A BAD THING?

March 24th, 2011 by Timothy Pitt-Payne QC

The website of the Information Tribunal (or FTT Information Rights, to be precise) is an invaluable source of information.  The lists of current cases make it possible to track the progress of potential test cases, and also give information about hearing dates and venues – essential for any members of the Press or public wishing to attend.  There is all sorts of useful information – e.g. about the Tribunal judiciary.  Perhaps most important of all, there is a searchable and complete collection of Tribunal decisions, together with other information law cases. 

Today the site displays an ominous notice.  As a result of the merger of the Court Service and the Tribunal Service, the site will be archived with effect from 1st April.  Information, forms, and details about services, will be available from www.justice.gov.uk and other sites.  But it is wholly unclear whether the same level of information will be made available as at present; in particular, it is not clear whether tribunal decisions will still be published online.  Although FTT and Upper Tribunal decisons are also available on Bailii, the Information Tribunal website is a much better tool for anyone specifically interested in Information Law.  Let’s hope that all that is happening is a change of web address rather than a change in format or content.           

 

 

KIRKLEES COUNCIL PROPERTY SEARCH CASE

March 24th, 2011 by Timothy Pitt-Payne QC

We have previously posted about the above decision:  see here.

The case is now available online here on the website of the Upper Tribunal (Administrative Appeals Chamber).

 

NO PREJUDICIAL INTEREST

March 23rd, 2011 by James Goudie QC

James Goudie QC, instructed by John Bridger of Preston Redman, appeared for Councillor John Beesley, the Deputy Leader of Bournemouth Borough Council, before the First-Tier Tribunal (Local Government Standards).  The Tribunal (Case No: LGS/2010/0533) found that Cllr Beesley had not breached the Code of Conduct.  He had declared personal interests.  They were not also prejudicial interests.  Tribunal Judge Chris Hughes OBE accepted the submission that:

             “The test to be applied under the Code of Conduct is in essence the same as the test for apparent bias.  The member of the public viewing these circumstances would demonstrate two key characteristics – adopting a balanced approach and while not being complacent would not be unduly sensitive or suspicious (Gillies v Secretary of State for Work and Pensions [2006] 1WLR 781).  The matter must be considered from the point of view of an observer who is both informed and fair minded.  The question to be addressed by the member of the public with these characteristics is whether there is a likelihood in other words a real possibility (Porter v Magill [2002] 2AC 357) of bias.”

 

PERSONAL DATA

March 23rd, 2011 by James Goudie QC

Two decisions on 21 March 2011 of differently constituted First-Tier Tribunals, Johnston v I Co and Brecon Beacons National Park Authority, EA/2010/0130/0131, and Gilbert v I Co and Local Government Ombudsman, EA/2010/0190, both considered the exemption from disclosure constituted by FoIA s40.  In each case the FTT found that individuals were the focus of the information requested and that it constituted personal data.  In each case the FTT considered whether disclosure would breach the first data protection principle under the DPA, in particular whether disclosure would be unfair, whether the disclosure was necessary to promote legitimate interests, and whether disclosure would cause unwarranted interference with the interests of the individuals whose data was in issue, especially in the case of a junior officer and where any legitimate aims of the requester could be achieved by a means that interfered less with the privacy of the individual officer, whilst retaining accountability.

James Goudie QC

 

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.

 

S. 35 FOIA AND THE DEVELOPMENT OF LEGISLATION – LATEST TRIBUNAL DECISION

March 23rd, 2011 by Robin Hopkins

The Tribunal’s recent decision in Makin v IC (EA/2010/0080 & 81) looks at the application of s. 35 FOIA, the qualified exemption for the formulation and development of government policy, in circumstances where the policy in question was effected through parliamentary legislation.  In particular, the requested information concerned the proposal in what was then the Legal Services Bill to continue the exemption of government lawyers from professional regulation, including the requirement to pay for a practising certificate.

The Tribunal considered the application of subsections 1(a), (2) and (4) of s. 35.

It had no hesitation in confirming that s. 35(1)(a) was engaged, relying on the well-established breadth of terms such as “relates to”. For the purposes of s. 35(2), the Tribunal found that no “statistical information” (a working definition of which was taken from the Ministry of Justice guidance of May 2008) was involved.

As regards s. 35(4) – the subsection concerning factual information used to inform decision-making – the Tribunal found that this subsection “should apply where it was relatively obvious that what was being provided was factual information for the purpose of informing the decision–taker on the background”. In adopting this approach, it applied the guidance from the leading case of DWP v Information Commission (EA/2006/0040), where the Tribunal held that, on the spectrum between pure advice and pure fact, “where the information is firstly, so inextricably connected to the deliberative material that it is difficult to distinguish and secondly, where the vast weight of material is non-factual information, we consider Parliament did not intend the sub-section to apply”.

An important point from this case is the Tribunal’s finding that whenever s. 35 is under consideration, public authorities and the IC must consider whether s. 35(4) applies and if so what affect it has on the public interest balancing test. This had not been done in this case.

As to the public interest, a crucial issue was (as is usual with s. 35 cases), when the policy formulation had come to an end. Answer in this case: the date of Royal Assent given to the bill embodying the policy, namely 30 March 2007. In this case, one of the internal reviews was only completed well after this date – but the Tribunal held that the latest relevant date for assessing the public interest was the date when the review ought to have been completed, in accordance with the Code of Practice. This was well before Royal Assent, meaning that the public interest factors applied as if the policy were still in the process of formulation.

In the event, apart from two pieces of information, the Tribunal found that the public interest favoured the maintenance of the exemption. In so doing, it “took the view that the efficacy of the Parliamentary legislative process took precedence in this context… Whilst s. 35 was not aimed directly at protecting the role of Parliament, insofar as Government policy in relation to legislation underpins this particular role of Parliament, they were intertwined”.

A final interesting point is that the Tribunal firmly endorsed the IC’s flexibility to decide that, although information should have been disclosed at the time, it nevertheless ought not to be disclosed due to fresh circumstances that have arisen since the decision of the public authority. In so doing, the Tribunal relied on obiter dicta from the High Court’s decision in Office of Government Commerce v Information Commissioner [2009] 3 W.L.R. 67 (at paragraph 98).