The Freedom of Information (Designation as Public Authorities) Order 2011 came into force on 1st November 2011. It brings the following three public authorities within the scope of FOIA: the Associaton of Chief Police Officers of England, Wales and Northern Ireland (ACPO); the Financial Ombudsman Service and the Universities and Colleges Admissions Service (UCAS).
Month: November 2011
VEXATIOUS REQUESTS: LOOK TO THE DICTIONARY, AND TO COMMON SENSE
Readers with an eye on the correct application of section 14 of FOIA – vexatious requests – will be familiar with the ICO’s guidance on and approach to deciding whether a request meets that definition. The touchstones are obsessiveness, imposing a significant burden, lacking a serious purpose and/or causing distress, disruption or annoyance. The Tribunal has on many occasions approved those touchstones as being useful guidance. Two very recent decisions, however, have seen the Tribunal preferring to emphase a common-sense and dictionary-led approach in preference to a checklist of tests: see Graham v IC (EA/2011/0133-34) and Ainslie v IC and Dorset County Council (EA/2011/0097).
This fresh emphasis is encapsulated in the following words of the Tribunal:
“While the Information Commissioner may have developed his own guidance with respect to this matter; from the perspective of the tribunal the common sense application of the ordinary meaning of the word to the actual circumstances of an individual case must be the correct approach to adopt. The Oxford English dictionary provides useful guidance as to the meanings of vexatious and associated words. While this guidance extends over several columns it seems to the tribunal that a definition of “tending to cause trouble or harassment by unjustified interference” fairly summarises the meaning.”
Robin Hopkins
CAN REQUESTERS ASK FOR SUMMARY INFORMATION?
Suppose a FOIA request is refused in reliance upon exemptions. Is the requester entitled to submit a further request, asking for summaries of that same information such that the summaries do not contain any exempt information?
This question was considered in Pounder v IC and MOJ (EA/2011/0116). The Tribunal agreed with the Commissioner that the answer to this question is ‘no’. A requester is only entitled to ‘information held’, so if a summary document exists at the time of the request, then that is within scope and (subject to exemptions) must be disclosed. Otherwise, public authorities are not required to create or compile summaries so as to help requesters ‘get round’ exemptions.
Section 11(1)(c) of FOIA provides that where a complainant specifies a preference for the requested information to be produced in the form of a summary or similar précis, the public authority should give effect to that request and preference where reasonably practical to do so. This provision, said the Tribunal, comes into play only once this prior question has been determined, namely: to what information is the requester entitled? The public authority must consider the scope of the request, identify the information it holds within that scope and apply exemptions as it sees fit. Only then must a ‘section 11 preference’ be given effect to where reasonably practical. If a ‘summary’ is not held at the time of the request, then it need not be created.
Robin Hopkins
CRITICISM OF RIPA
Justice has published a report, Freedom from Suspicion, calling for “a fundamental overhaul of the Regulation of Investigatory Powers Act in order to protect the right of individual privacy from unnecessary, unwarranted and unchecked state intrusion“. The press notice highlights some of the report’s findings:
- Since RIPA came into force in 2000, there have been 20,000 interception warrants (e.g.secretly listening to phone calls and reading emails), more than 30,000 authorisations for directed surveillance (e.g. following someone in public), and more than 2.7 million requests for communications data (e.g. access to phone bills). The true extent of surveillance activity since 2000 is unknown because full numbers have never been published;
- Of the nearly 3 million surveillance decisions taken by public bodies under RIPA since 2000, fewer than 5,000 (or 0.5%) were approved by a judge;
- The highly secretive Investigatory Powers Tribunal, the main complaints body under RIPA, has only dealt with 1,100 complaints since RIPA began. In the last decade, it has only upheld ten complaints;
- RIPA is poorly-drafted and lacks sufficient safeguards against abuse. This has contributed to the failure of the Metropolitan police to properly investigate phone-hacking, the illegal recording of privileged conversations between lawyers and clients, the spread of CCTV cameras, and the use of snooping powers by local authorities.
The report argues that the proposed amendments to RIPA put forward in the Protection of Freedoms Bill are nowhere near enough to bring Britain’s surveillance laws in line with human rights standards.
PUBLIC AUTHORITIES – ENVIRONMENTAL INFORMATION REGULATIONS
Further to Robin Hopkin’s post this morning, here is a summary of the First-Tier Tribunal’s decision in Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182).
Mr Bruton had requested environmental information from the Duchy of Cornwall, concerning the conservation of an area designated under the Habitats Directive 92/43/EEC which lies within the Ducy. The Duchy refused the request on ground that it was not a public authority for the purposes of the Environmental Information Regulations 2004 (“the EIRs”).
The statutory framework
Under regulation 2 of the EIRs:
“(2) Subject to paragraph (3), “public authority” means –
(a) government departments;
(b) any other public authority as defined in section 3(1) of the Act Freedom of Information Act 2000, disregarding for this purpose the exceptions in paragraph 6 of Schedule 1 to the Act, but excluding –
(i) any body or office-holder listed in Schedule 1 to the Act only in relation to information of a specified description; or
(ii) any person designated by Order under section 5 of the Act;
(c) any other body or other person, that carries out functions of public administration; or
(d) any other body or other person, that is under the control of a person falling within sub-paragraphs (a), (b) or (c) and –
(i) has public responsibilities relating to the environment;
(ii) exercises functions of a public nature relating to the environment; or
(iii) provides public services relating to the environment.”
The EIRs of course implement Directive 2003/4/EC of 23 January 2003 on public access to environmental information (“the Directive”). This provides that:
“2. ‘Public authority’ shall mean:
(a) government or other public administration, including public advisory bodies, at national, regional or local level;
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and
(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).
Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition.”
The Tribunal also took into account the definition of a public authority for the purposes of the Aarhus Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters.
The issues
The Tribunal was mindful that the concept of public authority that pertains in relation to the public’s right of access to environmental information as deployed in the Directive must be construed having regard to the wider scheme of EU environmental law, in particular the Habitats Directive (paragraphs 20-21).
It identified at paragraph 32 that the questions to be decided were:
a) Whether the Duchy was a body or other person, and
b) If so, whether it carried out functions of public administration, or
c) Whether the Duchy was under the control of the Duke who carries out functions of public administration and has public responsibilities relating to the environment, exercises functions of a public nature relating to the environment, or provides public services relating to the environment.
Whether the Duchy was a body or other person
On the first issue, the Tribunal considered detailed evidence about the Duchy, which makes for an interesting (if esoteric) read. It concluded that, “whatever the basis of the Duchy under the 1337 Charter, we find that the Duchy is now a body or other legal person. Taking into account all the above evidence and other statutory provisions, the practices of the Duchy and the way it has presented itself to the world including Parliament, the differentiation of the Duchy and Duke in commercial and tax matters as well as under legislation and the contractual behaviour of the Duchy, we are led to the conclusion that the Duchy is a body or other person for the purposes of regs 2(2)(c) and (d) of the EIR” (paragraph 57).
Whether it carried out functions of public administration
The Tribunal described the Upper Tribunal decision in Smartsource v IC and others [2010] UKUT 415 (AC) as “very relevant” here (paragraph 58). It found that Smartsource meant that “a body which carries out functions of public administration will not be a public authority for the purpose of the EIR if those functions are on the whole secondary functions which are related to and flow from primary functions which are not functions of public administration. But where the functions of public administration are separate self standing functions which do not flow from or depend on the main activity of the body, they are not “ancillary” in Smartsource terms and the body may be a public authority for the purpose of the EIR” (paragraph 63). Note that this aspect of the decision may well not be the final word on this topic. The Upper Tribunal is due to hear an appeal in Fish Legal and Shirley v IC and United Utilities Water plc and others (GIA/0979 & 0980/2011) in January 2012, which will include consideration of the Upper Tribunal’s decision in Smartsource v IC and others [2010] UKUT 415 (AC).
Applying this test in the case of the Duchy, the Tribunal found that its primary function (according to its 2010/11 Annual Report) was to provide an income for present and future Dukes and that the Duchy’s principal activity to generate this income was the commercial management of its lands and properties (paragraph 64).
The Tribunal found (after a further lengthy esoteric discussion) that it was also a Statutory Harbour Authority (paragraph 87). As such, it was a relevant authority and a competent authority for the purposes of the Habitat Directive and the Conservation of Habitats and Species Regulations 2010 (paragraph 97). The judgment records (without expressly endorsing) the argument of the Appellant that “it would be entirely contrary to the aims of the Aarhus Convention, the Directive and the EIR if a body which is a ‘relevant authority’ for the purposes of what the European Commission has stated is “the cornerstone of Europe’s nature conservation policy” (alongside the Birds Directive) was not subject to the European access to environmental information regime” (paragraph 92).
The Tribunal applied the multifactorial approach in Smartsource to the Duchy’s activities as a Statutory Harbour Authority and concluded that “the preponderance of factors point to the Duchy carrying out functions of public administration. This conclusion does not mean that we consider all Statutory HAs will necessarily be public authorities under the EIR. It depends on the facts in each case” (paragraph 99). (In the alternative, it found that the Duke was the Statutory HA (paragraph 100).) It further concluded that these functions were not ancillary to the Duchy’s primary business (paragraph 101).
Where have we got to so far?
At this point of the judgment, the Tribunal helpfully summarises its conclusions as follows (paragraph 102):
“So far we have found that:
i) The Duchy is a body or other person;
ii) The Duchy is a Statutory HA;
iii) Statutory HAs are ‘relevant authorities’ and likely ‘competent authorities’ under the UK regulations implementing the Habitat Directive;
iv) The Aarhus Convention requires the Directive to be read purposively so as to cover information requests relating to the EU environmental regime as a whole;
v) Statutory HAs carry out functions of public administration;
vi) Therefore the Duchy is a public authority under reg 2(2)(c);
vii) Even if the Duchy is not the Statutory HA, the Duke is;
viii) The present Duke manages and controls the Duchy;
ix) Then the Duchy is a public authority under reg 2(2)(d).”
The most interesting point here is that the Tribunal accepts the Appellant’s argument (which was not expressly endorsed at paragraph 92, as discussed above) that the Directive has to be read so as to cover information requests relating to the EU environmental regime as a whole. Does this mean that any competent authority for the purposes of the Habitats Directive and/or other environmental directives must be a public authority for the purposes of the EIRs?
Conclusions
Having reached the above findings, the Tribunal found that it did not need to go any further. The fact that the Duchy was a public authority for the purpose of the EIRs in its capacity as a Statutory Harbour Authority meant that it was a public authority for the purposes of the EIR generally (paragraph 103).
The Tribunal did go on to comment on two other factors which it considered also pointed towards the Duchy being a public authority that was subject to the EIRs. These factors were that the Duchy provided an income for the Price of Wales in his constitutional capacity to undertake public services and that it enjoys a statutory right to bona vacantia.
The decision only applies to public authorities for the purposes of the EIR and not also FOIA. However, as discussed in previous posts (e.g. here) the definition of environmental information is wide.
UFO OFFICIALS’ PRIVACY PROTECTED
This afternoon’s Tribunal decision in McGonagle v IC and MOD (EA/2011/0104) brings a sci-fi twist to FOIA caselaw. The decision is a straightforward application of the s. 40(2) exemption for personal data. The context is rather quirkier: the requester had sought the names of former Ministry of Defence officials responsible for UFO matters (note: that role has now been disbanded). The Tribunal found that the exemption applied. For those with an interest in such things, however, the MOD’s publication scheme provides rather a lot of UFO-related material.
Robin Hopkins