Month: July 2010

SECTION 36 REVISITED – DANGERS FOR THE PUBLIC AUTHORITY

Posted on | by Anya Proops KC

Section 36(2) FOIA provides for a number of qualified exemptions, all of which are essentially designed to ensure that disclosures under FOIA do not unduly prejudice the effective conduct of public affairs. The exemptions provided for under section 36(2) are somewhat unusual in that the question whether they are engaged turns upon whether a ‘qualified person’ has given a ‘reasonable opinion’ that disclosure of the particular information would or would be likely to prejudice or inhibit one of the particular matters provided for under s. 36(2) (e.g. it would inhibit the free and frank provision of advice or the free and frank exchange of views). In other words, it is the creation of the reasonable opinion which itself operates to engage the particular s. 36(2) exemption.

The application of s. 36(2) has caused some difficulties in practice. In particular, difficulties have arisen where the public authority has sought to rely on s. 36(2) in circumstances where the reasonable opinion was not in fact generated until sometime after the request was refused by the public authority. In the case of Roberts v IC (EA/2009/0035), the tribunal held that s. 36(2) will not be engaged in these circumstances. This is because, if the information was not in fact exempt at the time the refusal notice was sent out (i.e. because the relevant reasonable opinion was not in existence at that time), it cannot be rendered exempt ex post facto (i.e. as a result of a reasonable opinion having been created after the request has been responded to). See further my paper which examines the Roberts judgment which you can find here.

The restrictive approach to s. 36(2) adopted in Roberts has recently been approved in the case of Chief Constable of Surrey Police v IC (EA/2009/0081). Interestingly, the tribunal in this case went on to highlight the significant dangers for a public authority if it fails to keep a record of the opinion as and when it is reached. Following an earlier decision in University of Central Lancashire v IC (EA/2009/0034), the tribunal in the Chief Constable case effectively held that a public authority will struggle to rely on the exemptions afforded under s. 36(2): (a) if it does not keep a record of the opinion which has been reached and, further, (b) if, in the context of any record which it has made, it fails to identify the particular sub-sections of s. 36(2) which the qualified person has concluded are engaged. Notably, in reaching this conclusion, the tribunal confirmed that it was not the function of the Commissioner to speculate about or forage around for opinions which might have been reached by the qualified person where there was no good evidence that such opinions had in fact been formed at the time the request was being responded to (see in particular paragraphs 54-59 of the decision). 11KBW’s Akhlaq Choudhury appeared on behalf of the Chief Constable.

APPLICATION OF NATIONAL SECURITY EXEMPTION TO AIRPORT SECURITY INFORMATION

Posted on | by Anya Proops KC

As might be expected, FOIA contains a specific exemption designed to safeguard national security, see the exemption provided for under s. 24. In essence, the s. 24 exemption is engaged if the exemption ‘is required for the purposes of safeguarding national security’. Perhaps somewhat surprisingly, the section 24 exemption is a qualified exemption (see s. 2(3) FOIA). This means that, even if the exemption is required in respect of particular information to safeguard national security, the information may still be disclosable on an application of the public interest test provided for under s. 2 FOIA. In Kalman v IC & Department for Transport (EA/2009/0111), the Tribunal was for the first time called upon to consider the substantive application of s. 24 (i.e. how it applied to specific information – cf. Baker v IC & Ors EA/2006/0045, where the tribunal considered the application of the national security exemption in the context of the duty to confirm or deny whether the information was held). The Kalman case involved an application for disclosure of information relating to airport security arrangements. The DfT refused to disclose the information on the basis that there was a real risk that the information, if disclosed, would be exploited by terrorist organisations. The Commissioner largely rejected Mr Kalman’s complaint against the DfT’s decision. Mr Kalman appealed to the Tribunal. There were two issues at stake in the appeal. First, whether s. 24 was engaged in respect of the disputed information and, second, if it was engaged, whether the public interest balance nonetheless weighed in favour of disclosure.

During the course of the hearing, the DfT conceded that some of the disputed information could be disclosed, not least because it was already effectively the stuff of public knowledge. The Tribunal went on to hold that there was other information which ought to have been disclosed for much the same reason. With respect to the remainder of the information, the tribunal accepted that s. 24 was engaged and that the public interest weighed in favour of maintaining the exemption. Notably, the tribunal held that the nature of the risk posed by the disclosure was so serious in this case (i.e. potential significant loss of life due to terrorists exploiting weaknesses in the airport security system) that, even if the risk was relatively slight, there would have to be an extremely strong public interest in disclosure to avoid the information being lawfully withheld. In reaching this conclusion, the tribunal adopted a similar analysis to the one which it had previously adopted in PETA v IC & Oxford University (EA/2009/0076) (case involving the application of the health and safety exemption in a case involving risk of attack by animal extremists).

DATA PROTECTION IN EUROPE – JUDGMENT IN BAVARIAN BEER

Posted on | by Anya Proops KC

On 29 June 2010, the European Court of Justice handed down an important judgment on how provisions within EU law which permit access to documents held by EU institutions are to be applied where the documents contain third party personal data – European Commission & United Kingdom v Bavarian Lager (Case C-28/08 P). The case involved an application for disclosure of a document held by the European Commission which recorded discussions on the application of certain beer import restrictions within the UK. A number of individuals were identified by name in the document. The application for disclosure was made by Bavarian Lager under EU Regulation 1049/2001 (the Access Regulation). The Access Regulation is designed to facilitate public access to documents held by EU institutions with a view to increasing their transparency and accountability. Importantly, like FOIA, the Access Regulation is, on its face, motive-blind (i.e. it does not require the applicant to establish a legitimate reason for accessing the information). The Commission provided the requested document, save that it redacted the names of certain individuals identified in the document. The key issue which arose in the case was whether, in deciding whether to release the names of the individuals in question, the Commission had been entitled to take into account whether Bavarian Lager had established that it had legitimate interests in receiving this particular data.

The Court of First Instance (now ‘the General Court’) held that: (a) particularly having regard to the motive blind nature of the Access Regulation, the Commission had erred in taking into account Bavarian Lager’s interests in receiving the information and (b) the names should be disclosed. On appeal by the Commission, the ECJ overturned the CFI’s judgment. In summary, the ECJ reached the following conclusions on the appeal:

(1)   the CFI had erred because it had failed to have due regard to the way in which the Access Regulation effectively deferred to provisions contained in other EU legislation, particular Regulation 45/2001 which is specifically concerned with protecting individuals with regard to the processing of their personal data by EU institutions (“the DP Regulation”);

 

(2)   the DP Regulation itself required consideration of the question of whether the applicant had a legitimate interest in receiving the particular personal data;

 

(3)   accordingly, the Commission had not erred when it decided that Bavarian Lager had not established a legitimate interest in receiving the personal data contained in the documents;

 

(4)   the data had been lawfully withheld by the Commission.

11KBW’s Jason Coppel appeared on behalf of the United Kingdom.

PUBLIC SECTOR EARNINGS – MORE INFORMATION

Posted on | by Timothy Pitt-Payne QC

The Cabinet Office has now published details of quango employees earning more than £150,000.  The information has been added to the list-  published at the beginning of June – of the highest earning senior civil servants, and the consolidated list is available here.  According to the Cabinet Office website, information has been withheld for 24 individuals:  there is no explanation as to whether this was simply because the individuals objected, or for other reasons. 

Further information about special advisers was published on 10th June, including a list of those earning more than £58,200 a year (sadly,  Tamzin Lightwater does not appear).