On 17 November 2009, the Supreme Court will hear the Information Commissioner’s appeal against the Court of Appeal’s judgment in Office of Communications v Information Commissioner [2009] EWCA Civ 90 (Ofcom). In Ofcom, the Court of Appeal held that, when multiple exceptions were engaged in respect of particular information, the public interest test provided for under regulation 12(1)(b) of the Environmental Information Regulations 2004 would operate so as to entitle the public authority to aggregate all the different public interest factors relating to all applicable exceptions in a single, compendious public interest balancing exercise. This judgment was controversial, not least because it represented a departure from the well-established approach of tailoring public interest considerations to the individual exception in issue. Notably, in a recent Information Tribunal decision, the Tribunal highlighted some of the practical difficulties posed by the adoption of the aggregate approach to the public interest test (South Gloucestershire v Information Commissioner (EA/2009/0032), §§48-52). 11KBW’s Clive Lewis and Akhlaq Choudhury will be appearing on behalf of the Commissioner in the Supreme Court.
Month: November 2009
ACCESSING LOCAL AUTHORITY INFORMATION UNDER THE AUDIT COMMISSION ACT 1998
It is often thought by members of the public that the only way to access information relating to how local authorities are spending public monies is through the application of the Freedom of Information Act 2000. However, a recent judgment of the High Court has highlighted that such information may also be accessed in certain circumstances under another much less well known enactment, namely the Audit Commission Act 1998 (ACA). In summary, section 15 ACA permits ‘any person interested’ (e.g. local council tax payers) to inspect a local authority’s accounts and documents ‘relating to’ those accounts at the time of the authority’s annual audit.
In Veolia ES Nottinghamshire Ltd v Nottinghamshire CC & Ors [2009] EWHC 2382 (Admin), an inspection request was submitted to the Nottinghamshire CC by an interested person. The documents falling within the ambit of the request included a particular waste management contract which Veolia had entered into with the Council, along with invoices which Veolia had supplied to the Council under the contract. The Council decided that it was obliged to permit inspection of these documents under s. 15 ACA. Veolia challenged that decision by way of judicial review. Evidently, in mounting that challenge, Veolia was concerned that the information contained in the documents was commercially sensitive and should not therefore be permitted to enter the public domain under s. 15. Veolia’s case before the High Court was advanced principally on the basis that inspection should not be permitted under s. 15 as the contract and the invoices did not ‘relate to’ the local authority’s accounts. This argument was firmly rejected by Cranston J. He held that the words ‘relating to’ were sufficiently flexible that they could accommodate the documents in issue.
In reaching this conclusion, Cranson J evidently had in mind that the function of s. 15 is to enable interested persons to inspect documents which reveal precisely how the local authority is spending public monies. He concluded, in effect, that such a function would be frustrated if such persons could not consider the various contracts and invoices under which the local authority made payments to third parties.
It is apparent from the judgment in Veolia, that considerations relating to commercial sensitivity and confidentiality will not be relevant to the decision as to whether documents may be inspected under s. 15. This very generous approach to accessing commercial information under the ACA is to be contrasted with the more restrictive approach adopted under FOIA and the Environmental Information Regulations 2004 (see further the specific exemptions afforded under those enactments in respect of confidential and commercial information; and see also South Gloucestershire Council v Information Commissioner (EA/2009/0032) for a recent example of how these exemptions apply in practice – see further the post on this case). Veolia’s application for permission to appeal against Cranston J’s judgment is currently being considered by the Court of Appeal.
11KBW’s Michael Supperstone QC, Tim Pitt-Payne and Peter Oldham all appeared in the case.
Abortion statistics: identification of patients and doctors held to be unlikely
In 2003, the Department of Health significantly reduced the detail of publicly available statistics on abortion operations: for example, no information was any longer to be released about post-24-week abortions carried out on the grounds of foetal medical defects. The Department relied principally on s. 40 FOIA in refusing the Prolife Alliance’s request for more detailed data. The Information Tribunal has, however, ordered the statistics to be disclosed: see Department of Health v IC (Additional Party: the Pro Life Alliance) (EA/2008/0074). The Tribunal agreed with the Department that the requested abortion statistics, although entirely anonymised, did constitute personal data because they were not anonymous in the hands of the data controller. The Department’s principal concern, namely the inferential identification of doctors or patients, was not, however considered ‘likely’ in the circumstances. This factual finding meant that, in the Tribunal’s view, the release of the requested personal data was fair and lawful and that (under paragraph 6(1) of Schedule 2 to the DPA) the potential prejudice to patients and doctors was outweighed by legitimate third party interests in (inter alia) monitoring compliance with abortion law, identifying abortion trends, informing public debate and encouraging accountability of medical practitioners. The decision is of note for its detailed analysis of the ways in which individuals might be identified from statistical data, and for the Tribunal’s reliance on the Corporate Officer of the House of Commons litigation (in its various stages) for guidance on the balancing test under paragraph 6(1) of Schedule 2 to the DPA.