The Royal Family has been the subject of a good deal of information rights litigation. The most famous is of course the Evans saga, about the ‘advocacy correspondence’ of Prince Charles. There have also been cases about (to name just a few subjects) the cost of police protection for the Royal Family, whether or not the Duchy of Lancaster is a public authority, royal wills and alleged heirs to the throne, as well as – most recently – whether the Duke or Duchy of Cornwall is a public authority for the purposes of the Environmental Information Regulations (EIRs). The most recent judgment focuses on Her Majesty the Queen herself, and reveals the views of Charles (J). Read more »
The Duchy of Cornwall was established by Edward III in 1337 for his son. There is a landed estate (the Duchy) and a title (the Duke). Edward III was no doubt unconcerned about any legal duties that may attach to the Duchy; he had bigger fish to fry. In the 21st century, however, at least one knotty question of legal duty has surfaced. Read more »
So here’s the news you’ve all been waiting for: Elizabeth Denham, former Information and Privacy Commissioner, British Columbia, Canada is to be appointed as the new Information Commissioner, following the conclusion of Christopher Graham’s tenure this summer – see further the ICO announcement here. Ms Denham will be faced with some very substantial challenges in her new role, including dealing with the transition to the brave new world engendered by the General Data Protection Regulation. Panopticon wishes Ms Denham very well in her new post. It also wishes to thank Christopher Graham both for his invaluable contribution both to the development of the law relating to information rights and to the operational efficiency of the ICO. We wish him very well for the future.
Anya Proops QC
Can the name of a local councillor who has defaulted on Council tax properly be withheld from disclosure under the exemption for personal data in s.40 FOIA? That was the issue for the Upper Tribunal (“UT”) in Haslam v (1) Information Commissioner (2) Bolton Council  UKUT 0139 (AAC), 10 March 2016. Mr Haslam, a journalist on the Bolton News, had submitted a FOIA request to Bolton Council for disclosure of names of councillors who had received reminders for non-payment of Council tax since May 2011. The Council refused to name names, citing the exemption in s.40 FOIA. The Information Commissioner and First-Tier Tribunal (“FTT”) upheld the Council’s decision. The UT (Judge Markus QC) has now reversed the FTT’s decision, and held that the name of the individual councillor concerned should be released.
The UT held that releasing the name would not contravene the data protection principles, because processing was necessary for the purposes of legitimate interests pursued by Mr Haslam, and was not unwarranted because of prejudice to the councillor’s rights/legitimate interests. In substance, this involved carrying out an Article 8/Article 10 ECHR balancing exercise. It is apparent from the UT’s decision that the critical element in that balancing exercise was the councillor’s status as an elected official with public responsibilities, to which non-payment of council tax was directly and significantly relevant. In particular, a councillor is barred from voting on the Council’s budget if he has an outstanding council tax debt of over two months. So Council tax default, per the UT, “strikes at the heart of the performance of a councillor’s functions”. Voters would want to know whether the councillor was carrying out his duties. That in turn meant that (i) a councillor could not have any expectation that his name would be withheld, even if his identification intruded significantly into his private life; and (ii) on the other side of the balance, there was a compelling legitimate interest in the public knowing his name. Judge Markus QC said that there might be exceptional cases in which the personal circumstances of a councillor were “so compelling” that their name should be protected; but these were not such circumstances – even though disclosure might cause some distress to the councillor, and damage to his reputation. In short, elected officials are not in the same position as other members of the public when it comes to disclosure of their names. They can expect their names to be disclosed in circumstances where ordinary members of the public might expect the opposite.
Two other points of interest arise from the decision:
- The UT said that the relevant “legitimate interests” of the third party to whom data is disclosed were the interests of the requester, not the public at large. The fact that FOIA, in general, is “motive-blind”, and disclosure under FOIA is to the world, did not mean that the “third party” in question had to be treated as if it were the public as a whole, rather than the requester. However, in the present case, that made no practical difference, because Mr Haslam was a journalist, and his own interests elided with those of the public.
- The issue arose whether Mr Haslam should receive a gist of the closed material in the case. The closed material concerned the personal mitigating circumstances of the councillor in question. The UT applied the principle in Browning v Information Commissioner  1 WLR 3848 that information should not be withheld unless strictly necessary; but considered that nevertheless, it was not possible to provide a gist. Giving a gist would materially increase the risk of the councillor being identified, and that would defeat the purpose of the appeal.
Anya Proops QC of 11KBW acted pro bono for Mr Haslam; Robin Hopkins of 11KBW for the Information Commissioner, and Christopher Knight of 11KBW for the Council.
Following the launch of its media law practice in February 2016, 11KBW is pleased to announce that it will be sponsoring this year’s annual IBC conference on Defamation, Privacy and Reputation Management. The conference will take place in London on 14 June and speakers will include, amongst others, 11KBW’s Tim Pitt-Payne QC, Anya Proops QC and Christopher Knight. For any practitioner working on the interface between information rights and media law, this is an opportunity not to be missed. For further details see here.
We are delighted to offer a 30% discount off the delegate rate as sponsors of the conference – please use VIP code: FKW8263811KBW – click here
The Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2016, S.I. 2016/139, extends, in Scotland, the coverage of freedom of information legislation. It does so in two ways. First, it designates certain bodies as public authorities for this purpose. These are (i) grant-aided schools, (ii) independent special schools, (iii) providers of secure accommodation, and (iv) Scottish Health Innovations Ltd, an organisation that exists to facilitate the commercialisation of intellectual property arising from the staff of NHS Scotland. Second, the Order designates persons who provide, under a contract with Scottish Ministers, services relating to the provision and running of prisons.