It seems to be a busy month in terms of information law cases involving the police. Earlier this month, Robin Hopkins blogged about the recent Catt case where the Administrative Court held that the retention of data about a protestor did not breach the protestor’s Article 8 right to privacy (see his post here). I then blogged on a recent Tribunal case where the Tribunal found that the Devon & Cornwall Constabulary had not breached its obligations under FOIA when it refused to disclose the location of its automatic number-plate recognition cameras (see my post on the Mathieson case here). Then on 22 June 2012, a further judgment was handed down by the Administrative Court in which the court considered the impact on Article 8 on the retention of photographic information retained by the Met Police: R (RMC & FJ) v Commissioner Of Police Of The Metropolis & Ors [2012] EWHC 1681 (Admin).

The judgment addressed two cases. In the RMC case, R had been arrested on suspicion of causing ABH to a police community support officer who had stopped her riding her bicycle on the footpath. In the FJ case,  F was arrested at the age of 12 on the suspected rape of his second cousin. Both R and F were fingerprinted and photographed by the police and DNA samples were taken. Neither R nor F were prosecuted. The police considered the requests under the ACPO Exceptional Case Procedure in the Retention Guidelines and decided that the fingerprints and photographs should be retained. The Commissioner’s case before the court was that police policy was to apply the Guidance on the Management of Police Information (MoPI), following the MoPI Code of Practice. R and F obtained permission to apply for judicial review in relation to the retention of the custody photographs. F also obtained permission in respect of certain of his data stored on the police national computer (PNC).

The court held that the retention of the custody photographs amounted to an unlawful interference with R’s and F’s Article 8 rights. Importantly, the court held that the individual’s reasonable expectations were not the only considerations when it came to whether there had been an interference with their Article 8 rights. Following S v United Kingdom, the mere retention of photographic data by the police, irrespective of the individual’s reasonable expectations was sufficient to amount to an interference with Article 8 rights (R (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414 considered). However, the court went on to find that in any event the retention of the photographs relating to R and F interfered with their right to privacy under Article 8 in view of their reasonable expectations that the photographs would not be retained.

The court went on to find that that the Commissioner’s policy on retention of the custody photographs amounted to an unlawful interference with R’s and F’s Article 8 rights. This was because it failed to strike a fair balance between the competing public and private interests and did not in all the circumstances meet the requirements of proportionality imposed under Article 8(2). In reaching this conclusion, the court took into account in particular that the policy did not draw an adequate distinction between the convicted and those who were either not charged or were charged but acquitted and, further, that photographs were retained for a minimum of six years and in practice were likely to be retained for a much longer and indeed potentially indefinite period. In respect of F, the court also noted that the policy failed to take into account that F was a minor at the time of arrest. The court went on to order that the Commissioner should have a further reasonable period within which to revise the policy so as to render it compliant with Article 8.

Notably, the court reached rather different conclusions on the question of whether the information stored on the PNC with respect to F breached his Article 8 rights. In particular, it held that, whilst the retention of the rape allegation on F’s PNC records engaged Article 8 rights, the inference with those rights was plainly proportionate and justified in all the circumstances. This was particularly because a PNC record which did not include the basic history of F’s involvement with the police, including the rape allegation, would be an incomplete and potentially misleading record.

Anya Proops

I posted recently about an important recent case on the subject of accessing personal data about facebook users (see my post on the Nicola Brookes case here). In my post, I said that it was understood that this may have been the first case in which an individual has been able to secure a court order requiring facebook to disclose personal data about its users. The wonders of the internet are such that I received today an email from the Cayman Islands’ Deputy Information Commissioner, Jan Liebaers, alerting me to the fact that there had in fact been an earlier judgment of the High Court making a similar order: Applause Store Productions Ltd and another v Raphael [2008] EWHC 1781 (QB). The Applause Store case was actually a libel case. The background to the case was that a fake facebook page had been set up which contained material which was defamatory of one of the claimants (MH). An issue arose in the case as to who had been responsible for setting up the fake page. It would appear from paragraph 10 of the judgment that the claimants’ solicitors, Olswang, obtained a Norwich Pharmacal order against Facebook Inc for disclosure of the registration data provided by the user responsible for creating the false material, including e-mail addresses, and the IP addresses of all computers used to access Facebook by the owner of those email addresses. Facebook Inc went on to provide Olswang with evidence, which was not contested at the hearing, showing that the profile was created on a computer using an IP address which was accepted to have been the Defendant’s and that the relevant group page was created on a computer using that same IP address on the afternoon of 20^th June 2007. The remainder of the judgment concerned the question of whether the court should find that the Defendant was the individual who set up the fake facebook page and, hence, that he was responsible for defaming MH. On this issue, the judge held that the Defendant’s case was utterly implausible and that he was liable in respect of the defamation. My thanks to Jan Liebaers for the alert about this important case. Taken together the Brookes case and the Applause Store case reveal a clear appetite on the part of the judiciary to issue orders requiring facebook to provide evidence where this is necessary in order to further the interests of justice.

Anya Proops

The fourth edition of the Information Law Reports is now available. Reported cases include: Kennedy v IC, All Party Parliamentary Group on Extraordinary Rendition v IC & FCO, Breeze v IC and the Chief Constable of Norfolk Constabulary and the Crown Prosecution Service, Bolton v IC & East Riding Yorkshire Council and Cranfield University v IC

The reports are edited by Timothy Pitt-Payne QC, Anya Proops, and Robin Hopkins, three of the leading practitioners in the field of information law and members of 11KBW’s Information Law Group.

The reports were written by Members of the Information law team including  Timothy Pitt-Payne QC, Anya Proops, Robin Hopkins, Jane Oldham, Clive Lewis QC, Akhlaq Choudhury, Julian Milford, Holly Stout and Rachel Kamm.

For more information on the Information law reports and how you get your free trial click here

The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2012, SI 2012/1500 (“the 2012 Order”), made on 11 June 2012 and coming into force on 1 November 2012, restricts the circumstances in which local authorities may authorise directed surveillance under the Regulation of Investigatory Powers Act 2000 (“RIPA”).  The 2012 Order amends the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010, SI 2010/521 (“the 2010 Order”), which prescribes the offices, ranks and positions of the individuals within a public authority who have power to grant authorisations for the carrying out of directed surveillance, as defined by s26(2) of RIPA, and sets out the restrictions on the circumstances in which authorisations can be granted.

Article 2(4) of the 2012 Order inserts a new Article 7A into the 2010 Order, to impose a new restriction on individuals holding a prescribed office, rank or position in any county council in England, a London borough council, the Common Council of the City of London in its capacity as a local authority, the Council of the Isles of Scilly, or any county council or county borough council in Wales. Such an individual may not now grant an authorisation for the carrying out of directed surveillance unless it is for the purpose of preventing or detecting a criminal offence and it meets the condition set out in New Article 7A(3)(a) or (b). Those conditions are that the criminal offence which is sought to be prevented or detected is punishable, whether on summary conviction or on indictment, by a maximum term of at least 6 months of imprisonment, or would constitute an offence under sections 146, 147 or 147A of the Licensing Act 2003 or section 7 of the Children and Young Persons Act 1933.

Facebook has now been in existence for some eight years. Its active users exceed 900 million. However, we are still very much in the early days of understanding how information law applies to information, including personal data, which is stored and shared on Facebook. In this context, it is worth noting two recent judicial decisions which bring into sharp focus the way in which information on Facebook may be both used and misused.

The first case involved a claim brought in the High Court by Nicola Brookes. Ms Brookes had been subject to extremely serious abuse on Facebook after she posted a comment online supporting a contestant on the X-Factor. The abuse included the setting up of a fake Facebook page which purported to be in her name and which resulted in Ms Brookes being falsely accused of being a paedophile and drug-user. Ms Brookes’ abusers of course operated anonymously so there was no way for Ms Brookes to identify them merely by use of the site. Having then apparently failed to obtain details of the identity of the abusers directly from Facebook, Ms Brookes was obliged to apply to the court for a Norwich Pharmacal order requiring Facebook to disclose the names, email addresses and IP addresses of the people who had launched the abusive messages. It is understood that this may be the first case in which an individual has been able to secure a court order requiring Facebook to disclose personal data about its users. No doubt, this judgment (which it seems has yet to be reported) sends out an important message to those individuals who would wish to engage in anonymous cyber-bullying. However, query just how much reassurance the judgment gives to those who realistically are not in a position to incur the considerable costs entailed on engaging in the type of litigation which Ms Brookes was obliged to undertake.

The second case involved the application of s. 40 FOIA (the personal data exemption) to the names of a number of Youth Councillors, including a number of Youth Councillors who were minors, in circumstances where it was discovered after the Commissioner issued his decision notice that many of the names could be found by accessing an effectively public-facing Facebook page: Morley v IC & Surrey Heath Borough Council (EA/2011/0173).

The background to the Morley case was as follows: in 2010, the Council approved a planning application to allow for the creation of a recreation park within its area; as part of the planning process the Council unofficially consulted the Surrey Heath Youth Council; the Youth Council is funded by Surrey County Council and comprises youth councillors who are all aged between 13 and 19; after the planning application was approved, Mr Morley, who objected to the development, requested disclosure of the names of the members of the Youth Council who had been consulted by the Council; that request was refused by the Council on the basis that the names amounted to personal data which were exempt from disclosure under s. 40. It appears that after the Council refused Mr Morley’s request, Mr Morely discovered that the Youth Council had a Facebook page and, further, that information on that page included the names of various Youth Council members along with their photographs. Mr Morley’s position was that all the names should be released on the basis that there is a strong need for the planning process to be fully transparent and that this principle applied equally to those who are unofficially consulted and, indeed, irrespective of whether they may have been minors at the time they were consulted or, further, at the time of the request. He further submitted that there was in any event no proper justification for withholding the names of those Youth Councillors who had voluntarily agreed to place their data on a Facebook page which was open and accessible to anyone who registered with Facebook. The Commissioner and the Council argued before the Tribunal that all of the names should be withheld, not least because it could not be assumed that the individual Youth Councillors listed on the Facebook page had been listed at the time of the request.

By a majority decision, the Tribunal concluded that s. 40 was not engaged with respect to the Youth Councillors who were listed on the Facebook page but that it was engaged in respect of the other Youth Councillors. With respect to those Youth Councillors who were listed on Facebook, the Tribunal held as follows:

’77. … their decision to put their names and photographs into the public domain considerably diminishes the strength of the respondent’s arguments for why disclosure of their names would not be fair. In particular, arguments that they may not have expected that the information would be disclosed, that they have not consented to their names being disclosed, and that disclosure would cause them distress, rapidly fall away, in our view, where the Youth Councilors have themselves chosen to make the information available in a widely used and easily accessible social networking site, without placing any restrictions on access. In our view, it cannot be said to be unfair to disclose the names of the Youth Councillors whose names appear on Facebook’.

With respect to the argument that the names should still be withheld because it could not be assumed that the individuals in question were listed on Facebook at the time of the request, the tribunal said this:

’80. However, while we acknowledge the problems identified by the Council and Commissioner, FOIA does not require a public authority to comply with a request only when the information it holds precisely matches what the requester has asked for. A requester will often have the disadvantage of not knowing exactly what the public authority holds. What the public authority must do in this situation is to engage with the requester, pursuant to its obligations under section 16 (obligation to provide advice and assistance), to explore whether the information it does hold, even if imperfect, can satisfy the request. The Council has not done this. We do not criticise it. We are mindful that the Council was not aware of the Facebook page at the time that it refused the request, and in any event has taken the position that the information is exempt. However, the mismatch between what the Appellant has requested and what the Council can provide is not itself a reason for refusing to disclose the information under section 40(2), nor is it a basis on which disclosure can be said to be unfair’.

With respect, it is not entirely clear how these points answer the argument which the Commissioner and the Council was advancing. But perhaps the more important point emerging from this decision is that it suggests that individuals, even where they are minors, must have a substantially lower expectation of privacy in respect of their personal data in circumstances where they opt to place that data on an effectively unrestricted Facebook page.

Anya Proops