Author: Anya Proops KC

CCTV Pixel Panic

Posted on | by Anya Proops KC

The use of CCTV cameras by local authorities has long been a controversial subject. Civil liberties groups regard the proliferation of such cameras as an unjustified infringement of the right to privacy. Others regard the use of such cameras as a necessary and, hence, justified evil in the fight against crime and anti-social behaviour. However, recent guidelines issued by the Department for Transport (DfT) has raised altogether different questions about the legality of local authority CCTV systems. In particular, DfT published guidelines last week confirming that, with effect from 1 April 2009, Westminster council’s mobile CCTV cameras would be rendered unlawful because they lack a sufficient number of pixels to meet the new quality requirements imposed under the Traffic Management Act 2004 (TMA). The DfT has confirmed that the cameras must be switched off by midnight on 31 March in order to avoid falling foul of new TMA provisions, which come into force on 1 April. This is an untimely development for those law enforcement agencies which were hoping to use the mobile cameras as part of the security strategy to manage the G20 summit. It is understood that Westminster Council has now written to the Transport Secretary, Geoff Hoon, as a matter of urgency requesting a special dispensation so that the cameras will not have to go dark on the eve of the summit.

Articles:

https://www.guardian.co.uk/uk/2009/mar/30/cctv-london-government-transport-g20

https://news.bbc.co.uk/1/hi/england/london/7971436.stm

Parliamentary Privilege in the Spotlight

Posted on | by Anya Proops KC

It is a fundamental principle of our constitutional structures that Parliament and its members should not normally be subject to judicial scrutiny or supervision. The statutory basis of this principle is to be found in Article 9 of the Bill of Rights 1689 which states that: ‘the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament’. The breadth of the principle of Parliamentary privilege was confirmed in the case of Prebble v Television New Zealand Ltd [1995] 1 AC 321 where Lord Browne-Wilkinson held that the effect of the principle was that the courts would not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges. Yesterday Lord Oakeshott, Lib Dem Treasury Spokesman, availed himself of the protection of this important privilege when he told peers about the location of certain documents relating to Barclays’ tax arrangements. The documents in question are particularly controversial because a mere eight days ago the High Court granted Barclays injunctive relief requiring the Guardian newspaper to remove the documents from its website on grounds of their confidentiality (Barclays Bank Plc v Guardian News and Media Ltd [2009] EWHC 591 QB). The curious result of Lord Oakeshott’s comments would seem to be that the Guardian still cannot publish the documents on its website, pursuant to the order made by the High Court, but can report Lord Oakeshott’s comments by placing reliance on the doctrine of qualified privilege.

The decision of the High Court to grant Barclays injunctive relief in respect of the information published on the Guardian’s website is itself likely to be of considerable interest to information lawyers. This is because in reaching that decision the judge, Blake J, accepted that the documents had retained the quality of confidentiality even though there was evidence before the Court that, quite apart from the Guardian website, the documents had already been published on at least one other internet site which would not itself be subject to an application for injunctive relief and, further, there had already been a degree of ‘internet chatter’ about the injunction process. That the court was prepared to accept that the documents retained an element of confidentiality in these circumstances highlights the fact that the judiciary will not automatically accept that publication of information on the internet necessarily equates to publication to all the world.

High Court judgment:

https://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/591.html&query=title+(+Barclays+)+and+title+(+v+)+and+title+(+guardian+)&method=boolean

High Court judgments on Parliamentary privilege (appeal from Information Tribunal)

Office of Government Commerce v ICO & Ors – https://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2008/737.html&query=title+(+Office+)+and+title+(+government+)+and+title+(+commerce+)&method=boolean

Corporate Office of the House of Commons v ICO & Ors – https://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2008/1084.html&query=title+(+Corporate+)+and+title+(+officer+)&method=boolean

Excerpt from Hansard:

https://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90326-0003.htm#09032630000629

Guardian article:

https://www.guardian.co.uk/business/2009/mar/27/barclays-tax-documents-parliament

 

 

Rowntree Report on Database State

Posted on | by Anya Proops KC

The Joseph Rowntree Reform Trust has today published its report ‘The Database State’. The report purports to amount to the most comprehensive map of central government databases yet created. In total 46 databases across the major government departments were considered in the report, including, for example, the national DNA database, the national pupil database, the NHS detailed care record system and the automatic number-plate recognition system. In summary, the report concluded that:

  • a quarter of the 46 databases reviewed were ‘almost certainly illegal under human rights or data protection law; that they should be scrapped or substantially redesigned’ (including, for example, the Contactpoint index of all children in England and the national DNA database – on the latter database, see further the January 2009 post on the Marper case);
  • ‘more than half have significant problems with privacy or effectiveness and could fall foul of a legal challenge’ (including, for example, the NHS Summary Care Record and the National Pupil Database);
  • fewer than 15% were ‘effective, proportionate and necessary with a proper legal basis for any privacy instrusions’;
  • Britain was generally out of line with other developed countries as a result of its comparably greater tendancy to centralise and share records on sensitive matters like healthcare and social services; that ‘the benefits claimed for data sharing are often illusory’.

Along with the House of Lords Report on the Surveillance Society published in February 2009 (see further the February 2009 post on the Lords Report), this report is likely to increase pressure on the Government to reexamine a raft of policies on data collection, management and storage.

https://www.jrrt.org.uk/uploads/Database%20State.pdf

Executive Summary:

https://www.jrrt.org.uk/uploads/Database%20State%20-%20Executive%20Summary.pdf

Court of Appeal Gives Judgment in Ofcom Case

Posted on | by Anya Proops KC

On 20 February 2009, judgment was handed down in the case of Office of Communications v Information Commissioner [2009] EWCA Civ 90. This is the first case under the Environmental Information Regulations 2004 (EIR) to be heard by the Court of Appeal. The Information Commissioner was represented by Akhlaq Choudhury of 11KBW. This is an important judgment affecting the general approach to the public interest test in determining whether information under the EIR should be disclosed. The judgment is also relevant to the application of the public interest test under FOIA. The case concerned a request made to Ofcom (the regulatory body for radio communications) for the disclosure of information as to the location of mobile phone masts, and in particular for that information to be disclosed in a format that would enable the requester to manipulate the underlying data using data-handling applications. Ofcom resisted disclosure on the basis that it would prejudice (a) public safety (by identifying mast locations to criminals) and (b) the intellectual property rights of the Mobile Network Operators (such rights being the database rights in the information). The Information Tribunal considered that there was a strong public interest in disclosure given, amongst other matters, the benefit to epidemiological research as to the effects of mobile phone mast radiation on the health of the public. The Tribunal considered that it was entitled to take that public interest into account notwithstanding the fact that such research would be likely to involve an infringement of database rights. In addressing the public interest balance, the Tribunal took the then well-established course of separately weighing the public interest in maintaining each of the exceptions relied upon against the public interest in disclosure. It did not aggregate all the public interest factors against disclosure. The Tribunal found that the public interest balance favoured disclosure.

On the general point of principle, namely the approach to be taken in weighing the public interest in maintaining the exemption against the public interest in disclosure, the Court of Appeal disagreed with the Tribunal’s approach. The Court held that the public interest in maintaining each exemption should be aggregated and weighed against the public interest in disclosure. An exemption-by-exemption approach was still permissible provided that the matter is also looked at in the round at the end of the process by considering whether the aggregate public interest in maintaining the applicable exemptions outweighs the public interest in disclosure. However, the Court upheld the Tribunal’s’ approach in taking into account a factor as supporting the public interest in disclosure even where that factor involves a breach of third party intellectual property rights. The Court held that the legislative scheme is such that it is permissible to take such factors into account as an aspect of the public interest in disclosure. The matter was remitted to the Tribunal to reconsider the public interest balance in accordance with the approach laid down by the Court.

Government Vetoes Disclosure of Iraq Information

Posted on | by Anya Proops KC

Jack Straw has announced that he is exercising powers under section 53 FOIA to prevent minutes of Cabinet meetings held in the period leading up to the Iraq war from being disclosed under FOIA. The announcement, which was made to Parliament on 24 February 2009, follows in the wake of the Information Tribunal’s decision in January 2009 that the minutes should be disclosed. It is understood that this is the first time the Government has used the powers of veto under section 53. Jonathan Swift of 11 KBW acted on behalf of the Cabinet Office before the Tribunal. 11 KBW’s Timothy Pitt Payne acted for the Commissioner.

Section 53(2) FOIA:

‘A decision notice or enforcement notice to which this section applies shall cease to have effect if, not later than the twentieth working day following the effective date, the accountable person in relation to that authority gives the Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure falling within subsection (1)(b)’

 Tribunal decision:

https://www.informationtribunal.gov.uk/DBFiles/Decision/i288/Cabinet%20Office%20v%20IC%20&%20C%20Lamb%20(EA-2008-0024,29)%20-%20Decision%2027-01-09.pdf

Media Reports:

https://www.guardian.co.uk/politics/2009/feb/24/iraq-freedom-of-information

https://www.google.com/search?sourceid=navclient&ie=UTF-8&rlz=1T4GGLD_enGB311GB311&q=bbc+straw+cabinet

House of Lords Judgment in Sugar v BBC

Posted on | by Anya Proops KC

In Sugar v BBC  [2009] UKHL 9, the House of Lords has delivered an important judgment on the application of FOIA to so called ‘hybrid authorities’. The case concerned a request which was made by Mr Sugar in January 2005 for disclosure of a report which was held by the BBC and which concerned the BBC’s coverage of the Middle East. The BBC refused to release the report on the grounds that: (a) it was only subject to a duty to disclose information under section 1 FOIA to the extent that it was a ‘public authority’ for the purposes of that section; (b) part IV of schedule 1 to FOIA provides that the BBC is a ‘public authority’ only ‘in respect of information held for purposes other than those of journalism art or literature’; (c) the report was held for the purposes of journalism and, hence, the section 1 duty was not triggered in respect of the report. The Commissioner agreed with the BBC’s analysis. He went on to conclude that, because the BBC could not be treated a ‘public authority’ for the purposes of Mr Sugar’s request, he had no powers under section 50 FOIA to issue  a decision notice in respect of Mr Sugar’s complaint. On appeal by Mr Sugar to the Information Tribunal, the BBC and the Commissioner argued that the Tribunal had no jurisdiction to hear the appeal as no decision notice had been issued under section 50. The Information Tribunal allowed Mr Sugar’s appeal against the Commissioner’s decision. It held that the Commissioner’s decision was a decision notice under section 50(3); that the BBC was a public authority for the purposes of section 1 FOIA and that the report was not held for the purposes of journalism. The BBC sought a judicial review of the Tribunal’s decision. That claim was upheld at first instance and on appeal to the Court of Appeal. Mr Sugar appealed to the House of Lords.

In a majority judgment (Lord Hoffman and Lady Hale dissenting), the House of Lords held that the Tribunal’s decision was sound in law. Importantly, the House of Lords found that the Commissioner had erred in concluding that Mr Sugar had not made a request under section 1 FOIA merely because the nature of the requested information. It found that, when dealing with ‘hybrid authorities’ such as the BBC (i.e. authorities which are only public authorities under FOIA for certain purposes), it would be impractical for the Commissioner to decide whether he had jurisdiction to consider a complaint simply by referring to the nature of the requested information. The correct approach would be for the Commissioner to treat hybrid authorities as always being ‘public authorities’ for the purposes of section 1, irrespective of the nature of the requested information. On this approach, the Commissioner would have jurisdiction to decide a complaint brought by the applicant, albeit that he would have to have regard to the provisions of schedule 1 as and when he was deciding whether the authority erred in refusing to disclose the requested information.  Notably, Lord Phillips commented on an obiter basis that, where information not falling within the scope of FOIA was requested by an applicant, a hybrid authority was lawfully entitled under FOIA to say to the applicant that it did not hold the requested information, even if in physical terms it did hold the requested information. Lord Phillips opined that this result was permitted by section 7 FOIA (para. 33).

In their dissenting judgments Lord Hoffmann and Lady Hale took a very different view of the matter. They concluded that schedule 1 FOIA defined the circumstances in which a body would be a ‘public authority’ for the purposes of section 1 and, in the case of the BBC, those circumstances did not include where the information was held for the purposes of journalism, art or literature; that the information requested by Mr Sugar was held for the purposes of journalism; that the BBC was accordingly not a ‘public authority’ under FOIA for the purposes of the request made by Mr Sugar; and, hence, that the Commissioner had been right to conclude that he had no jurisdiction in respect of Mr Sugar’s complaint. The Commissioner, who supported Mr Sugar’s case before the High Court and the Court of Appeal, was not a party to the appeal to the House Lords. 11KBW’s Ben Hooper represented the Commissioner in the High Court and the Court of Appeal.

The judgment:

https://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/2009/9.html&query=title+(+sugar+)+and+title+(+v+)+and+title+(+british+)+and+title+(+broadcasting+)&method=boolean