than documents: though the records were created by the NHS Trust, the information contained in those records came from the patient. In the section 41 context, “obtained” simply means “come to have”, which can be active or passive (paragraph 38).

Judge Williams confirmed a further touchstone of FOIA, namely that whatever the particular interests of the requester, this “remained an application to put the information into the public domain” (paragraph 37), that being the effect of disclosure under FOIA.

Disclosure would entail a breach of confidence which was actionable after the patient’s death, notwithstanding the argument that, in this case, the only person who could sue would be the personal representative (who was likely to have been the requester: thus it was submitted that she would in effect have been suing herself).

Judge Williams also found that there would not have been a public interest defence to the breach of confidence. Here he gave weight to the fact that some of the information sought would or could come into the public domain or be obtained in another way: a coroners’ inquest, or through an application under the Access to Health Records Act 1990 (now largely supplanted by FOIA, but not as regards deceased persons) which allows for requests for access to information to be made by (inter alia) patients’ personal representatives. Such an application was outside the Upper Tribunal’s jurisdiction but it was “relevant to note that it exists as a specific if limited remedy for some aspects of the application made for the appellant in this case” (see paragraphs 23-24).

In M v IC and Medicines and Health Products Regulatory Authority (GIA/3017/2010), Upper Tribunal Judge Lloyd-Davies allowed the requester’s appeal for information in a report held by the public information concerning a pharmaceutical trial of a drug developed by Pfizer. That information had again been withheld under section 41, with the Commissioner and First-Tier Tribunal agreeing – regardless of whether the participants in the trial were dead or alive at the time of the request.

The appeal was allowed because of a procedural error – the Tribunal had authorised more extensive redactions than were in fact being put to it.

The remitted hearing is to include questions of identifiability of patients in the context of anonymised drug trial data. The line of authorities on statistical information (Common Services Agency, Department of Health) will no doubt be considered.

The decision contained this obiter observation on actionable breaches of confidence in the case of deceased patients: “where the confidence arises in the context of a patient/healthcare professional relationship, I am minded to conclude that the obiter observations of Mr Justice Foskett in R (Lewis) v Secretary of State for Health [2008] EWHC 2196 (QB) are correct”.

I acted for the Commissioner in the M case; my colleague Joe Barrett acted for the appellant in Webber.

Robin Hopkins @hopkinsrobin

Closed material and closed proceedings in FOIA litigation: authoritative guidance from the Upper Tribunal

May 22nd, 2013 by Robin Hopkins

Closed material and closed proceedings are commonplace in FOIA litigation. As regards the disputed information itself, the need is self-explanatory. But what about closed material other than the disputed information, such as evidence in support of a public authority’s reliance on exemptions? To what extent is it appropriate for FOIA proceedings to be determined by reference to such material which the requester is unable to see and challenge? Also, if the public authority’s concern is with public disclosure of such material, is the solution to be found in a readiness to bring the requester’s legal representatives into a ‘confidentiality ring’? In other words, do natural and open justice demand that requesters’ legal representatives be allowed to attend the closed part of the hearing and see the closed material?

These questions are fundamental to the fair and thorough determination of disputes about the rights conferred by FOIA. In a very important recent decision, the Upper Tribunal has given its answers.

The case

Browning v IC and Department for Business, Innovation & Skills (GIA 25/12) was heard by Mr Justice Charles, Mr Justice Mitting and Upper Tribunal (UT) Judge Andrew Bartlett QC. The decision is available here: Browning GIA 25 12.

The case concerned a request from a Bloomberg journalist for information from the Export Control Organisation (for which DBIS is the relevant public authority) in connection with licences issued for the exporting to Iran of “controlled goods” – explained as “mainly military, dual use (potentially military), equipment designed for torture or repression or sources of radio-activity”. DBIS relied on sections 41 and 43 FOIA. The IC found for the requester but, upon sight of further evidence, supported DBIS’ appeal before the First-Tier Tribunal (FTT). In decision EA/2011/0044, the FTT allowed DBIS’ appeal. In reaching its decision the FTT considered closed material and part of the hearing was closed.

The closed material comprised not only the disputed information, but DBIS’ evidence supporting its reliance on the exemptions. In particular, DBIS had written to applicants for such licences to obtain their views about disclosure, and it relied on their (confidential) responses in closed. Four or five of the 92 responses had been provided to Mr Browning in an anonymised, re-typed and redacted form prior to the hearing before the FTT, so as to illuminate to a degree the nature of the closed evidence being relied upon.

Mr Browning had not asked for more of the closed evidence to be made available to him in that way. Rather, a without-notice application was made at the FTT hearing for his legal representative(s) to see the closed material and attend the closed hearing in order to put the case on his behalf. The FTT refused the application. It summarised the approach taken in other FTT decisions, whereby such applications “will succeed only if there are exceptional circumstances specific to the appeal… The use of special counsel, as an alternative, is likewise exceptional.”

Mr Browning’s first ground of appeal before the UT was against the FTT’s refusal of that application.

Reliance on closed material

Mr Browning understandably contended that “the principles of open and natural justice and of fairness require, or strongly support the conclusion, that their application in the context of adversarial civil litigation should be departed from to the least extent possible… in the determination of an appeal to the FTT under FOIA” (para 48).

The UT said, however, that those principles admit of some context-sensitive flexibility. FOIA appeals are materially dissimilar from criminal and adversarial civil litigation. At paras 59-60, it said that:

“FOIA and its underlying purposes mean that, when a disputed request for information reaches the First-tier Tribunal pursuant to the statutory scheme put in place by FOIA, the relevant background and landscape of rights, interests and duties is materially different from that which obtains in criminal and civil litigation in the courts… It follows from the points we have made about the purposes of FOIA that, in our view, to characterise the First–tier Tribunal’s function, within the statutory scheme established by FOIA, as or equating to ordinary civil and therefore adversarial litigation because it is deciding a dispute between the parties before it, or deciding whether to vindicate a right claimed by the applicant, is an inadequate and inaccurate description; rather, its function is investigatory and is to see that FOIA is properly applied to the circumstances. This involves consideration, in the manner provided by FOIA, of the right which is given by s. 1(1) in pursuance of the interests served by the release of information, together with the assessment of countervailing public and private interests in accordance with the terms of the exemptions.”

Closed proceedings are thus intrinsic to FOIA litigation. The UT has confirmed the right to rely on closed evidence other than the disputed information (though see below for procedural caveats). See paras 59-60:

“(i) it is clear that Parliament did not intend that there should be such a “back door” route to information in respect of which a FOIA exemption could be claimed.  It follows that there is a need to protect it from disclosure to a requester that is equivalent to that which exists in respect of the information he or she has requested, and

(ii) it is also apparent that Parliament did not intend to spawn disproportionate and satellite disputes on whether an exemption applies to information put forward to establish a claimed exemption, and this is a reason why it chose an investigatory appeal process to a tribunal comprising persons with relevant expertise.”

The UT concluded that (para 71):

“The exercise by the First-tier Tribunal of its discretion under the 2009 Rules to consider closed material and to hold a closed hearing is not governed directly, or by analogy, by the approach taken by the civil courts to the disclosure of relevant material and we therefore reject Mr Browning’s central argument that it should be exercised to achieve a result that departs to the least extent possible from the approach taken in adversarial civil litigation.”

Applications for representatives to see closed material/attend closed hearings

The UT reviewed the jurisprudence on this issue (which has not favoured the granting of such applications) and discussed the problems that would arise if such an application were granted. There is a risk of accidental disclosure. It can be difficult for the representative to police neat lines between what he can and cannot say to his client or in open session. More generally, there would be very problematic limitations on taking instructions, such that (para 76) “the value added of the approach over that of suggesting lines of enquiry to the First-tier Tribunal and the Information Commissioner is likely to be limited to what the representative knows of his client’s position before he takes part in the closed process.” In any event, what to do about unrepresented requesters?

At paras 80-81, the UT set outs its conclusions:

“… a First-tier Tribunal should not direct that a representative of an excluded party should see closed material or attend a closed hearing unless it has concluded that, if it does not does so: it cannot carry out its investigatory function of considering and testing the closed material and give appropriate reasons for its decision on a sufficiently informed basis and so fairly and effectively in the given case having regard to the competing rights and interests involved.

81.          We also acknowledge and confirm that this approach will lead to the result that it will only be in exceptional and so rare cases that a representative of a party seeking information under FOIA will be permitted to see closed material and attend at a closed part of the hearing.  Indeed, we have not been able to identify circumstances in which we think that this would be appropriate, but acknowledge that it cannot be said that this should never be done.”

It also considered that Article 6 ECHR was not engaged, and that its engagement would not dislodge the above conclusions in any event.

Mr Browning’s first ground of appeal therefore failed. The UT did, however, have more to say on how to approach reliance on closed material. All parties involved in FOIA litigation should pay careful attention to these points.

The Practice Note and other observations on the use of closed material

The UT had misgivings about the limited extent of the anonymised closed material which had been made available to Mr Browning on an open basis. It noted, however, that this limited disclosure had for a vigorous and partially successful challenging of the evidence by the requester’s counsel. “During the period leading up to the hearing and when it began Mr Browning and his legal representatives had ample opportunity to seek by way of agreement or further direction additional information about the extent, content and nature of the Closed Exemption Evidence and they did not do so”.

Strictly speaking, the UT has declined to issue general guidance on the approach to allowing reliance on closed material at FTT level, but it has made a number of important points.

It observed (para 42) that “the need to avoid disclosure of the requested information is an obvious and good reason for there being closed material and a closed hearing, but in some cases this may not be the only reason that justifies a First-tier Tribunal considering closed material and holding a closed hearing”.

The FTT’s Practice Note on Closed Material in Information Rights Cases (issued in May 2012) was also considered. The UT said this (para 17):

“This does not have the force of a rule of law or a practice direction, and this judgment should not be taken as comprehensively endorsing it, but we do consider that it is something that First-tier Tribunals should take into account and, if they do not apply it in a given case, they should explain why they have not done so.  In particular, in our judgment, if no written and reasoned application for there to be closed material and a closed hearing has been made pursuant to that Practice Note, First–tier Tribunals should explain why they have proceeded without one.”

It added this on the FTT’s approach to closed material in general (para 18):

“More generally, we comment that First-tier Tribunals should consider and give appropriately detailed directions and reasons (i) setting out the nature and subject matter of any closed material and hearing, (ii) why they have accepted that they should consider evidence advanced by a public authority (or anyone else) and argument on a closed basis, and (iii) why further information relating to their content has not been provided.  If this is done it will provide clarity as to what will be, and has been, considered on a closed basis and why, for example, evidence provided to support an exemption has been so considered and more of it, or about it, has not been disclosed.”

Finally, the UT was clear as to the ongoing nature of these duties (para 39): “throughout the proceedings a tribunal carrying out its investigatory function must keep under review whether information about closed material should be provided to an excluded party in, for example, an anonymised form”.

Clearly, all FTT proceedings involving closed should be conducted in light of the points made above.

Other grounds of appeal: sections 41 and 43 of FOIA

Mr Browning’s other grounds of appeal also failed before the UT. Some of those grounds concerned the FTT’s findings on section 41 of FOIA (actionable breach of confidence). Mr Browning that the disputed information had not been “obtained” from outside the public authority, that the name of a licence applicant does not have the necessary quality of confidence, and that applicants had not imparted licence information in circumstances importing an obligation of confidence. All of those grounds of appeal were dismissed.

More broadly, on the approach to section 41 of FOIA, the UT has said this (para 30):

“It was also common ground before the FTT, and not an issue that was raised or argued before us, that the consideration of whether disclosure would constitute a breach of confidence that is “actionable” incorporates all parts of the breach of confidence action, including the absence of a public interest defence.  This accords with existing First-tier Tribunal decisions (see for example, Gurry on Breach of Confidence 2nd edit para 13.130 and in particular HCFC v IC & Guardian News and Media EA 2009/0036).  On that approach, the point that s. 41 is an absolute exemption is not as significant as it might first appear because within it there is a need to weigh the competing public interests, and as pointed out in a footnote to that paragraph in Gurry, the reverse approach to weighing the public interest in respect of a breach of confidence to that set out in s. 2 of FOIA in respect of a qualified exemption, if anything, makes it easier to establish the s. 41 exemption but is unlikely to become a determinative factor.”

Mr Browning also challenged the FTT’s conclusions on the detriment likely to arise from disclosure and argued that it had not identified the prejudice to commercial interests or the likelihood of that prejudice (for section 43(2) FOIA purposes).

The UT did have misgivings about the FTT’s comments about ‘chilling effect’ arguments on the evidence, but found that it there had been an error of law, it was at most a makeweight finding which did not suffice to overturn the FTT’s decision.

Ben Hooper acted for the Information Commissioner.

Robin Hopkins

Update on recent Tribunal decisions part 4: qualified exemptions and the public interest

November 13th, 2012 by Robin Hopkins

In the final part of our round-up of recent decisions of the First-Tier Tribunal, Panopticon looks at the qualified exemptions, the public interest and a few other loose ends.

Section 36: Cherie Booth, Ryanair and Council emails

Sutton v IC and Nottingham City Council (EA/2012/0044) concerned the Council’s decision to amend its internal ‘sign off’ procedures for responses to FOIA requests, following an incident in which its response to a request about the cost of Councillors’ refreshments was considered to have been inadvertently misleading and lacking in context. The requester asked for internal emails about the proposed change. The Council withheld some of those emails, contending that they contained the sort of robust, free and frank exchange of views for which a safe decision-making space was needed. In a decision which many local authorities will find heartening, the Tribunal agreed.

The background to Sittampalam v IC and Ministry of Justice (EA/2011/0277) is the comments made by Cherie Booth QC, sitting as a recorder, when sentencing a Muslim defendant. Her comments appeared to suggest that his faith was a mitigating factor in his defence. They caused a stir, were reported in the media and attracted complaints, including by the National Secular Society, to the Office for Judicial Complaints. The OJC concluded that Ms Booth’s comments did not constitute judicial misconduct, though she was to receive “informal advice” on the issue.

A request under FOIA was made for all information about this OJC investigation and any action taken. The public authority relied on s. 36 – prejudice to the free and frank exchange of views, provision of advice or conduct of public affairs. The ‘reasonable opinion of the qualified person’ (the prerequisite for engaging s. 36) was obtained after the public authority’s holding reply to the request and after the statutory time for compliance – but before the public authority’s formal notice of refusal. The Tribunal rejected the requester’s contention that s. 36 was not engaged because of the timing of the opinion. As to the public interest, the Tribunal was satisfied us that the requester’s suspicions about the OJC ‘covering up’ the complaint or trying to minimise the impact of its conclusions on account of Ms Booth being the wife of Tony Blair were unfounded. Nor were the OJC’s press statements inconsistent with its letters to the National Secular Society. The appeal was dismsised.

Whereas alleged ‘late reliance’ on s. 36 succeeded in Sittampalam, it was unsuccessful before the Tribunal (at the preliminary hearing stage) in Ryanair v IC and Office of Fair Trading (EA/2012/0088). The opinion was obtained prior to the internal review. The Tribunal concluded that:

“Considering issues of reasonableness it is difficult for the Tribunal to be satisfied that the section 36 opinion of the qualified person – given its timing in respect of this appeal – is not an ex post facto conclusion or, more accurately, not tainted with the perception that that could be the case. That goes to the heart of its reasonableness.”

Sections 41 and 43: casinos and vikings

London Borough of Newham v IC (EA/2011/0288) concerned the Council’s award of the licence to operate a large casino at Westfield shopping centre in Stratford. The requester, a law firm acting on behalf of the unsuccessful bidder, made a request under FOIA for documents relating to the successful bid. The Council withheld some of those, relying on s. 44 (statutory bar on disclosure under the Code of Practice for the Gambling Act 2005), s. 41 (information obtained in confidence) and s. 43 (prejudice to commercial interests). The Commissioner was unpersuaded and ordered disclosure.

The Council’s appeal was partially upheld and partially dismissed. The statutory bar was held not to extend beyond the conclusion of the tender process. S. 43(2) was engaged, with the public interest favouring disclosure of some (relating for example to security arrangements and the financial guarantee offered by the winning bidder, as well as records of some of the negotiation discussions, which the Tribunal found would be unsurprising to any commercial rival) but not others (tender details which were deemed more commercially sensitive). Similarly, s. 41 succeeded for some information but not all (some, for example, was effectively in the public domain; some had not been obtained from outside the Council). Bidders could reasonably expect confidentiality not permanently, but for a reasonable time following the bidding process – here the request was made within that reasonable time, which counted in the Council’s favour.

The disputed information in Pim v IC and Down DC (EA/2012/0078) was a business plan submitted by the Magnus Viking Association in respect of their proposed Viking re-enactment centre, and correspondence between the Council and Magnus. The Council relied on regulation 12(5)(e) of the EIR (confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest). The Commissioner and Tribunal agreed: extensive research and consultation had gone into the specialist information, which could be used by Magnus’ competitors in a viking re-enactment market which, while not flooded with competition, was growing. There was a strong interest in maintaining trust between the commercial parties.

Prejudice to the course of justice

In McCullough v IC and Northern Ireland Water (EA/2012/0082), the requester sought detailed technical information about vibrations measurements relating to sewer upgrade works in Belfast. The Commissioner agreed with the public authority that regulation 12(5)(b) of the EIR (adverse effects on the course of justice) was engaged and that the public interest favoured its maintenance. A key issue was that disclosure, it was argued, would prejudice NI Water’s position when defending prospective legal claims about the sewer works vibrations, including by the requester (though there was a dispute as to whether the requester did in fact intend such proceedings).

The Tribunal disagreed. It was “not persuaded that purely factual information such as this could ever adversely affect the course of justice” and did “not accept that early disclosure of this technical information would prejudice NI Water in any way that they would not be prejudiced in the normal course of discovery in litigation by such information”. Regulation 12(5)(b) was therefore not engaged, in the Tribunal’s view.

It also did not think that information could be withheld just because of potential prejudice to a public authority’s litigation position: “The implications of implementing such a policy could, in some circumstances amount to a cover up, and in our view would be contrary to the spirit and intent of the FOIA and EIR legislation and further, contrary to the public interest. We are of the view that it is in the public interest that justice is done and that the correct result emerges from litigation, not that a public authority should necessarily be successful, just because it is a public authority.” The exact meaning of these last words is not clear, but the decision will nonetheless raise many a public authority eyebrow.

Robin Hopkins

Board minutes of a public/private joint venture confidential and commercially sensitive

October 11th, 2012 by Robin Hopkins

Joint ventures between the public and private sectors are increasingly common. They are often a focus for vigorous political debate over issues such as the costs involved, the savings to the public purse, the profit to the private sector partner, and allegations of conflicts of interest. While those are political arguments on which Tribunals take no view, they do point to the significant public interests that are engaged when considering access to information. So said the Tribunal in David Orr v IC and Avon and Somerset Police Authority (EA/2012/0077), a recent decision notable for grappling with access to information about such a public/private joint venture.

South West One Limited (“SW1”) is a company formed in 2007 as a joint venture by three West country public authorities (together owning 25% of the company) and IBM (75%) to create for their own use and promote and sell to other authorities IT support systems of various kinds. Given its membership of the board of SW1, the second respondent police authority held minutes of its board meetings. The requester asked for that information. The police authority refused, relying on ss. 41 (actionable breach of confidence) and 43(2) (prejudice to commercial interests) of FOIA. An important feature here was that the joint venture agreement contained confidentiality clauses, including one providing that “each of the parties… shall hold in confidence… any financial or other information in respect of the company or the business”. The Commissioner upheld the refusal, finding no evidence that the agreements were being used to circumvent FOIA improperly.

The Tribunal agreed. It rejected the requester’s argument that SW1 should be treated as a public authority for FOIA and EIR purposes. It also upheld reliance on s. 41. It found that redactions would not suffice to remove confidentiality:

“… removal of the name of the targeted purchaser might not conceal its identity from well – informed readers. More fundamentally, board minutes are, by their nature, confidential information. They record disagreements and minority opinions. They should frankly describe the inner workings of the company, whenever significant issues are discussed. It is important in the shareholders` interests, that board minutes fully reflect what has been transacted.”

As to the prospects of success for a public interest defence to an action for breach of confidence, the Tribunal noted the police authority’s sympathy with the requester’s position: “any loss of transparency or “democratic deficit” arising from the creation of SW1 was an inevitable consequence of joint ventures involving public and private sector entities working together through a limited company.”

The Tribunal approached the public interest defence as follows (paragraph 32):

“We have regard, on the one hand, to what is already in the public domain and, on the other, to the undoubted importance of transparency in the operation of joint ventures, in so far as that is consistent with the proper commercial interests of the company thereby created, here SW1. If a joint venture company has been formed for the specific purpose of frustrating the duties of disclosure enacted in FOIA; if public funds are being needlessly squandered in a badly – managed business; if serious conflicts of interest are or may be distorting the company`s operations, then there may be a strong case for disclosing information which reveals such facts.”

None of those concerns arose here, and an action for breach of confidence would not be defeated.

Similar considerations meant that reliance on s. 43(2) would also succeed here. On this issue, the Tribunal observed (paragraph 37) that even where a joint ventures is between public authorities alone (i.e. without the involvement of a private sector partner), the case for reliance on s. 43(2) may be equally strong.

For further analysis of this case, see the Local Government Lawyer.

Anya Proops represented the police authority.

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


January 11th, 2012 by Rachel Kamm

The First Tier Tribunal (Information Rights) has had a busy start to 2012, with 7 decisions on its website already.

The first judgment out was Herbert v ICO and West Dorset District Council, EA/2011/0157. The appellant sought correspondence concerning the transfer to the Council of property previously owned by Lyme Regis Borough Council. The Council refused the request on ground that it was vexatious. The history of this case related to incidents and disputes regarding a different matter, between the appellant and the Council dating back to 1992, which culminated in 1996 when the Council revoked a license held by the appellant. The ICO agreed that the request was vexatious. The appellant submitted that he had a genuine interest in the history of Lyme Regis and that he believed that some historical documents were missing from the National Archives and that they had been retained by the Council because they related to illegally acquired property. The Council had previously allowed him to research their archives on another matter and he wished to be able to do so again to look for these missing documents. He said that he had expected the ICO to contact him so that he could put forward further arguments. The FTT agreed with the ICO and the Council that the request had been made under FOIA (and not the EIRs). The FTT set out the key principles that have been applied by Tribunals in considering whether requests were vexatious under s14 FOIA. The FTT considered the background and found that the appellant’s request was obsessive. Further, the request had the effect of harassing the Council (even though the language was not hostile), as allegations of illegality and impropriety were made at the same time as the requests and there was a context of a high volume of correspondence. The Council had made extraordinary efforts to accommodate the appellant’s requests over a considerable period of time and valuable resources of time and effort have been used which could otherwise have been used more productively. In the view of the FTT, to accommodate this request would constitute a further and significant burden on the Council. The FTT concluded that the request was vexatious.

The next decision to be promulgated was King v ICO, EA/2010/0126. The appellant sought from the ICO records of complaints where Crawley Borough Council had failed to comply with FOIA/EIRs and the ICO never served a ‘decision notice’. The ICO refused the request on ground that the information  consisted of ‘third party information’ that was exempt from the requirements of disclosure. It did not identify the exemption relied on for refusing to disclose the information. However, it did provide the appellant with a summary of the information requested. Further information was provided by the ICO in response to the appellant’s request for a review of the decision. The appellant then asked for the information with just the personal details of individuals removed. The ICO refused, citing s.44 FOIA, as exempting information that is prohibited from disclosure under another Act, namely s.59 DPA (which prevents disclosure of information collected in the course of an investigation where there is no lawful authority to do so). The appellant requested  review of this decision. In subsequent correspondence, the ICO  relied on s.40 FOIA (the data protection exemption). The appellant then asked the ICO to make a decision under s.50 FOIA as to whether it had complied with the Act. Having previously been acting in its capacity as a body which was itself subject to FOIA, the ICO then changed back to its normal hat. The ICO said that it was reversing its decision and it provided the appellant with the  letters which had been sent to the Council in the cases alleging non-compliance with FOIA, with personal data redacted. The appellant disputed that this resolved his request; he also wanted the documents from the individuals making complaints and from the Council. The ICO denied that these had been within the scope of his original request. The ICO subsequently issued a decision notice stating that it had provided the appellant with the information requested, but that it had breached FOIA (including by not holding an internal review at the right stage, by not providing the information at the outcome of the internal review and by not acting within the time-scales in the Act). The appellant appealed, arguing that the ICO had not provided all information which fell within the scope of his request, had misinterpreted his request and had breached the duty to provide advice and assistance. In relation to the scope of the request, the FTT criticised the ICO for not having properly analysed the request but found that in fact it had provided all information that fell within the scope of the request. The appeal therefore failed. The FTT also found that the ICO was not in breach of the duty to provide advice and assistance; the appellant argued that the ICO should have asked him to clarify his request, but the FTT found that this was not necessary because the request was in any event clear and adequately specified the information sought. This case very much turned on its facts, but it is interesting to see the application of FOIA to the ICO as a public authority and it is also a useful reminder to carefully read the request from the outset.

The third decision out in 2012 was Newcastle Upon Tyne Hospital NHS Foundation Trust v ICO, EA/2011/0236. This appeal was struck out because the judge considered that there was no reasonable prospect of it succeeding. The disputed information was statistics about the number of people dismissed over a three year period. The Trust refused to provide the information, on ground that it was reasonably accessible (s.21 FOIA) by way of an application in the employment tribunal litigation. The Trust subsequently provided the information voluntarily. The ICO found that the Trust had misapplied s.21 FOIA. The Trust appealed, arguing that “The point at issue is one of prioritising the correct forum by which information is provided. The Trust point is that once proceedings are issued, the correct forum lies within the proceedings that have been issued, in this case the Employment Tribunal“. Not surprisingly, the judge found that this argument had no reasonable prospect of success. FOIA rights are not put on hold if there is litigation between the parties. Further, information obtained under FOIA can be used for any purpose whereas information obtained in litigation can only be used for that purpose and so litigation disclosure is not an answer.

Cross v ICO, EA/2011/025 is also a strike out decision. The appellant sought from Havant Borough Council a building control decision notice, plans and inspection records relating to a loft conversion to his home carried out in 1987. The Council refused the request under the EIRs, on ground that it was not held at the time of receipt of the request. The appellant believed that he had seen these documents on a visit to the Council and that, whilst it was possible that they had subsequently disappeared, his appeal should not be struck out. However, the Council had conducted a six day trawl for the information and the judge found that it was obviously willing to provide the information if it could be found. The appeal was therefore struck out as having no reasonable prospect of success.

Finally, in Martyres v ICO and NHS Cambridgeshire, EA/2011/020, the FTT dismissed an appeal by an appellant who sought all information held by NHS Cambridgeshire (and its relevant community services provider), in respect of her deceased mother who had died on 29 August 2009 including information about the care received by her mother at a care home she was staying at prior to her death. The appellant argued that she was the next of kin, proposed executor and trustee of one of the Wills and had a valid claim against her mother’s estate under the intestacy  rules. In relation to s.41 (FOIA), the FTT found that the information was obtained from another person (social care professionals), it possessed the necessary quality of confidence and disclosure would constitute such an actionable breach of confidence. The FTT further concluded that s.21 FOIA did not apply, in that the appellant would not have been able to obtain the disputed information under the Access to Health Record Act 1980 (as the appellant claimed); whilst she was the nearest relative, she was not the personal representative. The FTT also dismissed the appellant’s arguments under the Human Rights Act 1998.

Rachel Kamm


September 26th, 2011 by Robin Hopkins

The past week saw a slew of new decisions from the First-Tier Tribunal. Here is Panopticon’s highlights package.

Sections 41 (information obtained in confidence) and 43 (commercial prejudice)

In DBIS v IC and Browning (EA/2011/0044), the requester (a Bloomberg journalist) had sought information from the Export Control Organisation in connection with licences issued for the exporting to Iran of “controlled goods” – explained by the Tribunal as “mainly military, dual use (potentially military), equipment designed for torture or repression or sources of radio-activity”. The relevant public authority, the Department for Business, Innovation & Skills, refused the request, relying on sections 41 and 43. The IC found for the requester on the narrow basis that, whilst disclosure would result in a breach of confidence, no commercial detriment would be suffered by the licence applicants as a result. Subsequent evidence from the Department persuaded the IC to change position and support the appeal, which was resisted by the applicant. In a decision which turned on the evidence, the Tribunal allowed the appeal, and found both sections 41(1) and 43(2) to be effective.

Section 42 (legal professional privilege)

Two recent decisions on this exemption. Both saw the Tribunal uphold the refusal, applying the established approach under which this exemption has a strong in-built public interest. Szucs v IC (EA/2011/0072) involved an FOIA request about an earlier FOIA request (the appellant requested the legal advice and associated documents provided to the Intellectual Property Office about how to deal with a previous FOIA request made by the appellant’s husband). Davis v IC and the Board of Trustees of the Tate Gallery (EA/2010/0185) is eye-catching primarily because it concerned the Tate’s legal advice concerning the inclusion in an exhibition of a photograph of the actress Brooke Shields, aged ten, naked, entitled “The Spirit of America” (the Tate had initially proposed to include this in an exhibition, but ultimately withdrew the photograph).

Section 40 (personal data)

Beckles v IC (EA/2011/0073 & 0074) concerned the identifiability of individuals from small sample sizes, in the context of information about dismissals, compromise agreements and out-of-court settlements. The appellant asked Cambridge University for information on (among other things) the number of employees who received post-dismissal settlements. The answer was a low number. He asked for further details concerning the settlement amounts, rounded to some appropriate non-exact figure. This, said the Tribunal (applying the Common Services Agency/Department of Health approach to identifiability from otherwise anonymous figures) was personal data, the disclosure of which would be unfair. Its reasoning is summed up in this extract:

“Information as to the settlement of a claim made by an identified individual relating to his or her employment is undoubtedly personal data. The question is whether the four individuals or any of them could be identified if the information requested were disclosed, even in approximated form…. Cambridge University is made up of a large number of much smaller academic or collegiate communities. It is likely that a number of colleagues or friends will be aware that a particular individual settled a claim with the University within the time-scale specified. They will be aware of the general nature of that person`s employment. This is a small group of claims in a relatively short period. In the form originally requested it is readily foreseeable that one or more of the four will be identified.”

Sections 24 (national security) and 27 (international relations)

Burt v IC and MOD (EA/2011/0004) concerned information gathered by staff of the UK Atomic Weapons Establishment on an inspection visit to a United States atomic energy facility, as a learning exercise regarding the proposed development of an enriched uranium facility at Aldermaston. The US had expressed its desire to maintain proper confidence in what it regarded as a sensitive area. The MOD refused the request, relying on sections 27 and 24. By the time of the appeal, only a small amount of information had not been disclosed. This was primarily of a technical nature, containing observations about the operation of plant, machinery, procedures and processes at the US facility.

The Tribunal upheld the MOD and Commissioner’s case as regards the outstanding material. As regards section 27, the Tribunal applied the principles from Campaign against the Arms Trade v IC and MOD (EA/2006/00040). It observed, however, that confidential information obtained from another country would not always be protected by section 27: it was “perhaps axiomatic that the foreign State will take the United Kingdom as it finds it including but not limited to the effect of its own domestic disclosure laws. It follows that there may well be cases where information otherwise imparted in confidence from a foreign State to a United Kingdom authority would need to be considered on its own merits as to whether some form of disclosure should be made or ordered whether under FOIA or under similar analogous legislation or principles such as the UK data protection principles.”

As regards section 24, the Tribunal applied Kalman v IC and Department of Transport (EA/2009/0111) (recourse to the exemption should be “reasonably necessary” for the purpose of safeguarding national security), and Secretary of State for the Home Department v Rehman [2003] 1 A 153 (the threat to national security need not be immediate or direct).

Burt is also an example of a “mosaic effect” case: taken in isolation, the disputed information may appear anodyne, but the concern is with how it might be pieced together with other publicly available information.

Section 14(1) FOIA (vexatious requests)

Dransfield v IC (EA/2011/0079) is an example of the Tribunal overturning the Commissioner’s decision that section 14(1) had been engaged (for another recent example, see my post here). As with many such cases, the history and context were pivotal. Given that it is the request, rather than the requester, which must be adjudged to be vexatious, how should the context be factored in? The Tribunal gave this useful guidance:

“There is, however, an important distinction to be drawn between taking into account the history and context of a request, as in the cases referred to above, and taking into account the history and context of other requests made by a requester or other dealings between the requester and the public authority. The former is an entirely proper and valid consideration. The latter risks crossing the line from treating the request as vexatious, to treating the requester is vexatious. That line, in our view, was crossed in the present case.”

Robin Hopkins