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

Statutory bars on disclosure: don’t construe too widely

June 1st, 2012 by Robin Hopkins

The Tribunal’s decision in Cubells v IC and Wrightington, Wigan & Leigh NHS Foundation Trust (EA/2011/0183) is notable for the approach taken to construing a statutory bar on disclosure for the purposes of s. 44 of FOIA. There are hundreds of bars. Usually, they were drafted prior to FOIA. Tricky issues often arise as to how widely the prohibition extends, especially in a FOIA world.

Mr Cubells’ mother died while in the care of the Trust. He complained to the Parliamentary and Health Service Ombudsman, who declined to investigate. Mr Cubells then made a request under FOIA for information passed by the Trust to the Ombudsman pursuant to his complaint, and internal Trust information about the complaint.

The Trust refused the request, relying on s. 44 of FOIA and the prohibition of disclosure imposed by s. 15 of the Health Service Commissioners Act 1993, which provides that:

“Information obtained by the [Ombudsman] or his officers in the course of or for the purposes of an investigation shall not be disclosed except-

(a) for the purposes of the investigation and any report to be made in respect of it…”

The Commissioner agreed – but the Tribunal did not. Interestingly, it allowed and considered submissions by Maurice Frankel of the Campaign for FOI in support of Mr Cubells’ appeal. Relevant points from those submissions included the following. The prohibition was designed to provide reassurance to those supplying information that no improper disclosure of that information will occur. The prohibition should not interpreted as meaning that any third party holding information which it happens also to have supplied to the Ombudsman was itself bound by the same prohibition. Otherwise, strange results would follow. For example, the Trust would be prevented from even sharing information which had been passed to the Ombudsman with a patient’s GP or another health authority into whose area the patient moved. On the ICO’s reading, the Trust would be bound indefinitely by a prohibition on disclosure apparently aimed not at the Trust but at the Ombudsman. That cannot have been what Parliament intended.

The Campaign for FOI also raised arguments under the European Convention on Human Rights: an outcome that resulted in a blanket prohibition on the disclosure of information about the medical treatment of a family member would breach Article 8 ECHR. Also, on the ICO’s reading, the prohibition would extend to a complainant as well – in other words, if a complainant passed information to the Ombudsman, they would thereafter be prohibited from disclosing it further. That would breach Article 10 ECHR.

Before the Tribunal, the ICO relied on the judgment of Mrs Justice Dobbs in R (on the

application of Kay) v Health Service Commissioner [2008] EWHC 2063 (Admin) in contending that the prohibition should regarded as extending to both those to whom information was passed by the Ombudsman as well as those from whom the Ombudsman obtained it.

The Tribunal disagreed. It distinguished Kay and concluded that the prohibition:

“should be interpreted as imposing a prohibition only on the Ombudsman and her staff. It may follow, from what we have said above, that the prohibition should continue to apply, or should be imposed, if the Ombudsman needs to disclose any of the information she has obtained to a third party. There is no inconsistency there. The information, once obtained during an investigation, should obviously not be released from the prohibition on disclosure just because it becomes necessary for the Ombudsman to disclose it to a third party. There is no logical reason, however, for the prohibition to be imposed on those holding information that has been shared with the Ombudsman. The profoundly unattractive consequences which Mr Frankel outlined demonstrate the absurdity of such an outcome.”

In reaching its conclusion, the Tribunal did not need to consider the ECHR arguments. Those arguments may well, however, be raised again in future cases.

Robin Hopkins

CONSTRUCTION WORKER ‘BLACKLISTING’ DATABASE – NEW TRIBUNAL DECISION

July 29th, 2011 by Robin Hopkins

The Tribunal has this week given its decision in Ritchie v IC (EA/2010/0041). The case involved a “blacklist” which had been compiled and maintained by an organisation called the Consulting Association. The database consisted of the names and personal details of workers in the construction industry who had engaged in trade union or other activities in furtherance of employment rights. A number of major companies in the construction industry paid annual subscriptions and, as potential employers, were able to access individual records for a fee. The ICO investigated the matter, successfully prosecuted the proprietor of the Consulting Association and seized the database. It invited potentially affected workers to make subject access requests whereby they could receive information about them held in the database.

The General Secretary of the union UCATT subsequently requested from the ICO all files containing references to a number of named trade unions. This was one of the (relatively rare) cases in which the ICO was both the public authority and the regulator.

The ICO refused the request, relying on section 44 FOIA (disclosure prohibited under an enactment) in combination with section 59(1) DPA, which (to paraphrase and summarise) prohibits disclosure of information obtained by the Commissioner “under or for the purposes of the Information Acts” unless there is “lawful authority” for that disclosure. The Tribunal has upheld that refusal.

No commentary from me on this one, given my involvement in the case. I shall, however, point out that the decision covers the following issues: scope of the request; whether information is “publicly available”; the meaning of “lawful authority” under section 59(1) DPA; whether requests by unions are made with the “consent” of members; whether disclosure would be ”necessary in the public interest”; personal data; Articles 9, 10 and 11 of the ECHR.

Robin Hopkins

GASKELL: COMMISSIONER CAN, IN EXCEPTIONAL CIRCUMSTANCES, DECLINE TO ORDER DISCLOSURE

July 22nd, 2011 by Robin Hopkins

In my recent post on Sittampalam v IC and BBC (EA/2010/0141), I explained that the Tribunal took the view that the Commissioner does have a discretion to decline to order disclosure, even where information was incorrectly withheld at the time, due to subsequent developments such as legislative changes, inquiries or court proceedings and so on. In so doing, that Tribunal differed from the decision in Gaskell v IC (EA/2010/0090), where it was held that no such discretion existed.

The Upper Tribunal (UT Judge Wikeley) has this week allowed an appeal against the Gaskell decision, meaning that the Sittampalam position has now been confirmed as correct. The issue is put succinctly at paragraph 10 of UT decision GIA 3016 2010:

“The reasoning in the Commissioner’s Decision Notice can be summarized simply. Section 44(1)(a) of FOIA provides an absolute exemption where disclosure by the public authority holding it “is prohibited by or under any enactment”. Section 18(1) of CRCA [Commissioners for Revenue and Customs Act] 2005 provides that “Revenue and Customs officials may not disclose information which is held by the Revenue and Customs in connection with a function of the Revenue and Customs.” Section 18(1) did not apply to the Rent Service at the time that Mrs Gaskell made her original request. However, by the time of his Decision Notice, Rent Service staff had become HMRC officials. If the Commissioner were to order disclosure, those staff would be contravening section 18 of CRCA 2005.”

The First-Tier Tribunal found that the Commissioner has no discretion to decline to order disclosure in such circumstances (and that if he did have such a discretion, he exercised it incorrectly in this instance). In contrast, however, the UT concluded as follows (paragraph 31; my emphases):

“In conclusion, I agree with both counsel [11KBW’s Karen Steyn and Ben Hooper] that the requirement under section 50(4) that the decision notice should specify the steps which must be taken by the public authority does not amount to a mandatory obligation on the Commissioner to require steps to be taken to comply with the requirements of sections 1(1), 11 or 17 in every case, although that consequence will usually follow, save for exceptional cases such as the present one. As a matter of law the mandatory element of section 50(4) is that, if the Commissioner considers that the public authority ought to take any steps to comply with those statutory requirements, then he must specify them in the decision notice, along with the defined period within which they must be undertaken.”

The UT went on to decide that the Commissioner had exercised his discretion correctly in this case.

UT Judge Wikeley’s judgment also includes both a Jane Austenism and the first citation of the Information Law Reports (or Info LRs), launched by Justis and 11KBW this month: Office of Government Commerce v Information Commissioner [2008] EWHC 737 (Admin); [2010] QB 98; [2011] 1 Info LR 743.

Robin Hopkins

UPPER TRIBUNAL DECISION IN NEWCASTLE UNIVERSITY V IC & BUAV: MEANING OF “HELD”, APPLICATION OF S. 44 FOIA

May 25th, 2011 by Robin Hopkins

The Upper Tribunal has published its decision in the case of University of Newcastle upon Tyne v Information Commissioner and BUAV [2011] UKUT 185 (AAC). The case concerned requests by BUAV (the British Union for the Abolition of Vivisection) for information on licenses for animal experimentation issued under the Animal (Scientific Procedures) Act 1986 (ASPA). The University’s response was that it did not hold the requested information (rather, the information was held by individual researchers) and that, even if it did, the exemption under s. 44 FOIA applied, in that disclosure otherwise than under FOIA would involve the University committing an offence under s. 24 ASPA. The Tribunal disagreed, and found against the University on both points. The University’s appeal to the Upper Tribunal has failed on both points.

On the question of whether the University “held” the information for the purposes of s. 3(2) FOIA, the UT found that the present case was a straightforward application of the rules of attribution of knowledge to a corporate body. Reliance on the cases of McBride and Digby-Cameron did not assist the University: in both cases, the crucial issue was whether the information was held by the public authority “otherwise than on behalf of another person”, whereas the present case concerned the meaning of “hold”.

The UT’s analysis of the meaning of “holds” will have broad application to FOIA requests. UT Judge Wikeley approved the following passage from the Tribunal’s decision as a correct statement of the law:

“The effect of this subsection [s. 3(2) FOIA] is to confirm the inclusion of information within the scope of FOIA s1 which might otherwise have been arguably outside it. The effect of paragraph (a) is that information held by the authority on behalf of another is outside s.1 only if it is held solely on behalf of the other: if the information is held to any extent on behalf of the authority itself, the authority ‘holds’ it within the meaning of the Act. The effect of paragraph (b) is that the authority ‘holds’ information in the relevant sense even when physically someone else holds it on the authority’s behalf.”

The test is not whether the public authority “controls” or “possesses” or “owns” the information in question; simply whether it “holds” it. “Hold” is an ordinary English word and is not used in some technical sense in FOIA; it should not be re-defined or replaced, as to do so would risk distorting its ordinary meaning. The UT’s interpretation of “hold” means that, in general, public authorities should base their cases for refusal on exemptions rather than on arguments about whether they “held” the information for s. 3(2) purposes. See these statements from UT Judge Wikeley:

“A key feature of the FOIA regime is the need to balance the interests of the requester and the public interest in the free flow of information with the legitimate interests of public authorities and third parties.  Moreover, that balance is struck not by over-complicating the simple factual concept of whether information is “held” by a public authority – rather, it is achieved by the matrix of absolute and qualified exemptions and the application, where appropriate, of the public interest test.”

and

“I am reasonably confident that if the ordinary officious commuter on the Tyne & Wear Metro were presented with the scenario in the present case, their response would be along the lines of: “Has the University got the information BUAV requested? Of course it has. But presumably there may be some defences it can use so it doesn’t have to disclose some or all of it?””

Turning to s. 44(1)(a) FOIA, the UT noted the wording of the exemption and emphasised these words “if its disclosure (otherwise than under this Act) by the public authority holding it … is prohibited by or under any enactment”. It analysed s. 24(1) ASPA and asked itself whether the University (as opposed to any individuals) would not be committing an offence under that section if it disclosed this information otherwise than under FOIA. Its answer was no. The University therefore cannot rely on s. 44 in these circumstances, and will have to consider other exemptions if it wishes to withhold the information.

Robin Hopkins

PUBLIC LAW REASONABLENESS NOT A MATTER FOR THE COMMISSIONER OR TRIBUNAL

April 17th, 2011 by Robin Hopkins

The absolute exemption at s. 44 FOIA applies where the disclosure of the requested information is prohibited under any enactment. Many statutes contain such prohibitions, often subject to specified exceptions or tests. If a public authority applies that statutory regime incorrectly or in a “Wednesbury unreasonable” way – that is, if it acts unlawfully in a public law sense  – then the precondition for reliance on s. 44 FOIA falls away.

This question arises: does FOIA presume “procedural inclusivity” (i.e. the Commissioner and/or tribunal have jurisdiction to consider such public law questions) or “procedural exclusivity” (i.e. public law is a matter for the courts only; requesters must thus seek judicial review)?

In Morrissey v IC and Ofcom (EA/2009/0067), the first-tier tribunal followed the approach taken in Hoyte v Civil Aviation Authority (EA/2007/0101) in supporting inclusivity. In other words, it considered that the Commissioner and tribunal do have jurisdiction to conduct “reasonableness reviews”.

In Morrissey, the tribunal asked itself whether Ofcom had acted reasonably in withholding information under s. 44 FOIA in reliance on s. 393(2)(a) of the Communications Act 2003. Its answer was ‘yes’. Ofcom nonetheless appealed, on the grounds that “reasonableness reviews” are beyond the statutory powers of the Commissioner and tribunal.

The Upper Tribunal has agreed with Ofcom, and endorsed procedural exclusivity: see GIA/605/2010. (Its decision was not concerned with the ultimate outcome of the case – which concerned a request for information about Ofcom’s approach to equal opportunities – but simply with this point of principle).

Its reasoning was as follows. Disparate caselaw illustrates a presumption that lower courts and tribunals can resolve public law prerequisites to their “core business” – but caselaw does not show any presumption that regulators can do so. Under FOIA, the tribunal’s jurisdiction is parasitic upon that of the regulator, the Commissioner. The Commissioner’s jurisdiction is to decide whether a request “has been dealt with in accordance with the requirements of Part I [of FOIA]” (s. 50(1) FOIA). (The tribunal’s jurisdiction is governed by s. 58 FOIA: this says it must determine whether the decision notice was “in accordance with the law” – rather than “Part I of FOIA”. It does not appear that the Upper Tribunal considered anything to turn on this difference).

As to the construction of the particular provision in question, the Upper Tribunal found that the purpose of s. 393 of the Communications Act 2003 is to reassure commercial broadcasters that Ofcom can only lawfully disclose their information if it considers it right to do so for one of the purposes in s. 393(2).

The Upper Tribunal was clear as to the broader implications of its decision: “it must be for the public authority initially to determine whether the information requested is exempt “by virtue of” s. 44” (paragraph 54).

It concluded, however, that judicial review is not the only alternative in these circumstances: the first-tier tribunal may not have jurisdiction over such public law points, but the Upper Tribunal does – provided it has the blessing of the administrative court in any given case.

BACKDOOR ATTEMPT TO OBTAIN IRAQ WAR CABINET MINUTES FAILS

December 2nd, 2010 by Robin Hopkins

The minutes of the Cabinet meetings at which it was decided to go to war in Iraq have resurfaced for consideration by the Tribunal. First time round, the Tribunal agreed with the Commissioner that the minutes should be released, but the final word went to Jack Straw, by means of a ministerial veto – which was not subject to a judicial review challenge – issued under section 53 FOIA.

The requester in that case subsequently sought a backdoor route to the minutes, by requesting them under FOIA from the ICO itself. He also sought “background papers which show the processes of thought behind the Information Commissioner’s conclusion that the Cabinet minutes in question should be disclosed”. The ICO did not hold the minutes themselves, but it did hold some handwritten notes made by the then Commissioner, Richard Thomas, and by an ICO caseworker when visiting the Cabinet Office to inspect the minutes. It also held a confidential annex to the Decision Notice, which fell within the veto. All of these he refused to disclose.

The usual FOIA complaints and appeals process ensued, with the Commissioner issuing a decision notice in respect of his own refusal, and then defending that notice before the Tribunal in Lamb v IC (EA/2009/0108).

The basis of the refusal was section 44 FOIA, which provides that information is exempt if its disclosure is “prohibited by or under any enactment”. The Commissioner relied for the latter on section 59 of the DPA, which says that the Commissioner may not disclose information he obtained under the auspices of the Act “unless the disclosure is made with lawful authority”, which arises where “having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary in the public interest”.

As the Tribunal accepted, this is a much higher threshold than the usual public interest test under FOIA: under section 59, there is effectively a presumption against disclosure.

The Tribunal was satisfied that this information was “obtained from” the Cabinet Office, notwithstanding the Appellant’s challenge on that point.

It also agreed with the Commissioner’s application of section 59. Much of the Appellant’s argument turned on the importance of the material he sought. This, said the Tribunal, overlooked the point that the Commissioner had already decided in the Appellant’s favour concerning the Cabinet minutes which he sought. The Tribunal also commented that:

“It is no part of the freedom of information regime to provide a mechanism by which a party who prosecuted a successful complaint to the Information Commissioner in the past may have his or her winning margin reassessed in the light of events subsequent to the date of the original victory”.

The Tribunal did not comment on whether the mere existence of the veto gave rise to the engagement or effectiveness of section 59. Nor did it speculate as to the circumstances in which reliance on section 59 could be defeated – although the wording of that section clearly envisaged this prospect.