December 21st, 2010 by Anya Proops QC
A question which is frequently posed under both FOIA and the EIR is whether and to what extent confidential, commercial information can lawfully be withheld by a public authority. The recent decision of the First Tier Tribunal in the case of Staffordshire County Council v IC & Silbelco  UKFTT 573 (GRC), (EA/2010/0015) embodies a number of important principles which should be considered whenever this question is being posed.
In Staffordshire, a request had been made for disclosure of particular commercial information consisting of the sales figures and reserve figures which a particular quarry operator (Sibelco) had generated in respect of the minerals which it quarried. The information had been provided by Sibelco to the local authority under a voluntary scheme. The scheme had been set up with a view to assisting the authority in discharging its statutory obligations as a mineral planning authority. Sibelco had provided the information to the authority on the express basis that it was to be treated in strictest confidence. Following a request for disclosure of the information, the authority refused to disclose the information on the basis that it was exempt under s. 41 FOIA (the confidential information exemption). During the complaints process before the Commissioner, the authority accepted that, in view of the environmental nature of the information, the applicable access regime was the EIR, rather than FOIA. However, it went on to argue that the information was still exempt under r. 12(5)(e) (commercial/confidential information exception) or 12(5)(f) (exception in respect of information provided in confidence) EIR. The Commissioner accepted that both exceptions were engaged in respect of the disputed information. However, he concluded that, on an application of the public interest test, the public interest weighed in favour of the information being disclosed. The authority appealed the Commissioner’s decision to the First Tier Tribunal. The Tribunal held that the Commissioner had erred as the public interest balance provided for under r. 12(1)(b) EIR weighed in favour of the information being withheld.
Importantly, in analysing the application of the public interest test the Tribunal took into account the recent Court of Appeal judgment in Veolia v Nottinghamshire CC  EWCA 1214. In that case, which was concerned with the access to confidential, commercial information under s. 15 of the Audit Commission Act 1998, Rix LJ concluded that: (a) he could see no reason why ‘valuable commercial confidential information’ could not amount to a ‘possession’ for the purposes of Article 1 of Protocol 1 of the European Convention of Human Rights (A1/P1) (b) in the circumstances, unrestricted disclosure of such information would amount to an interference with the A1/P1 right to possession enjoyed by the person whose information it was; and (c) such interference would have to be justified if it were not to be unlawful under the ECHR (see §§120-122). In Staffordshire, the Tribunal relied upon Rix LJ’s reasoning to arrive at the following conclusions on the application of the EIR (and FOIA) to confidential, commercial information (§151):
- ‘The disclosure of confidential information by a public body such as the Appellant engages the ECHR rights of the holder of the confidence;
- A statutory right for the public to have access to any information must have an exception read into it to exempt the disclosure of confidential information in order to give effect to those ECHR rights;
- The presumption in favour of disclosure of all environmental information held by public bodies in Regulation 12(2) EIR 2004 must now be read subject to an exception in the case of any such information which is held by the public body subject to a legal duty of confidentiality;
- Where environmental information is held by a public body which is subject to a legal duty of confidentiality there is recognised to be a “strong public interest” in the maintenance of valuable commercial confidential information;
- Arguments can be advanced on the individual circumstances of the case to seek to justify overriding the duty of confidence for particular pieces of information.’
The Tribunal was of the view that the facts of the case were such that there was no justification for overriding the duty of confidence owed to Sibelco in respect of the disputed information.
In light of the Tribunal’s analysis of the implications of Veolia, it is to be expected that human rights arguments will now commonly feature in any appeal involving an application of the EIR or FOIA to confidential, commercial information.
December 16th, 2010 by James Goudie QC
MGN publishes the Daily Mirror and other newspapers. Mr Grisbrook is a freelance photographer. Between 1981 and 1997 he supplied MGN with a large number of photographs for publication by MGN in their daily newspapers and storage by them. He retained the copyright. He was paid for each publication. In 1997 he terminated MGN’s licence to use the photographs. MGN later created three websites that allowed the public to view and buy part or whole of back copies of their newspapers. Some of these include Mr Grisbrook’s photographs. He claimed that this infringed his copyright. In MGN v Grisbrook  EWCA Civ 1399 the Court of Appeal agreed. The dispute related to the commercial exploitation of the MGN database by means of the three websites. It was not suggested that such exploitation was within the contemplation of the parties at the various times between 1981 and 1997 when the relevant photographs were submitted by Mr Grisbrook to MGN. Nor was it suggested that any second publication of one of Mr Grisbrook’s photographs would not generate a liability to Mr Grisbrook for a further fee. What was suggested was that the website is an alternative means of delivery of the original newspaper: because there was no limit on the numbers which might have been published originally the operation of the website should be regarded as only further delivery of the original, licensed, paper. The Court of Appeal agreed that the operation of the website could be regarded as further delivery of the original, but not that it could only be so regarded. A website operates over a global area, its coverage is greatly in excess of anything MGN could have reached with hard copy newspapers. It enables a member of the public to read it before deciding whether he wants a hard copy and the production of hard copies by the public far in excess of anything MGN could have produced. The extent of the market and the costs incurred in reaching it are quite different to those of the hard copy newspapers of the past. The suggestion that an intention might be imputed to Mr Grisbrook and MGN from their conduct in relation to Mr Grisbrook’s photographs in the period 1981 to 1997 that MGN should be entitled without further charge to exploit the copyright of Mr Grisbrook in his photographs by inclusion on their websites was unacceptable. Newspapers are essentially ephemeral and, save for the enthusiastic collector, retain no long lasting status: the parties will have intended that they would be treated as daily papers are generally treated, that is to say, read and replaced with the following day’s edition. To incorporate the pictures into the website was to provide a permanent and marketable record easily available world-wide which could well reduce the value of the further use by Mr Grisbrook of the photographs over which it was common ground he possessed the copyright. This is why this was not just a question of degree but of kind. Copyright in the compilation does not affect the rights of the owner of copyright in its parts unless he licenses its further publication. The existence of such overlapping copyrights demonstrates the need for the compiler to obtain sufficient licences from his contributors.
James Goudie QC
December 8th, 2010 by Rachel Kamm
The Information Commissioner has produced a Good Practice Note on the taking of photographs in schools. The ICO press notice gives a seasonal example: “Having a child perform at a school play or a festive concert is a very proud moment for parents and is understandably a memory that many want to capture on camera. It is disappointing to hear that the myth that such photos are forbidden by the Data Protection Act still prevails in some schools. A common sense approach is needed – clearly, photographs simply taken for a family album are exempt from data protection laws. Armed with our guidance, parents should feel free to snap away this Christmas and stand ready to challenge any schools or councils that say ‘Bah, Humbug’ to a bit of festive fun.” The guidance states that the Data Protection Act is unlikely to apply in most situations where photographs are taken by parents in schools, although it does apply when photographs of children are taken for official use by a school or college (such as for issuing identification passes). The ICO advises that in the other small number of instances where the Data Protection Act 1998 does apply, it will usually be sufficient for the photographer to obtain permission from the parent or individual to take a photograph. The guidance is available here: http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/taking_photos.pdf.
This post is also available on 11KBW’s education law blog: http://www.education11kbw.com/.
December 8th, 2010 by James Goudie QC
In Wild v IC and Chief Constable of Hampshire Constabulary (EA/2010/0132) the Appellant was concerned as to whether the provisions of the Hunting Act 2004 were being complied with in the Isle of Wight and how these provisions were being enforced by the Hampshire Police. She requested from the Chief Constable dates of pre-hunt meetings in last 5 years and names of officers attending pre-hunt meetings with Isle of Wight Hunt, such meetings being meetings between the organisers of hunts and the police officers responsible for supervising hunts (“Hunt Liaison Officers”). The Police responded, providing dates, but refusing to disclose the names of the officers in attendance.
The IC considered the application of S40(2) of FOIA to the case. He concluded that the names of officers attending the meeting would be personal data and therefore in considering the potential disclosure it was necessary to consider whether it would be in accordance with the data protection principles embodied in the DPA. He concluded that the disclosure would result in a breach of the first such principle that data should be processed fairly and lawfully. He accepted that the disclosure may lead to the harassment of the officers identified and consequently the disclosure would be unfair to those officers.
The Tribunal rejected the appeal and upheld the IC’s decision. The IC had correctly struck the balance between the Appellant’s legitimate interest in disclosure and the prejudice to Hunt Liaison Officers disclosure of whose identity would put them at risk of harassment.
James Goudie QC
December 8th, 2010 by James Goudie QC
In Byrne v DPP (2010) 1 EHC 382 the Irish High Court held that it was not part of the function of the DPP to surf the internet in order to find and deal with any information on an accused facing a criminal trial. The material on the applicant did not suggest he was guilty of the crime with which he was charged and there was no risk of an unfair trial. His application that the DPP should seek out and have removed information on him published on the internet was refused.
The applicant is a former Securicor employee, facing charges in connection with the extortion of money from a Securicor employee through the kidnapping of his family in March 2005. In April 2009, a jury was empanelled to try the applicant along with others. There was a lot of media coverage of the crime and the subsequent trial. In May, the trial judge had his attention drawn to material on newspaper websites relating to the bail hearings concerning some of the accused men, and he ordered this material to be removed. However, the Judge said that it was not the duty of the DPP to sweep the internet and engage in correspondence with local and foreign internet service providers with a view to cleansing cyberspace of any potential reference to an accused person. Judges should warn jurors that they should not surf the internet in relation to any participant in a case.
James Goudie QC
December 6th, 2010 by James Goudie QC
The Data Retention Directive (Directive 2006/24/EC) requires public electronic communications providers (telephone companies, mobile telecoms, Internet service providers) to retain traffic, location and subscriber data for the purpose of the investigation, detection and prosecution of serious crime. The Directive has been undergoing an evaluation process that seeks to assess its application by Member States, and its impact on businesses and consumers. The aim is also to establish whether the Directive is proportionate in relation to the law enforcement benefits it yields, the costs for the market, and the impact on fundamental rights, in particular the rights to privacy and the protection of personal data.
The Commission held a Conference on the Directive in Brussels on 3 December 2010. Cecilia Malmström, the Member of the Commission responsible for Home Affairs, made four points: (1) the retention of data is useful for fighting crime; (2) the Directive is implemented in different ways in the Member States, especially as regards retention periods; (3) clearer rules are needed, including in relation to compensation for costs; and (4) there is no evidence of serious abuse.
At the Conference Peter Hustinx, the European Data Protection Supervisor (EDPS), strongly argued in favour of seizing the opportunity of the ongoing evaluation process to demonstrate the necessity and justification for the Directive. The EDPS emphasised once again that the retention of traffic and location data of all persons in the EU, whenever they use the telephone or the Internet, is a huge interference with the right to privacy of all citizens. As such, the EDPS regards the Directive as the most privacy invasive instrument ever adopted by the EU in terms of scale and the number of people it affects. Such a massive invasion of privacy needs profound justification. The EDPS therefore called on the Commission to use the evaluation exercise to prove the necessity for the Directive and its proportionality. The EDPS further insisted on the fact that the Directive clearly failed to harmonise national legislation. Significant discrepancies between the implementing laws of the EU Member States have led to legal uncertainty for citizens. It has also resulted in a situation where the use of the retained data is not strictly limited to the combat of really serious crimes. According to the EDPS, a new or modified EU instrument on data retention should be clear about its scope and create legal certainty for citizens. This means that it should also regulate the possibilities for access and further use by law enforcement authorities and leave no room for the Member States to use the data for additional purposes.
James Goudie QC