In Summers, the First-Tier Tribunal has revisited the application of the national security exemption which was previously examined in the case of Kalman v IC (application of s. 24 to airport security arrangements – see my earlier post on the Kalman case). The principal issue in Summers was whether the IC had erred in concluding that information comprising the total amount spent by the Metropolitan Police’s Royal Protection Unit in a particular year was exempt from disclosure under s. 24 FOIA. In a robust judgment, the Tribunal held that the Commissioner had been right to conclude both that s. 24 was engaged in respect of the information and that the public interest balance weighed in favour of maintaining the exemption. Notably, the Tribunal rejected the Appellant’s case that the Royal Family was not integral to our domestic constitutional arrangements and, hence, could not give rise to national security considerations. In reaching this conclusion, the Tribunal adopted the broad approach to construing the concept of national security approved in Kalman. The Tribunal also found that, whilst taken in isolation the information may not be significant, when placed within a larger mosaic of information already available within the public domain, the information could be of use to terrorists and other criminals wishing to target members of the Royal Family (see further the discussion of the ‘mosaic effect’ at paras. 73 et seq). The Tribunal went on to conclude that, in all the circumstances, the public interest balance weighed firmly in favour of the s. 24 exemption being maintained. The Tribunal also considered the application of the exemptions provided for in ss. 31 (prevention of crime) and 38 (health and safety). It found that the information was also exempt under these sections.

Finally, the Tribunal was asked to consider whether the public interest considerations applicable to all three exemptions should be aggregated together, as per Ofcom v IC (Case C-71/10 (ECJ)). The Tribunal held that the issue was strictly academic as it had found that the information was exempt under each of the three individual exemptions in any event. However, it went on to comment obiter that, had aggregation been in issue, it would have ‘unhesitatingly’ held that the aggregated interests in maintaining the exemptions outweighed the public interests in disclosure (para. 96).

The Tribunal has considered the scope of the absolute exemption in section 23 FOIA, where information relates to one of a number of specified security bodies (Dowling v Information Commissioner and the Police Service for Northern Ireland, EA/2011/ 0118).

The requester, a journalist, asked the Police Service for Northern Ireland to provide him with a copy of a report known as Stevens III. The summary of this report by Mr John Stevens (as he then was) had been published in 2003 and recorded that he had found “collusion between the RUC and loyalist groups, whereby RUC agents were allowed to engage in terrorist attacks, indeed murder, evidence of such attacks was mishandled by investigators, important intelligence was suppressed and warnings of threatened attacks were provided to Catholic targets much less frequently than to Loyalist. Agents were allowed to operate beyond any control. Sir John concluded that his investigations had been subject to widespread obstruction both by RUC and army personnel, even involving arson. Lives, including the lives of Finucane and Lambert, could have been saved and serious crimes prosecuted to conviction but for such disgraceful misconduct” (judgment at [8]). The full report had not been published due to security concerns.

The Police Service for Northern Ireland refused the request, relying on a number of exemptions (including the absolute exemption in section 23). The issue for the Tribunal was the meaning of “relates to” in section 23. It found that the section 23 exemption “has nothing to do with any direct damage to national security (see s.24). It expressly protects any direct or indirect security source of requested information but goes much further” (judgment at [18]). “Information describing a [specified security body] or its activities is clearly covered but “relates to” plainly extends beyond that” (judgment at [19]). It concluded that “any significant connection between such a body and such information is caught” (judgment at [20]).

Interestingly, the Tribunal commented that “As the appellant observes in his grounds and as has been said in Parliament, it is difficult to conceive of more serious charges made against organs of the state than those contained in the published Stevens III” (judgment at [8]) … “Whilst the personality and motives of a requester under FOIA are immaterial, it is hard to imagine a subject in which the Irish public, hence Irish journalists, could have a greater legitimate interest than the full content of Stevens III, recording, as it does, the conduct of certain elements of the police and the security forces. That said, the public interest is not an issue here since the exemption under scrutiny is absolute” (judgment at [9]). Given these comments, it may be that this was a case where the Tribunal would have welcomed some discretion.

Rachel Kamm, 11KBW

Thinktanks are now a well-entrenched feature of our political landscape. They potentially wield significant influence over policies and policy-makers. However, they are plainly not ‘public authorities’ for the purposes of the information access regime and, hence, are not susceptible to the application of FOIA or the EIR. That said, information relating to these organisations may in certain instances be held by public authorities which do fall within the purview of the access legislation. The question of whether that information is disclosable under FOIA or the EIR is one which was recently considered by the First-Tier Tribunal in Montague v IC (EA/2011/0177). In Montague, a request was made by a journalist for disclosure of the identity of an individual who had made a sizeable donation to Global Warming Policy Foundation (GWPF), a climate change sceptic thinktank chaired by Lord Lawson. The information in question was held by the Charity Commission (CC) as it had been provided to the CC by GWPF in the course of GWPF applying for charitable status. The requested information clearly amounted to the ‘personal data’ of the donor. The principal issue which arose in Montague was therefore whether the IC had correctly concluded that that data was exempt from disclosure under s. 40(2) FOIA. Mr Montague argued before the Tribunal that the IC had erred when he concluded that the information was exempt. This was not least because he had underestimated the GWPF’s influence over Government and policy-makers and, by extension, the public interest in accessing information which revealed who had funded GWPF.

The Tribunal rejected Mr Montague’s case. In a conclusion which will no doubt raise eyebrows in certain quarters, the Tribunal found that there was no evidence before it that GWPF exerted any actual influence over policy-makers. This was despite the fact that GWPF had itself claimed in its annual report that it exerted ‘significant influence’ over policy-makers. Importantly, the Tribunal also found that the donor in question was not an individual who had sought a career in the public eye. It went on to conclude that the charity was not ‘so influential as to make the disclosure of its financial affairs a matter of legitimate public interest outweighing the privacy rights of the data subject’ (para. 36). The Tribunal found that the result would have been the same had the EIR rather than FOIA been the applicable regime. However, it also commented obiter that the EIR did not apply to the information in any event as it did not amount to ‘environmental information’.

Timothy Pitt-Payne QC and Robin Hopkins spoke at the 11KBW Information law seminar; Data Protection for the 21st Century: The EU Reform Proposals on 21st February 2012. The papers from this seminar are now available to download – Robin Hopkins paper – click here ; Timothy Pitt-Payne QC paper click here

The question of whether and to what extent the personal data of public servants should be disclosed under FOIA is often a difficult one for public authorities to resolve. In the MPs’ expenses cases, the Commissioner and the Tribunal took a firm view that the legitimate interests of the public in accessing information relating to expenses outweighed any claims to privacy which the MPs might have. More recently, the Secretary of State has issued a code of recommended practice to local authorities inviting publication of salaries of senior officers (see further this earlier post on the code). But what level of data transparency is required if the personal data in question does not concern the expenditure of public monies but rather the way in which the private lives of public servants may intrude on their public duties? How does the s. 40 exemption play out in those circumstances? It was precisely these questions which the Tribunal was called upon to consider in the recent case of Greenwood & Bolton Metropolitan Borough Council v IC (EA/2011/0131).

In Greenwood, a request was made for disclosure of information revealing the declarations of interest which had been made by officials employed by Bolton MBC. The request was not limited either by reference to the nature of the interests in question or the seniority of the individual officers, although as it happened the relevant register of interests only recorded declarations from principal officers and above. The withheld information by its very nature comprised information about what individual officers got up to when they were not at work and, as such, was inherently private information. However, it was private information which plainly had a bearing on the discharge of the officers’ duties, hence its inclusion on the register of interests.

In a nuanced judgment, the Tribunal concluded that: the names, departments, sections and job titles of all officers who had made entries on the register should be disclosed and that, in addition, in relation to chief officers, information revealing other professional commitments (e.g. consultancies) should be disclosed but that the remainder of the information should be withheld. In reaching these conclusions, the Tribunal rejected arguments advanced by the Council that disclosure of any of the data would have a ‘chilling effect’ on the system of declarations. In its view, officers would still be inclined to make declarations, the disclosure notwithstanding, particularly because of the ‘auditor effect’, namely ‘disclosure would enable members of the public to scrutinize the information and challenge any inaccuracies or omissions’ which was ‘likely to add frankness in declaration’ (para. 30). However, it accepted that withholding the bulk of the requested information was justified. This was particularly in view of the facts that disclosure of some of the information would be likely to cause substantial distress and would be extremely intrusive into the lives of officers and, further, disclosure would interfere with the private lives of third parties involved in the interest in question (paras. 33-43). The decision effectively leaves the public in a situation where it knows that an officer has identified a potential conflict of interest but not why the conflict arose, unless that is the conflict relates specifically to the professional commitments of a chief officer.