As Tim Pitt-Payne QC commented in his post on the report earlier today, the Committee’s report has not landed a bombshell in the middle of the FOIA landscape. To a very large extent, the report endorses the current structure and content of the legislation, something which the Commissioner clearly welcomes (see his recently published statement here). However, whilst the Committee has largely resisted calls for FOIA to be amended, it has commented fairly extensively on how the Act should be applied in practice. This commentary is doubtless going to influence the evolution of FOIA case-law for the foreseeable future.

Perhaps most notable in this context is the Committee’s commentary on the application of the ‘safe space’ exemptions afforded under ss. 35 and 36 FOIA. As regular readers of Panopticon will know, the question of whether the qualified exemptions provided for under ss. 35 and 36 are fit for purpose in terms of creating the necessary safe, confidential space within which sensitive government policies can be openly and frankly debated has been a political hot potato for some time. The former Prime Minister, Tony Blair, the current Prime Minister, David Cameron, and those who have operated at the highest level of the Civil Service, including the former Cabinet Secretary, Gus O’Donnell, have all voiced concerns to the effect that the application of FOIA is having a ‘chilling effect’ on the operation of government. The nub of the argument here is that ss. 35 and 36 do not allow for a clearly delineated and consistently protected ‘safe space’ for high level policy discussions, including cabinet discussions. It has been suggested that this undermines the operation of government in three ways. First, it leads to participants in policy discussions not expressing themselves openly and frankly. Second, it leads to participants avoiding recording their discussions (e.g. communicating by telephone rather than by email). Third, it deters third party stakeholders from contributing to policy discussions. These concerns have led to questions being posed as to whether FOIA should be amended so as to create an absolute class-based exemption in respect of information relating to high level policy discussions.

In his evidence to the Committee, the Commissioner resisted calls for FOIA to be amended so as to create such an exemption. His position has consistently been that FOIA already amply accommodates the need to create a safe space for policy discussions and that, as currently formulated, the Act allows for a proper balance to be struck between the need to create a safe space for policy discussions and the need to create a meaningful level of transparency and accountability around such discussions. The Commissioner has also specifically challenged the notion that FOIA has, in practice, had any chilling effect on the way in which government functions.

The following is a summary of the Committee’s conclusions on the ‘safe space’ issue:

• on the available evidence, it was difficult to say whether FOIA, as currently formulated and applied, was having a chilling effect on the operation of government. A central difficulty here was that, if civil servants and others were erring on the side of not recording their discussions, there would be no paper trail evidencing this behaviour (paras. 154, 190 and 200).

• Whilst there were numerous decisions by the Commissioner and the Tribunal which recognised the need for a safe space, the fact that there was a risk in individual cases that policy information may be disclosed could be sufficient to create ‘unwelcome behavioural changes’ on the part of policy-makers (para. 166).

• However, the power to issue a ministerial veto created under s. 53 FOIA was an important backstop which could be used to protect highly sensitive policy information. Thus, ‘the veto is an appropriate mechanism, where necessary, to protect policy development at the highest levels’ (para. 179). Moreover, ‘if the most senior officials in Government are concerned about the effect of the Act on the ability to provide frank advice they should state explicitly that the Act already provides a safe space, and that the Government is prepared to use the ministerial veto to protect that space if necessary’ (para. 198).

• It would not be appropriate to amend FOIA so as to include an absolute class-based exemption in respect of high level policy discussions. This is particularly because the creation of such an exemption would cut across the principle of open government in a way that could not be justified, not least in view of the lack of any reliable evidence as to chilling effect (para. 200).

• However, everyone involved in using or determining the ‘safe space’ should be reminded that ‘the Act was intended to protect high-level policy discussions’. Moreover, ‘the realities of Government mean that the ministerial veto will have to be used from time to time to protect that space’ (para. 201).

With respect to the latter point, the Committee highlighted a potential difficulty with the current published policy on the use of the veto. That policy suggests that the veto would only be used in ‘exceptional’ circumstances. However, the Committee’s view was that: ‘if the veto is to be used to maintain protection for cabinet discussions or other high-level policy discussions rather than to deal with genuinely exceptional circumstances then it would be better for the Statement of Policy on the use of the ministerial veto to be revised to provide clarity for all concerned’ (para. 179).

It is hard to read the report as containing anything other than an open invitation to the Government to deploy its powers of veto more regularly than has hitherto been the case, particularly in respect of information relating to high level policy discussions. However, if the Government does move in this direction it will potentially engender a number of new problems. First, regular deployment of the veto will doubtless raise questions about whether the Government is effectively using its powers of veto to create an absolute exemption ‘by the back-door’. Second, unless the veto is used at an early stage of the process, it will create a situation in which significant time and costs will have been wasted on appeals to the tribunal; an unattractive scenario in the current age of austerity. Third, regular use of the veto potentially risks fomenting distrust on the part of the public that the Government is using the veto not so as to protect the integrity of government decision-making but rather so as to insulate the Government against justified criticisms of its policies. Of course, regular use of the veto may itself set further litigation hares running as it will no doubt encourage those in favour of open government to challenge use of the veto by means of judicial review. It follows that the litigation focus relating to FOIA requests concerning high level policy discussions may ultimately shift away from tribunal litigation towards litigation conducted in the administrative court.

Further panopticon posts on other aspects of the report will be published over the coming days.

Anya Proops

The House of Commons Justice Committee’s Report on its post-legislative scrutiny of the Freedom of Information Act 2000 is published today and is available online.

We will be analysing the Report more fully in the coming days, but in general it is clear that the Report has not opted to recommend any radical change to the FOIA regime.  The Committee suggests that there should be a modest reduction (in the region of 2 hours) to the time that public authorities are required to spend in answering requests.  They do not suggest any expansion in the range of activities that are taken into account in applying the costs limit.

There is no recommendation for any additional exemption to preserve the “safe space” for policy formation and Cabinet discussion.  But there is a clear signal from the Committee that the exemptions in FOIA section 35 are intended to give some protection to high-level policy discussions, and that the use of the ministerial veto may sometimes be required.

About a quarter of the written responses to the Committee’s call for evidence were from the university sector. The Committee recommends a Scottish-style exemption for unpublished research information, but rejects the suggestion that universities should be taken out of FOIA altogether.

The Committee recommends that the effect of public sector outsourcing on the operation of FOIA should be kept under review.

Yesterday’s Guardian reported that the Cabinet will shortly be considering whether a ministerial veto should be issued in respect of the Plowden decision (see the Guardian article here and see also Tim Pitt-Payne QC’s post on Plowden). If the Government does veto the Plowden decision, it will be the third time it has vetoed an order to disclose information under FOIA in the space of six months (see further my post on the recent veto in respect of the NHS risk register case). Prior to February of this year, the veto had only been deployed twice (once in February 2009 and once in December 2009). The question which is likely to arise if a third veto is issued is whether the increasing deployment of the veto powers by the Government reflects a growing desire to insulate Government from the effects of FOIA (see further my earlier post today on tensions between the Commissioner and the Government over the latter’s commitment to FOIA). On this point, it is worth noting a recent paper by Oonagh Gay (Head of the Parliament and Constitution Centre in the House of Commons) which provides a helpful overview of how the Government has to date used the ministerial veto. In her paper, Ms Gay notes that, in 2009, Australia legislated so as to remove the power of veto from relevant foi legislation (you can find the paper here). It appears that our own government may be moving in a rather different direction. 11KBW’s Julian Milford and Robin Hopkins both appeared in Plowden.

Anya Proops

In September 2010, I blogged about an article in the Guardian with the former Prime Minister, Tony Blair, in which Mr Blair commented that he only had two regrets about his time in office: the ban on fox-hunting and the introduction of FOIA (see my post here). Mr Blair’s public lament about the introduction of FOIA was more recently echoed by Gus O’Donnell who, in November 2011, complained to the House of Commons Public Administration Select Committee that the Act was having a chilling effect on government (see further this Guardian article on his comments). The Information Commissioner has previously fought back against this negative commentary on the operation of the Act. Most notably, in his February 2012 submissions to the Justice Select Committee, which is currently undertaking post-legislative scrutiny of the Act, the Commissioner made clear that, in his view, the Act was generally working well. He specifically rejected the suggestion the exemption afforded under s. 35 (government policy) failed to afford the government a sufficiently roomy ‘safe space’ within which to conduct its business (you can find his written submissions here and see also Tim Pitt-Payne QC’s paper on the wider scrutiny process here). In his oral submissions to the Justice Select Committee in March 2012, the Commissioner reinforced these points, asserting that the claims that FOIA was having a chilling effect on government were ‘ greatly overdone’ (see further this Telegraph article on his evidence). In March 2012, the current Prime Minister stepped into the fray, complaining that FOIA requests ‘fur up’ the arteries of government.

This week, the Commissioner has once again gone on the offensive by highlighting within the media his concerns that, despite the Coalition Government’s earlier expressions of commitment to openness and transparency, there is now a pervasive culture within Government of seeking to evade the application of FOIA. See further this interview with the Commissioner in Monday’s Guardian. In the course of his interview, the Commissioner commented that the criticisms of the Act by people such as Tony Blair, Gus O’Donnell and David Cameron were ‘encouraging the use of unofficial, private email addresses and verbal briefings, which would in turn make government less accountable’. Of course, the use of private email accounts is a real hot potato at the moment as the Government is currently appealing a decision of the Commissioner that an email sent by Michael Gove MP through a private email address fell to be disclosed under FOIA (see further the analysis on this case set out in my paper here. My colleagues, Tim Pitt-Payne, Julian Milford and Robin Hopkins are all acting in the Gove appeal).

The Commissioner’s comments are of course particularly timely as the Justice Select Committee is on the cusp of publishing its first report on the post-legislative scrutiny (publication is due on 26 July 2012 and will no doubt be commented on in detail by Panopticon). It will be very interesting to see what line the Committee takes on this now extremely politicised issue.

Anya Proops

The High Court has recently handed down a judgment in a really interesting case concerning the legality of disclosures of census data by the UK Statistics Board. Every decade since 1801, householders in England and Wales have been required to complete a national census form. Failure to complete the form amounts to a criminal offence. The most recent census was conducted by the newly established UK Statistics Board (“the Board”) in 2011. The Board was established by the Statistics and Registration Act 2007 (“SRA”). Under s. 39(1) SRA, the Board’s employees are subject to a general duty not to disclose personal data acquired pursuant to the census. However, s. 39(4) creates a number of specific exemptions in respect of that general duty. Not least, under s. 39(4)(f), the Board has a specific power to disclose census data amounting to personal data (including sensitive personal data) where the disclosure is made ‘for the purposes of a criminal investigation or criminal proceedings (whether or not in the United Kingdom)’.

In R (Ali & SJ) v Minister for the Cabinet Office & Statistics Board (2012) [2012] EWHC 1943 (Admin), the claimants challenged the legality of s. 39(4)(f) on the basis that it infringed the right to privacy under Article 8(2) and, further, was incompatible with the requirements of the Data Protection Act 1998, as enacted under Directive 95/46. The nub of the claimants’ concern was that the power afforded under s. 39(4)(f) allowed for relatively indiscriminate disclosures of personal data, including sensitive personal data, to foreign authorities.

The claimants challenged in particular the following features of the regime embodied in s. 39(4)(f):

(1) s. 39(4)(f) did not impose any disclosure criteria which meant that disclosures could be effected under s. 39(4)(f) irrespective of the circumstances of the particular case, including the seriousness of the alleged offence;

(2) there was no requirement on the part of the Board to notify data subjects of any proposed disclosure under s. 39(4)(f) with the result that they had no opportunity to object to the disclosure and

(3) s. 39(4)(f) did not operate so as to require the imposition of restrictions on the use of the disclosed personal data by any recipient third party authorities.

The Board’s position was that there was no illegality in the regime afforded under s. 39(4)(f). This was particularly because, as a public authority, the Board was in any event required under s. 6 of the Human Rights Act 1998 to act compatibly with Article 8 as and when it was deciding whether or not to disclose the requested data. The Board also relied on the policy which it applied to the exercise of the power afforded under s. 39(4)(f). Under the policy, the Board will not disclose data voluntarily, will refuse requests if it considers that is the lawful result and will contest any legal challenge to its decisions. In effect, the Board argued that the safeguards necessary to protect the rights of data subjects were imported into the s. 39(4)(f) disclosure regime by both the HRA 1998 and the Board’s policy on the application of s. 39(4)(f).

The Court preferred the Board’s case and accordingly the claims were dismissed. In reaching the conclusion that the Board’s policy offered sufficient safeguards to protect the rights of data subjects, the Court took into account not least that the Board had, to date, applied its policy so as to refuse every request made by police forces or defendants in criminal proceedings and, indeed, had only disclosed data under s. 39(4)(f) in response to court orders. In common with many judgments in this area, the Court was of the view that the s. 39(4)(f) regime was lawful irrespective of whether it was considered through the prism of Article 8 or through the prism of the DPA. In effect, the two legal regimes, perfectly dovetailed with one another. The judgment offers a very clear analysis of the principles applicable under Article 8 and the DPA in respect of the proposed disclosure of personal data. Its analysis of the issues of notification of the data subject and the use of court orders requiring disclosure is particularly worthy of note (see further para. 73 et seq).

Anya Proops

Information lawyers are regularly asked to advise on the question of whether the sharing of information about an individual with that individual’s employer is lawful in all the circumstances. Another issue which commonly arises for information lawyers is whether the employer’s use of that information is itself lawful. Typically, answering this latter question requires an understanding of how information law and employment law intersect. The judgment handed down by the Court of Appeal last week in the case of Leach v Office of Communications [2012] EWCA Civ 959 perfectly illustrates this point.

In Leach, the met police disclosed to Mr Leach’s employer, Ofcom, information relating to certain child abuse offences he had allegedly committed in Cambodia and which led to his arrest in that country. The information initially provided by the police suggested that Mr Leach posed a continuing risk to children and that there was a resulting risk of negative media exposure for Ofcom. Thereafter, the met police agreed to make formal ‘limited disclosure’ to Ofcom pursuant to the Multi-Agency Public Protection Arrangements created under the Criminal Justice and Courts Services Act 2000. The information provided by the police was described as ‘the tip of the iceberg’. Thereafter, Mr Leach was summarily dismissed by Ofcom on the ground that, in view of the information received from the police, his continued employment with Ofcom represented an unacceptable reputational risk for the organisation. Mr Leach complained that his dismissal was both wrongful and unfair under s. 98 of the Employment Rights Act 1996. The nub of his complaint was that it was wrongful and otherwise unfair for Ofcom to have relied on the information provided by the police as a basis for dismissing him, particularly as Ofcom had not conducted its own independent investigation of the child abuse allegations.

The Court of Appeal held that Mr Leach’s summary dismissal had not been unfair or wrongful. In reaching this conclusion, the Court took into account that the information disclosed to Ofcom had been disclosed under an official disclosure regime and that, subject to certain safeguards, an employer must be entitled to treat that information as reliable. The Court also held that Mr Leach’s dismissal did not breach his fair trial rights under Article 6 ECHR and did not otherwise amount to an unlawful interference with his right to privacy. Mummery LJ gave the leading judgment. The following extracts from his the judgment are particularly noteworthy:

‘… this case shows the need for an employer, to whom a third party discloses information or makes allegations, to assess for itself, as far as practicable, the reliability of what it has been told. The employer should check the integrity of the informant body and the safeguards within its internal processes concerning the accuracy of the information supplied. The employer should consider the likely effect of disclosure and whether there was cogent evidence of a pressing need for disclosure to the employer’ (§6)

‘ … The Respondent did not react in knee jerk fashion to the limited and confidential disclosure of a police assessment that the Claimant posed a continuing risk or threat to children. The  Respondent sought clarification, confirmation and some further disclosure before holding an internal disciplinary hearing during which the Claimant was able to put his case and at the end of which the Respondent notified the Claimant of his summary dismissal’ (§10)

Anya Proops