EIR EXCEPTIONS – WHAT DOES IT ALL ADD UP TO?

January 28th, 2010 by Timothy Pitt-Payne QC

In Ofcom v Information Commissioner [2010] UKSC 3 the Supreme Court was asked to consider how public authorities should approach the exceptions to disclosure set out in the Environmental Information Regulations 2004 (EIR).  Most of these exceptions are subject to a public interest test.  The public interest in maintaining an exception has to be measured against the public interest in disclosure.  Unless the public interest in maintaining the exception outweighs the public interest in disclosure, the information must be disclosed.

But what happens if there are a number of exceptions in play?  Do you look at each exception in turn, assessing the public interest in maintaining that exception as against the public interest in disclosure?  Or do you aggregate all of the exceptions, assess the combined public interest in maintaining them, and measure that combined interest against the public interest in disclosure?

In the Ofcom litigation, the Court of Appeal had decided in favour of aggregation.  The Supreme Court was inclined (by a 3-2 majority) to uphold that decision.  But the Supreme Court also recognised that the answer was unclear, and depended on the construction of Directive 2003/4/EC.  So the Court has referred the issue to the European Court of Justice.

There is now a practical difficulty:  in cases where the aggregation point might make a difference to the outcome, what should the Tribunal do? Should it follow the Court of Appeal?  Should it wait for the ECJ?  Or should it reach its own view on how the legislation should be interpreted?  And Ofcom is an EIR case: what about aggregation under FOIA?

In practice nobody will want the outcome of their case to turn on a point that may not be resolved for some years.  It will be much more attractive for parties to argue that aggregation makes no difference to the outcome of their case.

 

 

THE PERSONAL IS POLITICAL – ACCESSING NICK GRIFFIN TRIAL RECORDS UNDER FOIA

January 23rd, 2010 by Anya Proops QC

The Guardian reports today that the CPS has refused a request for disclosure of its records of the 1998 race-hate trial of Nick Griffin. In the year before he was elected leader of the BNP, Mr Griffin was given a suspended prison sentence after being convicted of an offence under the Public Order Act 1986. The prosecution case centred on a magazine edited by Mr Griffin in which he dismissed the Holocaust as a hoax. The Guardian’s article indicates that the paper requested disclosure of the CPS’s records of the trial in circumstances where no transcript had been made of the hearing. It would appear that the request was refused by the CPS under s. 40 FOIA (the personal data exemption) and, in particular, on the basis that a large proportion of the requested information was ‘sensitive personal data’ as it related to the commission of an offence and Mr Griffin’s political opinions (see section 2 of the Data Protection Act 1998). It would appear that the Guardian will now lodge a complaint with the Information Commissioner. For an example of how the Information Tribunal applied s. 40 FOIA to a request for disclosure of personal data about individuals who had been made subject to ASBOs see further Camden v IC EA/2007/21

 

CONFIDENTIAL INFORMATION IN THE TRIBUNAL

January 22nd, 2010 by Timothy Pitt-Payne QC

The Tribunal has issued a Practice Note dated 18th January 2010, dealing with the protection of confidential information under the new rules of procedure.

The Note needs to be read in conjunction with the new rules of procedure (discussed in our earlier post here).  The relevant rules are set out in the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009 (SI 2009/1976) as modified by the Tribunal Procedure (Amendment) Rules 2010 (SI 2010/43)

The Practice Note indicates that the Tribunal will maintain its previous practice, that disputed information (i.e. the information sought by a requester but withheld by a public authority) will not usually be disclosed to the requester in the course of appeal proceedings before the Tribunal. This may mean that a party is excluded from part of the Tribunal hearing.  The Practice Note refers to rule 35 of the new Rules as providing a basis for exclusion.

The Practice Note also includes guidance about the format of witness statements (see paragraph 22) and the contents of bundles (see paragraph 25).

 

 

HOW BUSY IS THE TRIBUNAL?

January 22nd, 2010 by Timothy Pitt-Payne QC

The First-tier Tribunal (Information Rights) – as we must now learn to call it – has recently published on its website a list of its current cases (updated to 20th January 2010).  This gives an interesting insight into the volume and type of work reaching the Tribunal.

Cases are numbered by year of receipt, and in the order that they are received: for instance,  EA/2009/100 is the 100th case received in 2009.  This means that the case numbering system indicates how many appeals were received in a particular calendar year.  On this basis, the Tribunal seems to have received 123 cases in 2009, and 30 (so far) in 2010;  which suggests a sudden sharp increase in its workload.

The list shows 102 live cases.  Of these, only one is identified as a Data Protection Act case.  11 cases are identified as involving the Environmental Information Regulations.  All of the other appeals (90 cases) are brought solely under the Freedom of Information Act.

As the figures suggest, free-standing DPA cases before the Tribunal are rare.  There are also few DPA cases that reach the ordinary courts.  But many FOIA cases involve DPA issues.  So a significant volume of DPA case-law is being generated by the Tribunal; but most of this is in the context of FOIA, and in particular the data protection exemption in FOIA section 40. 

 

 

EMPLOYMENT VETTING IN THE COURT OF APPEAL

January 21st, 2010 by Timothy Pitt-Payne QC

Employment vetting is of great interest to information lawyers.  Any vetting scheme depends on the systematic sharing of information about individuals.  Such schemes will always give rise to difficult questions about fairness.  An important recent decision of the Court of Appeal explores some of these issues, in the context of article 6 of the European Convention on Human Rights (ECHR).

Governors of X School v Queen on the application of G [2010] EWCA 1 concerned a teaching assistant at X school (“the employee”), who was accused of having sexual contact with a 15 year old boy on work experience at the school.  The school governors conducted a disciplinary hearing, and dismissed the employee.  The employee brought judicial review proceedings to challenge the governors’ decisions not to allow him legal representation at the disciplinary hearing or at a forthcoming appeal hearing.  He argued that these decisions violated his right to a fair hearing, under article 6 of the European Convention on Human Rights (ECHR).  The employee’s claim succeeded at first instance.  The Court of Appeal upheld that decision, rejecting the governors’ appeal.

The basis of the employee’s claim was that an adverse finding in the disciplinary proceedings would expose him to statutory procedures that would prevent him from working with children.  The Court of Appeal summarised the relevant procedures, by reference to three phases in the employment vetting regime:  (i) the “list 99” procedure, under section 142 of the Education Act 2002, prohibiting certain individuals from working in education; (ii) the transitional regime, under the Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”), whereby after 20th January 2009 certain cases under section 142 were referred to the new Independent Safeguarding Authority (ISA); and (iii) the substantive regime under the 2006 Act, whereby list 99 was replaced with effect from 12th October 2009 by the “children’s barred list”, established under section 2(1)(a) of the 2006 Act.

The Court of Appeal considered whether the school disciplinary proceedings were a determinant of the employee’s civil right to practise his profession as a teaching assistant, so as to engage article 6 of the ECHR.  Dismissal by the governors would not itself preclude the employee from practising his profession.  A decision to include the employee on a statutory barring list would, however, have that effect.  The question was whether the disciplinary proceedings had a substantial influence or effect on the barring proceedings, and therefore on the determination of the employee’s civil right to practise his profession. The answer was yes: therefore, the disciplinary proceedings engaged article 6.

The Court went on to consider whether article 6 required that the employee should be entitled to legal representation in the disciplinary proceedings.  Article 6 did not entail a right to legal representation in every case:  but in this case there was such a right, given the seriousness of what was at stake for the employee, and given the potential for legal representation to make a difference to the outcome.

The above analysis assumed that the case was to be treated as civil rather than criminal for the purposes of article 6.  The employee argued that the case ought to be treated as criminal:  given its other conclusions, the Court of Appeal did not need to decide this point.

The governors were a public authority under the Human Rights Act 1998, and therefore subject to the duty under section 6(1) of that Act, not to act incompatibly with Convention rights.  The implications of the Court of Appeal’s decisions for private sector employers are uncertain.  Such employers are not subject to the section 6(1) duty, and are not susceptible to judicial review.  But in an unfair dismissal claim against a private sector employer, the employee might well rely on Governors of X School in order to argue that a failure to permit legal representation would render any dismissal unfair.

The case is of very considerable importance.  It illustrates the wide consequences of the vetting scheme introduced by the 2006 Act.  The scheme will give rise to a host of difficult legal issues:  the Courts are only just beginning to explore them.

 

EMPLOYMENT BLACKLISTING – AN UPDATE

January 19th, 2010 by Timothy Pitt-Payne QC

We have previously blogged about this subject at some length:  see in particular this post in November last year.

A draft statutory instrument, under section 3 of the Employment Relations Act 1999, is now available here on the OPSI website.  The draft regulations are intended outlaw the compilation, dissemination and use of blacklists of trade unionists in the employment context.