The question of whether public authorities can rely on exemptions which have been claimed for the first time before the Commissioner or the Information Tribunal is a notoriously controversial one (see further e.g. Home Office & Ministry of Justice v IC where the Home Office sought to argue, against existing Information Tribunal orthodoxy, that a public authority could rely on an exemption no matter how late in the process – see further my earlier post on this judgment). The issue of late reliance is however particularly acute in respect of s. 36 FOIA (exemption where disclosure would be likely to prejudice the effective conduct of public affairs). S. 36 provides for a rather unusual exemption in that, in contrast with other exemptions under FOIA, the exemption is only engaged where a relevant opinion has been reached by the ‘qualified person’. The fact that the exemption under s. 36 will only be engaged in circumstances where a particular event takes place (i.e. the relevant opinion has been reached), a question arises as to whether that event must take place prior to the request being responded to (i.e. via the refusal notice) in order for s. 36 to be engaged. This issue has recently been considered by the Tribunal in the case of Roberts v IC & DBIS (EA/2009/0035), 20 November 2009. In that case, the Tribunal held that because information could only be withheld if it was exempt at the time of the request (or more precisely at the time the request was being responded to), it followed that an opinion which was reached after the refusal notice was sent out could not constitute a valid opinion for the purposes of s. 36. The restrictive approach to s. 36 adopted in Roberts is likely to be regarded as a controversial decision and may well be appealed. In the meantime, public authorities should probably err on the side of caution and aim to ensure that, wherever possible, any s. 36 opinion is obtained prior to the release of the refusal notice. It is in any event worth noting that, in the earlier case of Student Loans Company v IC, the Tribunal held that it did not have powers under s. 58 FOIA to consider the application of s. 36 because: (a) no reliance had been placed on that section before the Commissioner and (b) the Tribunal only had powers to decide whether the Commissioner’s decision was lawful (i.e. having regard to the case which was put before the Commissioner).
Author: Anya Proops KC
DNA Database – A Controversial Behemoth
The police DNA database for England and Wales is currently the largest DNA database in the world. It has in excess of 5 million profiles, including the profiles of many individuals who have been found to be innocent of any charges made against them. The rapid development of this vast database has inevitably fuelled debates about the rise of the Surveillance ‘Big Brother’ State. Most notably, concerns have been expressed that the database unjustifiably interferes with the individual’s right to privacy, particularly having regard to the retention of records relating to people who have not been convicted of any offence (there are at least 850,000 profiles of such persons on the DNA Database). Earlier this year, these concerns resulted in a judgment by the European Court of Human Rights that the existing approach to the retention of DNA data relating to unconvicted individuals was unlawful (Marper v UK – see also my earlier post on the Marper case). Concerns have also been expressed as to the disproportionate presence of individuals from ethnic minorities on the database, particularly young black men, and as to the resulting discriminatory potential which is effectively built into the system.
Two recent important developments suggest that the controversies surrounding the database are only likely to intensify in the coming months. First, the government has opted to use the Queen’s Speech to lay before Parliament a bill which contains a number of inevitably controversial provisions relating to the database (the Crime and Security Bill). Second, a government backed commission, the Human Genetics Commission (HGC) has today issued a report entitled ‘Nothing to Hide, Nothing to Fear?’ which criticises a number of aspects of the existing database system.
The following aspects of the Bill are particularly worthy of note:
· The Bill contains provisions aimed at giving the police additional powers to take DNA samples from individuals who have been previously arrested for crimes but whose biometric has yet to be obtained. The effect of the provisions is that the police will be entitled to take biometric data from someone who may have been arrested some time ago and before the new provisions came into force (clause 2(1)). The provisions also afford the police new powers to take DNA samples from UK nationals or residents who have been convicted overseas of serious sexual and violent offences (clause 3(1)). These powers would equally apply to convictions occurring prior to the coming into force of the new provisions.
· The bill also sets out a statutory framework for the retention and destruction of biometric material (including DNA samples, DNA profiles and fingerprints) that has been taken from an individual as part of the investigation of a recordable offence (clause 14). These powers were consulted upon in the Keeping the Right People on the DNA Database paper published in May 2009. In effect, the provisions envisage a somewhat more nuanced approach to the retention of data with retention periods for the various categories of data depending on a number of factors including the age of the individual concerned, the seriousness of the offence or alleged offence, whether the individual has been convicted, and if so whether it is a first conviction. Most notably:
o the fingerprints and DNA of adults who are arrested but unconvicted will prima facie be retained for a period of 6 years
o the fingerprints and DNA of adults who are convicted will be retained indefinitely
o lesser retention periods apply to persons under the ages of 18 and 16 and, in respect of such minors the gravity of the offence will be in issue
o chief constables are however afforded a power to determine that any retention period may be extended by up to two years for reasons of national security
o all DNA samples must be destroyed six months after being taken.
· The Secretary of State will be afforded powers to make a statutory instrument prescribing the manner, timing and other procedures in respect of destroying relevant biometric material already in existence at the point the legislation comes into force. This will enable the Secretary of State to ensure that the retention and destruction regime set out in this Bill is applied to existing material (clause 19).
· The National DNA Strategy Board which already exists to oversee the operation of the database will be put on a statutory footing (clause 20).
It remains uncertain whether any of these provisions will make it onto the statute books in advance of the forthcoming general election. However, it must be said that the growth in police powers which would be afforded under the Bill does not sit particularly comfortably with the serious concerns as to the existing system identified in the report from the HGC. Those concerns include, not least, concerns about the disproportionate representation of members of ethnic minorities; the retention of data relating to unconvicted persons for any period of time and, further, the problems of function creep.
Using Special Advocates in Civil Litigation
Yesterday, the High Court handed down a controversial judgment on the use of ‘the closed material procedure’ (CMP) in civil litigation: Al-Rawi & Ors v The Security Service & Ors (judge – Silber J). The background to the judgment is that a number of individuals who had been detained at Guantanamo Bay had brought claims for damages against the defendants on the basis that they had caused or contributed to the claimants’ unlawful detention and ill-treatment by foreign governments. A preliminary issue then arose in these cases as to whether the defendants could put evidence before the court using the CMP. The CMP, in effect, allows defendants to put documents in evidence before the court whilst at the same time withholding them from the claimants. The only way in which the claimants have any say on the closed material is through the use of special advocates appointed to act on their behalf. However, the role of special advocates is heavily circumscribed, not least because they cannot convey to their clients the content of the closed material.
The CMP has formerly been used in the context of deportation appeals heard by the Special Immigration Appeals Commission (SIAC). However, the CMP has not previously been a feature of civil litigation. Instead, in the context of civil litigation, if the government was concerned that the disclosure of particular information would be contrary to the public interest, the best it could hope for was to rely on the public interest immunity (PII) procedure. The crucial difference between the PII procedure and the CMP is that the former procedure operates so as to ensure that the PII material is not put before the court at all, whereas the latter procedure allows the government to put the closed material before the judge whilst at the same time not disclosing that material to the other side. Thus, there is an inherent asymmetry present in the CMP which is not present in the PII procedure.
In a controversial judgment, Silber J decided as a preliminary issue that use of the CMP was permissible in a civil claim for damages, albeit only in exceptional cases. In reaching this conclusion, Silber J rejected arguments that the High Court had no jurisdiction to permit the use of the CMP; that use of the CMP was inconsistent with the requirements of the CPR and that it was otherwise at odds with the established PII procedure. It is highly likely that this judgment will go on appeal. 11KBW’s Karen Steyn acted on behalf of the defendants.
NEW TECHNIQUES FOR APPLYING RIPA – OUTCOME OF HOME OFFICE CONSULTATION
The Regulation of Investigatory Powers Act 2000 (RIPA) has attracted a considerable amount of negative publicity over the past couple of years. In no small part, this has been due to public outcry in response media reports of local authorities using their powers under RIPA to engage in activities such as monitoring the use of domestic wheelie bins, recording dog-fouling incidents on camera and carrying out surveillance on families suspected of trying to cheat the school catchment system (see further the discussion of the case of Paton v Poole Borough Council below). Concerns have been expressed by members of the public as well as privacy campaigners that such actions on the part of local authorities constitute abuses of their powers both because the surveillance powers of the state should not be used for trivial purposes and because there has been a failure on the part of the authority to achieve a proper balance between the rights of the state to identify civil and criminal wrongdoing and the individual’s right to have his or her privacy respected. Those concerns resulted in the Home Office commencing a consultation in April 2009 on proposals to introduce new RIPA techniques which would purportedly help ensure that RIPA would only be used when it was necessary and proportionate. Last week, the Home Office published a summary of the responses to those proposals along with an announcement. In the announcement, the view expressed by the Minister for State Security, Counter-Terrorism and Policing, David Hanson, was that the responses to the consultation had been broadly positive. He said that, subject to certain minor amendments, he would now take steps to introduce the proposals as secondary legislation. The announcement suggests that the new legislation will aim to:
-
clarify the test of necessity and proportionality so techniques will not be used for trivial purposes such as investigating dog fouling or people putting bins out a day early
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raise the rank of the authorising officer for RIPA techniques in local authorities to senior executive at a minimum of ‘Director’ level
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give elected councillors a role in overseeing the way local authorities use covert
investigatory techniques -
require constituents’ communications with MPs on constituency business to be
treated as confidential information, and therefore subject to authorisation by a
higher rank of officer -
treat covert surveillance of legal consultations as ‘intrusive’ rather than ‘directed’
surveillance, meaning that it can only be carried out by a very limited number of
public authorities, primarily the police and intelligence agencies, and only with
independent approval -
clarify how provisions currently in the Policing and Crime Bill will reduce
bureaucracy relating to RIPA in police collaborative units comprising two or
more forces
It also appears that, following a proposal by the Local Government Association, local authorities will need to appoint a single official to be responsible for ensuring that all authorising officers are of an appropriate standard. Notably, the Home Office rejected suggestions that a more radical approach should be adopted, namely removing local authorities from the scope of RIPA altogether.
Coincidentally, the Investigatory Powers Tribunal, chaired by its President, Mummery LJ, was itself hearing a complaint last week brought under s. 65 RIPA that a particular local authority had unlawfully exercised its surveillance powers under RIPA. In Paton v Poole Borough Council, which was heard on 5 and 6 November, the IPT was called upon to decide whether the Poole BC had acted unlawfully under RIPA when it conducted directed surveillance of Ms Paton and her family. The surveillance had been conducted in circumstances where the council suspected that Ms Poole may have been dishonestly trying to abuse the school catchment system by giving a false address when applying for a place for her child at a local school. It was accepted by the council before the IPT that, in fact, its suspicions about Ms Paton had proved to be unfounded. However, the council nonetheless sought to maintain the position before the IPT that the surveillance constituted a necessary, proportionate and, hence, lawful exercise of its powers under RIPA. In advancing this case, it was argued on behalf of the council that there existed no simple means of uncovering fraudulent abuses of the school catchment system that did not involve any invasion of privacy rights. The council was represented by 11KBW’s Ben Hooper.
OFCOM & THE AGGREGATION OF PUBLIC INTEREST CONSIDERATIONS: UPDATE
On 17 November 2009, the Supreme Court will hear the Information Commissioner’s appeal against the Court of Appeal’s judgment in Office of Communications v Information Commissioner [2009] EWCA Civ 90 (Ofcom). In Ofcom, the Court of Appeal held that, when multiple exceptions were engaged in respect of particular information, the public interest test provided for under regulation 12(1)(b) of the Environmental Information Regulations 2004 would operate so as to entitle the public authority to aggregate all the different public interest factors relating to all applicable exceptions in a single, compendious public interest balancing exercise. This judgment was controversial, not least because it represented a departure from the well-established approach of tailoring public interest considerations to the individual exception in issue. Notably, in a recent Information Tribunal decision, the Tribunal highlighted some of the practical difficulties posed by the adoption of the aggregate approach to the public interest test (South Gloucestershire v Information Commissioner (EA/2009/0032), §§48-52). 11KBW’s Clive Lewis and Akhlaq Choudhury will be appearing on behalf of the Commissioner in the Supreme Court.
ACCESSING LOCAL AUTHORITY INFORMATION UNDER THE AUDIT COMMISSION ACT 1998
It is often thought by members of the public that the only way to access information relating to how local authorities are spending public monies is through the application of the Freedom of Information Act 2000. However, a recent judgment of the High Court has highlighted that such information may also be accessed in certain circumstances under another much less well known enactment, namely the Audit Commission Act 1998 (ACA). In summary, section 15 ACA permits ‘any person interested’ (e.g. local council tax payers) to inspect a local authority’s accounts and documents ‘relating to’ those accounts at the time of the authority’s annual audit.
In Veolia ES Nottinghamshire Ltd v Nottinghamshire CC & Ors [2009] EWHC 2382 (Admin), an inspection request was submitted to the Nottinghamshire CC by an interested person. The documents falling within the ambit of the request included a particular waste management contract which Veolia had entered into with the Council, along with invoices which Veolia had supplied to the Council under the contract. The Council decided that it was obliged to permit inspection of these documents under s. 15 ACA. Veolia challenged that decision by way of judicial review. Evidently, in mounting that challenge, Veolia was concerned that the information contained in the documents was commercially sensitive and should not therefore be permitted to enter the public domain under s. 15. Veolia’s case before the High Court was advanced principally on the basis that inspection should not be permitted under s. 15 as the contract and the invoices did not ‘relate to’ the local authority’s accounts. This argument was firmly rejected by Cranston J. He held that the words ‘relating to’ were sufficiently flexible that they could accommodate the documents in issue.
In reaching this conclusion, Cranson J evidently had in mind that the function of s. 15 is to enable interested persons to inspect documents which reveal precisely how the local authority is spending public monies. He concluded, in effect, that such a function would be frustrated if such persons could not consider the various contracts and invoices under which the local authority made payments to third parties.
It is apparent from the judgment in Veolia, that considerations relating to commercial sensitivity and confidentiality will not be relevant to the decision as to whether documents may be inspected under s. 15. This very generous approach to accessing commercial information under the ACA is to be contrasted with the more restrictive approach adopted under FOIA and the Environmental Information Regulations 2004 (see further the specific exemptions afforded under those enactments in respect of confidential and commercial information; and see also South Gloucestershire Council v Information Commissioner (EA/2009/0032) for a recent example of how these exemptions apply in practice – see further the post on this case). Veolia’s application for permission to appeal against Cranston J’s judgment is currently being considered by the Court of Appeal.
11KBW’s Michael Supperstone QC, Tim Pitt-Payne and Peter Oldham all appeared in the case.