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

Commercial prejudice: the importance of precise and limited redactions

August 17th, 2012 by Robin Hopkins

In the recent decision in UK Coal Mining v IC, Nottinghamshire County Council & Veolia [2012] UKUT 212 AAC, the Upper Tribunal has dismissed an appeal concerned with section 43(2) of FOIA (commercial prejudice): the First-Tier Tribunal (decision EA/2010/0142, on which see our post here) had been entitled to find that only very limited redactions could be made to provisions from a PFI contract for a waste incinerator. Upper Tribunal Judge Wikeley’s decision, while largely fact-specific, illustrates two significant points.

First, appeals against FTT decisions are liable to fail where they are simply attempts to re-run questions of fact and judgment.

Secondly, those seeking to rely on section 43(2) FOIA should be as precise as possible. Sometimes, for example, a clause in a contract might appear commercially sensitive at first glance, but upon closer scrutiny all that really warrants withholding might be the numbers.

The background to the decision is briefly as follows. UK Coal entered into a complex PFI agreement with the Council for an option to lease a former colliery site the site, with Veolia then sub-leasing the site from the Council to operate an incinerator. Upon a request for the contracts, the Commissioner found that regulation 12(5)(e) of the EIR (confidentiality of commercial or industrial information) was engaged, but that the public interest favoured disclosure. Upon what was effectively UK Coal’s appeal, the FTT found that the matter should have dealt with under FOIA rather than the EIR. Section 43(2) was engaged, but the public interest favoured disclosure of at some of the disputed information. Eventually, the Tribunal largely endorsed the Commissioner’s (very limited) redactions, rejecting the much more extensive redactions proposed by UK Coal. UK Coal’s appeal to the Upper Tribunal failed.

As regards challenges to the FTT’s decision, Upper Tribunal Judge Wikeley said that it was important that the FTT’s statement of reasons is read as a whole, rather than highlighting particular phrases and taking them out of their wider context. The FTT had allowed for the redaction of what it called “core financial information”, but this was simply a convenient shorthand not amenable to close textual analysis or to legal challenge per se.

Notably, he said that this of the FTT’s assessment:

“This was a quintessential issue of fact and degree for the tribunal at first instance to determine… The bottom line is that UK Coal is essentially seeking to re-argue questions of fact and judgement which have been litigated and adjudicated upon on their merits by the FTT.“

Judge Wikeley also warned that the caution against relying too heavily on other FTT decisions (see the Upper Tribunal’s decision in LB Camden v IC and Voyias GIA/2986/2011) applies with even greater force to attempts to rely on other decision notices by the ICO (as UK Coal sought to do here).

Turning to the section 43(2) redactions urged by UK Coal, the Upper Tribunal considered these to be “far too wide-ranging” and its arguments unsustainable. Some of the terms it sought to withhold were commonplace to commercial agreements. The FTT had approached its redaction analysis with care and precision, and correctly struck a balance between protecting UK Coal’s proper commercial interests under section 43 while ensuring that other information is disclosed. In some cases, the FTT allowed only for the redaction of figures rather than terms as a whole. This nonetheless ensured that a member of the public would have “no idea as to either the commercial methodology or the key financial and other numerical variables used”.

The Upper Tribunal’s decision cites specific examples of the scope of redactions to commercial terms which the FTT applied and which the Upper Tribunal found to be entirely understandable. The examples merit close attention by those seeking to withhold information in similar cases.

Robin Hopkins

LOCAL AUTHORITY’S LEISURE CENTRE BUSINESS PLAN: RELIANCE ON S. 43 FOIA UPHELD

March 10th, 2012 by Robin Hopkins

Local authorities are frequently asked to disclose information about their business arrangements with private sector partners: contracts, tender documents, business plans, financial models and the like. In Visser v IC and LB Southwark (EA/2011/0188), the appellant had requested the most recent business plan approved by the Council for Fusion Ltd, a leisure centre management company with whom the Council had contracted. The Council’s reliance upon s. 43 of FOIA – commercial interests – had been upheld by the Tribunal. While the case turned on the clarity and persuasiveness of the evidence of commercial harm, a few general observations are worthy of note.

The first concerns the way the Council had approached its disclosure decision. The Council had discussed the matter with Fusion, and the parties had disagreed on whether disclosure was appropriate. The Council had concluded that, since public money was being expended, the amount that the Council was paying Fusion ought to be in the public domain and open to scrutiny to ensure that public money was being used effectively. This was duly disclosed. However, the Council accepted Fusion’s argument that disclosing the profit and loss schedule would be damaging. It considered that the profit and loss account demonstrated Fusion’s approach and methodology to determine income and managing risks including its ratios and allowances for all expenditure items including staff costs, overhead, surplus and contingency.

The passage of time is often a pivotal factor in commercial sensitivity cases. By the time of the request in this case, the disputed information was two years old. Having considered the evidence, however:

“The Tribunal was satisfied that there was a continuity of approach to [Fusion’s] budgeting and business processes by Fusion which would be revealed by the disclosure of the 2007/8 business plan. This knowledge would be of value to Fusion’s competitors in future tendering processes relating to similar facilities and services. It therefore concluded that the age of the information was largely irrelevant, the commercial sensitivity of this specific information did not diminish over time and so the information remained commercially sensitive.”

The Tribunal also had this to say on the importance of preserving fair competition:

“The tribunal was satisfied that the Commissioner was right to emphasise the importance of the functioning of a fair market in this case. The evidence before the tribunal was that the provision of management services for leisure facilities owned by public authorities is a competitive market with a significant number of strong players within it. If the commercial secrets of one of the players in the market were revealed then its competitive position would be eroded and the whole market would be less competitive with the result that the public benefit of having an efficient competitive market would be to some extent eroded.”

Lastly, it agreed that there was a significant public interest in maintaining commercial confidences, as identified in Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council and others [2010] EWCA Civ 1214, [2011] BLGR 95 CA.

Robin Hopkins

FROM NAKED PHOTOS TO NUCLEAR ENRICHMENT: ROUNDUP OF NEW TRIBUNAL DECISIONS

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

CHANNEL 4 APPEAL: FOR FOIA PURPOSES, CONTRACTS ARE SEVERABLE

March 23rd, 2011 by Robin Hopkins

Channel 4 v IC and BSkyB (EA/2010/0134) saw the Tribunal consider a short, but potentially very significant point concerning the application of s. 43(2) FOIA, the exemption for commercial confidentiality, to long and complex contracts.

Channel 4 argued that where the substantial parts of a long and detailed contract are exempt under s. 43(2), then the whole contract is exempt. In other words, the public authority is not required to analyse the contract on a clause-by-clause basis. The Tribunal rejected all of Channel 4′s arguments in support of this position – including arguments based on the construction of s. 43(2), a comparison with the EIR, principles of contract, Veolia, ECHR rights and the cost and expense involved. The established approach, which requires clause-by-clause consideration of the application of exemptions, therefore remains intact.

PAYMENTS TO SENIOR PUBLIC SECTOR EMPLOYEES: ROUNDUP OF RECENT PERSONAL DATA CASES

February 22nd, 2011 by Robin Hopkins

The FOIA update paper given at last week’s 11KBW Information Law Seminar provides a roundup of recent caselaw in a few of the most common areas of Tribunal litigation.

One is commercially sensitive or confidential information: in particular, Veolia and its aftermath.

Another is information on planning applications and property developments: in particular, those cases subsequent to South Gloucestershire, namely Bristol City, Bath & North East Somerset and Elmbridge.

A third area is personal data: here the recent cases of Dun, Bryce, Ferguson and Ince have all – like the cases mentioned above – been covered in Panopticon posts. Two others to take note of, however, both in the context of public sector pay (other than salaries).

One concerns bonus payments to public sector employees. Davis v IC and Olympic Delivery Authority (EA/2010/0024) saw the Tribunal distinguish between bonus information and performance assessment information. It ordered disclosure of certain information relating to the bonuses of senior employees of the ODA: the maximum performance-related bonuses to which the chief executive and communications director were contractually entitled, and the percentage of the maximum available bonus actually paid to certain other members of senior management. The Tribunal decided, however, that details of the performance targets which individuals failed to hit to 100% satisfaction should not be disclosed.

The other recent case on the personal data exemption is Pycroft v IC and Stroud District Council (EA/2010/0165). The context was an auditor’s report which observed that the local authority’s former Strategic Director of Housing “did not ensure that staff had taken ownership of managing the budgets”. The applicant requested the details of this Director’s early retirement package. The Commissioner found that disclosure of this information would not be fair, and the Tribunal agreed. It should be noted by those dealing with requests for information about payments to allegedly poorly-performing public sector employees.

COMMERCIAL INFORMATION AND HUMAN RIGHTS – NEW TRIBUNAL DECISION

January 7th, 2011 by Anya Proops

Last month I blogged on a recent Tribunal decision which considered whether, following Veolia v Nottinghamshire CC [2010] EWCA 1214 (“Veolia”), human rights considerations had a role to play in FOIA/EIR  cases involving the potential disclosure of confidential commercial information – see my post on the decision in Staffordshire CC v IC & Sibelco here. This month the Tribunal has promulgated another decision on the issue: see Nottinghamshire CC v IC & Veolia & UK Coal Mining Ltd (EA/2010/0142). The Notts case was concerned with a request for disclosure of particular information contained in a waste management contract between the council and Veolia. The particular information in dispute before the Tribunal was information contained in a schedule to that contract. In essence, the schedule detailed the leasing arrangements under which the council had an option to lease certain land from UKCM. The intention was that, once the leasing option was exercised by the council, Veolia would take a sub-lease of the land and then would build and maintain an incinerator on the land for the purposes of discharging its waste management obligations under the contract.

Contrary to the position adopted by the Commissioner, the Tribunal took the view that, despite the fact that it formed part of an overarching waste management contract, the information in the schedule did not in itself amount to environmental information (i.e. as it was simply information relating to prospective commercial leasing arrangements); accordingly, disclosure of the disputed information fell to be considered under FOIA rather than EIR. The applicable FOIA exemption was the commercial interests exemption (s. 43).

The Tribunal went on in its decision to comment on the application of human rights principles to the appeal, those principles having been considered by the Court of Appeal in the Veolia case. In essence, the Tribunal appears to have held that: (a) following Veolia, valuable commercial information could constitute a ‘possession’ of UKCM under Article 1 of Protocol 1 ECHR; (b) that, if the disputed information amounted to a ‘possession’, then UKMC had a right to privacy in respect of that information under Article 8(1) ECHR and, accordingly (c) disclosure under FOIA of that information would only be lawful if it was justified for the purposes of Article 8(2) ECHR. However, having reached these conclusions, the Tribunal appears to have taken the view that in fact these human rights considerations did not add very much to the overall analysis under FOIA, particularly as the requirements of the Article 8(2) justification test were already effectively reflected in the public interest balancing exercise which was built into s. 2 FOIA (see para. 74 of the decision).

It remains to be seen whether those with an interest in avoiding disclosure of commercially sensitive information will seek to argue in other cases before the tribunal that human rights considerations do in fact alter the analysis of the public interest balance under FOIA and, in particular, that they increase the weight in favour of maintaining the s. 43 exemption.

The Open University? Application of FOIA to University Course Materials

December 11th, 2009 by Anya Proops

The question of whether and to what extent FOIA can be used as a device to open up public access to educational resources is obviously an important one for our society. It is a question which was very recently considered in the case of University of Lancashire v IC (EA/2009/0034). In that case, the Tribunal was called upon to decide whether a university (UCLAN) had acted unlawfully in refusing a request made under FOIA for disclosure of course materials relating to a BSc degree course in homeopathy. The request had been refused initially on the basis that disclosure of the course materials would damage UCLAN’s commercial interests (application of s. 43 FOIA). Subsequently, when the matter came before the Commissioner, UCLAN also argued that it was entitled to refuse disclosure because of the risks disclosure would pose to the effective conduct of its affairs (application of s. 36 FOIA). The Commissioner held that UCLAN had erred in refusing to disclose the course materials, save that he accepted that certain elements of the course materials, and particularly empirical case studies, could be withheld under s. 41 FOIA (the confidential information exemption). UCLAN appealed the Commissioner’s decision to the Tribunal.

The Tribunal dismissed UCLAN’s appeal. In summary, it held that:

·       with respect to the application of s. 43 FOIA (the commercial interests exemption):

o      despite being a charitable institution, UCLAN did have ‘commercial interests’ and those commercial interests were engaged in respect of teaching materials produced for its degree courses (§31);

o      however, it could not be said that, at the time of the request (July 2006), there was any real and significant risk that disclosure of the homeopathy course materials would prejudice UCLAN’s commercial interestsand accordingly s. 43 was not engaged (§§32-39);

o      in any event, had s. 43 been engaged, the public interest balance under s. 2 FOIA would have weighed firmly in favour of disclosure (§§40-50).

·       with respect to the application of s. 36 FOIA (the public affairs exemption), the exemption was not engaged because the opinion of the qualified person relied on for the purposes of this section was neither reasonable in substance nor reasonably arrived at (§§52-62).

The following aspects of the Tribunal’s decision are particularly worthy of note:

·       in line with the earlier Student Loans case, the Tribunal took a broad approach to the concept of ‘commercial interests’ for the purposes of s. 43. It readily accepted that universities could have commercial interests in the courses which they ran;

·       UCLAN argued before the tribunal that the course materials were exempt from disclosure not least having regard to the facts that: (a) they contained a significant amount of third party copyrighted information and (b) disclosure of that copyrighted information under FOIA would disincline third parties from contributing to course materials in the future. The tribunal rejected these arguments. It did so on the basis that: (1) disclosure of information under FOIA would not in any way have diluted any copyright enjoyed by the third parties and (2) there was in any event no sufficient evidence before the tribunal to substantiate UCLAN’s case that disclosure of the copyrighted material would have had an alienating effect on third party contributors.

·        the Tribunal highlighted the degree of rigour which must be applied when the relevant qualified person is seeking to formulate an opinion which engages s. 36. It also highlighted that the public authority must itself provide evidence that the person who reached the relevant opinion was a ‘qualified person’ for the purposes of s. 36 (§53);

·       on the question of the public interest test, the Tribunal found that there were strong public interests in disclosure. Those interests included both: (1) a general public interest in members of the public being able to test the educational value of publicly funded degree courses and (2) a specific public interest in accessing information relating to a homeopathy degree course which was by its very nature inherently controversial.

The parties were represented by 11KBW’s Tim Pitt-Payne (counsel for UCLAN) and Anya Proops (counsel for the Commissioner).