October 29th, 2010 by James Goudie QC

Legal professional privilege (“LPP”) as an exemption from disclosure under Section 42 of the Freedom of Information Act 2000 (“FoIA”) and Regulation 12 of the Environmental Information Regulations 2004 arose again in West v Information Commissioner, EA/2010/0120.  Bexley Council had transferred a major part of its Council housing stock to a Housing Association.  Mr West is a member of a leaseholders’ group that objected to having to pay service charges for the cost of the maintenance of roads and footpaths within the housing estates.  They said that remained the responsibility of the Council.  They sought to challenge the lawfulness of the stock transfer agreement.  The Council took advice from Counsel.  Mr West sought a copy of Counsel’s Opinion.  The Council refused to provide it, relying on LPP.  The Information Commissioner upheld the Council’s refusal.  The Tribunal dismissed Mr West’s appeal.  Not only might “legal advice privilege” apply.  So too might “litigation privilege”.  Mr West had threatened to bring a case before the Leasehold Valuation Tribunal and/or judicial review proceedings.  The real issue was the Public Interest Test.  The Tribunal duly identified the public interest factors in maintaining the exception, referring to DBERR v O’Brien [2009] EWHC 164, and the public interest factors in disclosure.  Weighing up and balancing the competing public interests, and bearing in mind the presumption in favour of disclosure, the Tribunal (Judge Shanks presiding) agreed with the Commissioner that the public interest in maintaining the LLP exception outweighed the public interest in disclosure.

James Goudie QC



October 11th, 2010 by Rachel Kamm

The Information Commissioner is currently consulting on a draft Data Sharing Code of Practice. Subject to consultation and obtaining the Secretary of State’s approval, this will be a statutory code of practice issued under sections 52A and 52D of the Data Protection Act 1998 which can be used as evidence in any legal proceedings. The draft code is relatively short  (less than 40 pages) and does not include as much practical detail as perhaps might have been expected. It is available on the Information Commissioner’s website (ww.ico.gov.uk)  and the consultation period closes on 5 January 2011.  



October 6th, 2010 by Robin Hopkins

Bath & North East Somerset Council v IC (EA/2010/0045) is the latest application of the ‘commercial confidentiality’ exemption under regulation 12(5)(e) EIR to a request for information on agreements between a local authority and a property developer.


The council and the developer entered into discussions about building homes on 70 acres of brownfield land within a UNESCO World Heritage Site. Only a small proportion of this land was owned by the council, the rest being owned by the developer, who would also bear 100% of the risk of the project. The proposed £500m project would deliver 50% of the council’s new homes target for the next 10 years – the council was therefore acting as both beneficiary and planning authority.


With a potential section 106 agreement in mind, the council and developer reached a co-operation agreement, whereby the developer taking an ‘open book’ approach, i.e. making its financial models and reports available to the council. This was the information at issue before the Tribunal.


The Tribunal found that the public interest favoured maintaining the exemption. In so doing, it distinguished this case from Bristol City Council v ICO and Portland and Brunswick Squares Association (EA/2010/0012) – on which, see my post here and article in the Local Government Lawyer here – where disclosure of the information was ordered. Bristol City concerned a viability assessment designed to show that a hypothetical scheme was not viable; that assessment used generic, industry-level pricing. In contrast, this case concerned detailed and developer-specific financial information about an actual proposal. The commercial sensitivities differed materially.


Disclosure of such information, held the Tribunal, would lead to the developer refusing to provide any further ‘open book’ information, which would stymie this particular development and dissuade developers from future ‘open book’ co-operation. The Tribunal was also impressed by the availability of alternative scrutiny mechanisms in this case. It was less impressed with the council’s argument that disclosure of the disputed information would damage its reputation with developers.


The Tribunal did order the disclosure of consultants’ reports and emails, with commercially sensitive information redacted. The developer’s financial model however, could not be redacted, and could be withheld. On this last point, a notable practical issue emerged: both the council and the Commissioner had interpreted the request as being for a static version of the developer’s financial model. A ‘live’ model – i.e. a spreadsheet containing visible formulae – is another matter. The Tribunal warned that in future cases, clarification should be sought from the requester.


Digital Agenda: EU Commission refers UK to ECJ over privacy and personal data protection

October 4th, 2010 by James Goudie QC

October 4th 2010 by James Goudie QC

The European Commission has decided (IP/10/1215) to refer the United Kingdom to the ECJ for not fully implementing EU rules on the confidentiality of electronic communications such as e-mail or internet browsing. Specifically, the Commission considers that UK law does not comply with EU rules on consent to interception and on enforcement by supervisory authorities. The EU rules in question are laid down in the ePrivacy Directive 2002/58/EC and the Data Protection Directive 95/46/EC. The infringement procedure was opened in April 2009 (IP/09/570), following complaints from UK internet users notably with regard to targeted advertising based on analysis of users’ internet traffic. These complaints were handled by the Information Commissioner’s Office, the UK personal data protection authority, and the police forces responsible for investigating cases of unlawful interception of communications. The Commission previously requested the UK authorities in October 2009 (IP/09/1626) to amend their rules to comply with EU law.

The Commission considers that existing UK law governing the confidentiality of electronic communications is in breach of the UK’s obligations both under the ePrivacy Directive and under the Data Protection Directive in three specific areas:

  •  there is no independent national authority to supervise the interception of some communications, although the establishment of such authority is required under the ePrivacy and Data Protection Directives, in particular to hear complaints regarding interception of communications
  • current UK law authorises interception of communications not only where the persons concerned have consented to interception but also when the person intercepting the communications has ‘reasonable grounds for believing’ that consent to do so has been given. These UK provisions do not comply with EU rules defining consent as “freely given, specific and informed indication of a person’s wishes”
  • current UK law prohibiting and providing sanctions in case of unlawful interception are limited to ‘intentional’ interception only, whereas EU law requires Member States to prohibit and to ensure sanctions against any unlawful interception regardless of whether committed intentionally or not.



October 1st, 2010 by Robin Hopkins

A number of Tribunal decisions have dealt with requests for minutes of cabinet meetings. Section 35 is inevitably relied upon, and arguments about both collective responsibility and confidentiality ensue.


The most famous concerned the decision to go to war in Iraq, which case saw disclosure being ordered by the Tribunal, but vetoed by Jack Straw.


More recently (Cabinet Office v ICO (EA/2010/ 0031)), the Tribunal has ordered disclosure of the cabinet’s meeting on 9th January 1986, in which Michael Heseltine resigned over the Westland Helicopter decision.


The Tribunal agreed that cabinet minutes are of the highest sensitivity, and should only be disclosed in rare cases “where it involves no apparent threat to the cohesive working of Cabinet government, whether now or in the future”. Relevant factors include: the passage of time, the departure of the relevant ministers from active politics, publication of memoirs and ministerial statements describing the meeting, the issue lacking ongoing significance, the ‘objectivity value’ where publicised accounts conflict, and whether the issue is of “particular political or historical significance”.


The last-mentioned factor was one Jack Straw expressly disagreed with when issuing the certificate of veto mentioned above: in other words, his position was that the more momentous a decision, the greater the need for confidentiality.


Many of these factors were, however, at work in the present case: for example, Margaret Thatcher and Michael Heseltine both made (acrimonious) public statements about the meeting at the time, and the meeting has since surfaced in plenty of memoirs. The outcome was that, whilst section 35 was engaged, the public interest favoured disclosure.


No sign of the incumbent Lord Chancellor, Ken Clarke – who, incidentally, was in the cabinet and present for the 1986 Westland Helicopter meeting – reaching for the veto just yet.


The Tribunal concluded its judgment with stringent criticism of the Cabinet Office’s delay in dealing with this request. The Cabinet Office is one of the 33 authorities on the ICO’s first monitoring list – on which, see my post below.



October 1st, 2010 by Robin Hopkins

The Information Commissioner’s Enforcement Team has begun cracking down on public authorities that habitually fail to respond to requests for information within the statutory limits. This morning, it began publishing a list – to be updated quarterly – of authorities whose timeliness will now be subject to specific monitoring by the ICO.


 Those on the list have either (i) been the subject of six or more complaints of delay in the last six months, (ii) exceeded the time limit by a significant margin on at least one occasion, or (iii) appear to respond in time to fewer than 85% of requests.


There are 33 authorities on the first monitoring list.


For the ICO’s statement, click here. For the debut monitoring list, click here.