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).

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’.

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.

It is a clear feature of access regime embodied in the EIR that the right of public access to environmental information does not apply to bodies to the extent that they are ‘acting in a … legislative capacity’ (r. 3(3)). This exclusion is permissible under both Article 2(2) of the Directive 2003/4/EC on Public Access to Environmental Information and Article 2(2) of the Aarhus Convention. The exclusion is no doubt derived from the constitutional principle that legislators are democratically elected and are directly accountable to the public (see further the Implementation Guide to the Aarhus Convention, p. 34). But what is the position if a legislative act does not in practice involve any kind of democratically driven legislative process? What if the legislation in question amounts to the mere rubber stamping of a decision by administrators? Will that act still fall within the scope of the exclusion, despite lacking any meaningful democratic credentials? Following a recent judgment of the CJEU, it would seem that the latter question must be answered in the negative. In Solvay & Ors v Région Wallone Case C-182/10 (judgment delivered on 16 February 2012), the Walloon Parliament had legislated to ratify the granting of certain planning consents in respect of a number of major developments. A question arose as to whether the Aarhus Convention applied to the ratifications. The CJEU were in no doubt that the legislation in question could not fall within the ambit of the exclusion provided for in Article 2(2) of the Convention. This was because that legislation ‘simply ratified’ a pre-existing administrative act. It was not derived from a substantive legislative process of the kind required by the Aarhus Convention (see paras. 29-43 of the judgment and note in particular in those paras. the consideration of Article 1(5) of Directive on the assessment of the effects of certain public and private projects on the environment, which provides for a specific right of access to information relevant to environmentally significant developments). It follows that administrative acts cannot be rendered immune from the full force of the environmental information access regime merely by being covered in a thin legislative veneer (see also the judgment in Boxus & Ors [2011] ECR 1-0000 where the Court reached a similar conclusion).

The judgment in Solvay is also interesting for what it says on the question of the effect of the Implementation Guide to the Aarhus Convention. In response to the question whether the Convention must be interpreted in accordance with the Guide, the Court concluded that the Guide, which was drawn up by international experts, was designed to be an ‘explanatory document’ which contained observations which were ‘capable of being taken into consideration if appropriate among other relevant material for the purpose of interpreting the Convention’ but which had ‘no binding force and do not have the normative effect of the provisions of the Aarhus Convention’ (para. 27).

Yesterday the High Court handed down a judgment which highlights the potentially nuanced approach which the courts will take when considering the privacy rights of minors. In Spelman v Express Newspapers [2012] EWHC 239, the Court was asked to consider the question whether an interim injunction should be granted to the seventeen year old son of Caroline Spelman, Secretary of State for DEFRA. The injunction was designed to restrain the publication of private and indeed sensitive information relating to the Spelmans’ son by Express Newspapers (“EN”). Having found that the son would have a reasonable expectation of privacy in respect of the information in question, Lindblom J went on to consider how the son’s privacy rights under Article 8 should be balanced against EN’s right to freedom of expression under Article 10. He concluded that the balance tipped in favour of protecting the son’s right to privacy. In reaching this conclusion Lindblom J took into account in particular: that the claimant was a minor who ‘faced considerable press scrutiny in a tabloid newspaper’ [para. 17]; that publication of the story by EN would ‘not of itself advance the public interest claimed for it to a material degree’, as that public interest would ‘be protected and advanced in any event’ [para. 24] and, further, that publication of this story was ‘likely to have a very significant harmful effect on the claimant’ [para. 25].

However, notably the claimant’s status as a minor was not sufficient to incline Lindblom J to allow his application for anonymity in respect of the order itself. He held that the fact that subject matter of the application and the precise nature of the relief granted would not enter the public domain was sufficient to protect the claimant’s interests and that the fundamental importance of the principle of open justice meant that the claimant should be identified as the person who sought injunctive relief against EN. Lindblom J went on to comment that this seemed ‘properly to reflect the course which the court ought now normally to take in situations such as these’ [para. 35]. See further the relevant jurisprudence referred to in the judgment including: Cream Holdings Ltd v Banerjee [2005] 1 AC 253 (Supreme Court judgment on the test to be applied under the Human Rights Act when seeking injunctive relief restraining freedom of expression), Murray v Express Newspapers plc [2009] Ch 481, (Court of Appeal judgment on the privacy rights of JK Rowling’s son) and DFT v TFD [2010] EWHC 2335 (hearings in private to prevent unlawful publication of private information).

In March of last year, I blogged about a first-tier tribunal decision which looked at the question of whether a local authority was obliged under the EIR to allow an applicant to inspect property search information free of charge – see my post on the East Riding v IC case here (see also my post on the High Court judgment in Onesearch here). This is a question which has recently been revisited by the Upper Tribunal in Kirklees Council v IC & Pali Ltd. In Kirklees, a property search company (Pali) had written to Kirklees Council asking that it be allowed to inspect those property search records held by the council which would enable it (Pali) to answer particular questions contained in the relevant property search form issued by the Law Society (the CON29R form). Pali made clear in its request that it expected to be allowed to inspect the records free of charge in accordance with r. 8(2) EIR. The council refused the request and sought to charge Pali a fee for provision of the relevant information under the Local Authorities (Charges for Property Searches) Regulations 2008. The Commissioner concluded that the council ought to have permitted the applicant to inspect the records free of charge under the EIR. The council appealed against that decision. The case was referred directly to the Upper Tribunal.

The council’s principal argument on appeal was that Pali’s request was not a valid information request at all because, as the council put it, the request was a ‘purposive’ request rather than a ‘descriptive’ request – i.e. it was not a valid request because it was delineated by reference to a particular purpose, namely enabling Pali to answer the questions in the CON29R form, rather than one which sought simply to describe the particular information in question. The Upper Tribunal rejected this argument. It held that the terms ‘purposive’ and ‘descriptive’ requests were ‘unhelpful and misleading’ in this context and that, more generally, the distinction the council was seeking to draw would risk imposing technical hurdles on applicants which ‘could risk unduly narrowing access to environmental information’. The Tribunal also rejected a secondary case advanced by the council to the effect that r. 8 operated so as to enable it to charge for locating and retrieving relevant information prior to allowing inspection of that information. It held that r. 8(2) precluded an authority from charging for allowing applicants to inspect information in situ and that a charge was only permissible if copy documents were provided to the applicant or the information was accessed other than by means of in situ inspection. The decision should shortly be available on the Tribunal website.