The Equitable Life collapse: strong public interests needed to trump s. 30

September 14th, 2012 by Robin Hopkins

Wynn v IC and Serious Fraud Office (EA/2011/0185) concerned the dramatic closure in late 2000 of the insurer Equitable Life. Both the Ombudsman and the Penrose Inquiry examined the collapse and published their reports. Attempts to compensate those who lost money have been pursued through the courts and considered by parliament.

The Serious Fraud Office became involved to consider whether any criminal charges should be brought against those involved in the collapse. Pursuant to its functions under the Criminal Justice Act 1987, it analysed the material and took legal advice in order to decide whether or not to commence a criminal investigation. In effect, it investigated whether or not to investigate. In December 2005, the SFO announced that it would not commence an investigation.

Mr Wynn was dissatisfied with that decision. Eventually, in 2009, he asked the SFO for all of the information it held on Equitable Life. It provided him with some information – importantly, this included (pursuant to a direction from the ICO) a ‘vetting note’, which summarised the SFO’s reasoning on why successful prosecutions were unlikely. The SFO withheld the remainder of the voluminous information it held, relying on s. 12 (cost of compliance) for some it and ss. 30(1) (investigations) and 42 (legal professional privilege) for the rest. The ICO agreed.

Mr Wynn’s appeal to the Tribunal was dismissed. The Tribunal was satisfied that the s. 12 estimate was reasonable and well evidenced. S. 30(1) was engaged: a preliminary investigation (or, as I have put it above, an investigation into whether to investigate) was an investigation for s. 30(1) purposes nonetheless.

The public interest favoured maintaining that exemption. Case-specific points included the substantial transparency delivered by the Ombudsman and Penrose Inquiry reports and the SFO’s vetting note. There was nothing to suggest that the SFO had got things wrong.

The decision also contains a number of points of more general application. The Tribunal endorsed the account given in Breeze v Information Commissioner (EA/2011/0057) of the concerns protected by s. 30(1): protecting witnesses and informants (including their confidentiality), maintaining the integrity of the prosecution and judicial process, and ensuring that the court remained the sole forum for determining guilt. The ‘safe space’ point was also important: prosecutors need a safe space in which to make their decisions without any fear their frank assessments being publicised too soon after the event.

Notwithstanding the passage of time between the conclusion of that investigation and the request under FOIA, those factors counted very heavily in favour of maintaining the exemption under s. 30(1). The Tribunal endorsed this general proposition from Public Prosecutor of Northern Ireland v IC (EA/2010/0109): “in order for disclosure to be ordered in such cases public interest factors of at least equal weight would have to be adduced. A general interest in transparency as to a prosecution authority’s decisions will not be sufficient. Something substantial and particular to the information would be required” (paragraph 35).

The general upshot is that, in recent years, s. 30(1) has grown into a ‘strong’ exemption, i.e. one that requires weighty and particular factors to ‘defeat’. ‘Safe space’ arguments have also fared somewhat better in the prosecution context than the policy-making
context (under s. 35 of FOIA) in Tribunal decisions over the last year or two.

Finally, it is long-established that s. 42(1) is a ‘strong’ exemption, requiring weighty factors if disclosure of privileged information is to ordered. None were forthcoming in Wynn.

Robin Hopkins

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

August 17th, 2012 by Robin Hopkins

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

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

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

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

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

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

Robin Hopkins


April 12th, 2012 by Robin Hopkins

I blogged yesterday (see below) on APPGER’s litigation in the US courts concerning information about security bodies and their role in extraordinary rendition. The UK’s First-Tier Tribunal has today promulgated its decision on a separate set of requests made by APPGER to the Foreign & Commonwealth Office. The decision deals primarily with sections 23, 27, 35, 42 and the ‘neither confirm nor deny’ provisions under sections 23(5) and 24(2) of FOIA.

One of my fellow Panopticonners will post some commentary on the case shortly. In the mean time, here is the hot-off-the-press decision:



January 23rd, 2012 by Robin Hopkins

In Jackson v IC and the Electoral Commission (EA/2011/0136), the appellant had requested information in connection with an investigation made into donations made to the Liberal Democrat Party by the company 5th Avenue Partners. The company’s sole director was Michael Brown, who had been convicted of theft, money laundering and perverting the course of justice. It was alleged that the company was therefore an impermissible donor under the law governing donations to political parties. The Electoral Commission did not uphold that allegation: it issued a short press statement explaining that there was no legal justification for piercing the corporate veil in connection with the company’s donation.

The requester asked for the list of legal authorities upon which that opinion was based.

The request was refused on the grounds of s. 42 of FOIA (legal professional privilege). The Commissioner upheld the refusal, and so has the Tribunal: it has confirmed that a simple list of cases can attract LPP, and it found that – in view of the limited assistance this list would offer the requester – the public interest favoured maintaining the exemption.

Robin Hopkins


December 6th, 2011 by Robin Hopkins

In William Thackeray v IC (EA/2011/0069), the requester asked the Home Office for information it holds about Scientology. The resultant appeal to the Tribunal is the latest consideration of the FOIA exemptions for prejudice to the effective conduct of public affairs (s. 36) and legal professional privilege (s. 42). The appeal failed, and reliance on both these exemptions was upheld.

The s. 42 point was short: can litigation privilege be relied upon where judicial proceedings which have been formally instituted are subsequently withdrawn? Answer: yes. The established test with regard to the application of this kind of privilege is whether there is a reasonable prospect of litigation existing at the time of the creation of the document.

Thackeray is an important decision for its review of the general principles underpinning reliance on s. 36. Public authorities often run into difficulty in seeking to obtain the opinion of the qualified person (the precondition for engaging that exemption). Particular issues arise as to the timing of and basis for the QP’s opinion, i.e. when is the latest an opinion can be obtained, and what material must the QP consider if his or her opinion is to be reasonable?

The Tribunal in Thackeray considered these two issues. As to timing, it addressed this particular question: can the opinion of the QP be obtained after the statutory 20-day period for responding to a request, but before the conducting of the public authority’s internal review? In part, this is about whether an internal review is capable of remedying flaws in an original refusal notice. Here there was a refusal in June 2009, and the QP’s opinion was obtained in November 2009. The Appellant argued that this delay undermined the reasonableness of that opinion.

In answering that question, the Tribunal made the following general observations about the use of s. 36:

  • There is a strong argument for saying that the qualified person should be at or towards the very top level of accountability.
  • This responsibility cannot be delegated.
  • The precise role of the opinion is to state whether, in that person’s view, the prejudices under s. 36 are likely to arise from disclosure. An opinion is not about the public interest.
  • The Commissioner’s role is to assess that opinion for reasonableness, akin to a Wednesbury analysis in judicial review claims. The Commissioner can only reject the substance of the opinion if it was one that no reasonably qualified person would have taken.
  • The manner and timing of the obtaining of that opinion can be considered as part of that scrutiny of reasonableness.
  • To obtain the opinion ‘late’ (i.e. after the initial refusal) is not akin to ‘late reliance’ upon an exemption.
  • The provision of the opinion by the internal review stage is sufficient. The Tribunal endorsed the approach in McIntyre v IC and MoD (EA/2007/0061), where it was held that an opinion can suffice to engage s. 36 where it is reasonable in substance, even if it was arrived at in a flawed or unreasonable manner.

As to content (i.e. the question of what must be before the QP when he or she forms her opinion), the Tribunal considered whether the QP must give consideration to the application of that FOI exemption, and whether he or she must consider the actual disputed information before reaching their opinion. This arises particularly in relation to government ministers, who in practice often make such decisions based on submissions from civil servants, rather than on the basis of actual consideration of the underlying material for themselves.

Does such an approach undermine reliance on s. 36? No, said the Tribunal. Failure to inspect the disputed information will not without more render the opinion redundant or unreasonable. It is sufficient if it is shown that the qualified person’s opinion was based on a proper understanding of the disputed information. The civil service approach, and other such approaches to obtaining the opinion of a QP, survives intact.

Robin Hopkins

High Court Decision on Section 42 FOIA

February 10th, 2009 by Anya Proops

The High Court today handed down an important judgment on the application of the legal professional privilege exemption in section 42 FOIA ([2009] EWHC 164 (QB)). The case concerned an application for disclosure of information held by the DTI (subsequently the Department of Business and Regulatory Reform). The requested information related to the Government’s decision to include a provision in the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 which expressly excluded daily fee paid judicial office holders from the ambit of the Regulations. The request was made by Mr O’Brien QC, who himself sat as a daily fee paid judicial office holder. DBERR refused disclosure of the requested information on the basis that certain of the information was exempt under section 35 FOIA (policy information) whereas other information was exempt under section 42 (FOIA) (legally privileged information). Reliance was also placed on section 36 FOIA (prejudice to effective conduct of public affairs). The Commissioner rejected Mr O’Brien’s complaint about DBERR’s refusal decision, save that he did order that the content of one of the disputed documents be disclosed. The Tribunal upheld Mr O’Brien’s appeal against the Commissioner’s decision. It held that whilst the exemptions afforded under sections 35 and 42 were engaged in respect of the disputed information, on an application of the public interest test, the public interest weighed in favour of the information being disclosed (EA/2008/0011).

DBERR, which was named as an additional party before the Tribunal, appealed the decision to the High Court. The Commissioner participated in the appeal, not on the basis that he was formally supporting or resisting the appeal, but rather because: (a) he had some ‘concerns’ about the way in which the Tribunal had reached its conclusions in this case; and (b) he considered it important to draw the court’s attention to these concerns, not least because of the precedent-setting effect of the Tribunal’s decision. At the heart of the appeal before the High Court was the question whether the Tribunal had lawfully applied the section 2(2)(b) public interest test to the dipsuted information.

Wyn Williams J upheld the appeal in part. He found that the Tribunal’s application of the public interest test to information falling within the ambit of section 35 could not be impugned. However, he concluded that the Tribunal’s application of the public interest test to the information falling within the ambit of section 42 was fatally flawed. He reached this conclusion in particular on the basis that: (a) in accordance with a long line of Tribunal decisions starting with Bellamy v ICO, it was clear that there was a strong public interest in maintaining the confidentiality of legally privileged information which was effectively built into the section 42 exemption; and (b) the Tribunal’s reasons did not clearly demonstrate that it had taken this strong public interest into account when weighing the public interest balance. The importance of the judgment lies in the fact that it constitutes an authoritative judgment on how legally privileged information should be dealt with under FOIA.

The judgment is also significant in that: (1) it criticises the Tribunal for having failed to state clearly which of the disputed information fell within section 35 and which fell within section 42 (the Tribunal had simply found that the information fell within section 35 ‘and/or’ section 42); and (2) it confirms that, when dealing with the application of the public interest test where a number of exemptions are engaged, the Tribunal should ensure that it does not simply bundle all the public interest test considerations together but instead conducts discrete analyses of the public interests relevant to particular exemptions.

Closed Sessions in High Court Appeals

January 27th, 2009 by Anya Proops

Last week the High Court heard an appeal brought by the Government against the decision of the Information Tribunal in O’Brien v Information Commissioner & Department for Business Enterprise and Regulatory Reform. The appeal concerned, in particular, whether the Tribunal had erred when applying the public interest test in the context of the exemptions afforded under section 35 (policy development) and section 42 (legal privilege) FOIA. During the course of the appeal, questions where raised by the Respondent (Mr O’Brien) as to whether the Court had jurisdiction to consider: (a) an annex to the decision which the Tribunal had stated should remain confidential to the Commissioner and BERR, pending any further appeal; and (b) the disputed information which had been withheld by BERR. It was argued on behalf of the Commissioner: (a) that the Court had jurisdiction to consider the confidential annex as that annex clearly formed part of the decision which was being appealed; and (b) that the Court had power to consider the disputed information in closed session pursuant to CPR 52.10(1). In summary, CPR 52.10(1) affords the court all the powers of the lower tribunal which is being appealed from, subject to any enactment which precludes the court enjoying such powers.  A judgment on the appeal is awaited.

Tribunal decision:’Brien%20v%20ICO%20(EA-2008-0011%20%5BFS50082127%5D)%20Decision%2007-10-08.pdf