Bonjour, et maintenant pour un post de Panopticon dans le style de Miles Kington et ‘Franglais’.

Recallez-vous le judgment de la Cour de justice de l’Union européenne dans Google Spain (ici)? Tres bien. Maintenant, il y a une announcement from CNIL (le ICO de France), informing Google that le ‘right to be forgotten’ applies aux search results decouvert en google.fr et google.com, pas seulement google.fr (voila, ici). Ce n’est pas une announcemente populaire avec Google, mais ce n’est pas une surprise. Dans November 2014 le Article 29 Working Party adopted ‘Guidelines on the Implementation’ of Google Spain, which said the same thing, as an aspect of the principle of effective protection of data subjects’ rights. C’est believed que la France est le premier data protection authority to expressly and publicly take this line with Google. Les developments dans le future sont tres interessant.

(That’s enough of that. Another issue which has caused some interest is the approach Google are taking whereby any search result on google.co.uk for an individual name comes back with the rider at the foot that some search results may have been omitted as a result of Google Spain, regardless of whether they have been or not. This raises some interesting possible questions in defamation (could it be defamatory to imply that an individual has exercised their Google Spain rights?), privacy (does the implication itself invade private life and reputation?) and DPA compliance (is the approach justified because only having the notice where the right has been exercised is tantamount to undermining the exercise of the right, and would no notice at all be too secretive?). That will also be interesting to see if anyone follows it up with Google, the ICO and then the courts. For those of you want to see a bit more analysis, and an example of a complaint, listen carefully, I shall say zis only once: Jon Baines’ blog discusses it ici. Eh bien.)

Ce n’est pas ‘goodbye’, mais seulement ‘au revoir’.

Christophe Chevalier

Almost a month ago, I blogged about a decision of the High Court in Ittihadieh v 5-11 Cheyne Gardens RTM Co Ltd & 6 others [2015] EWHC 1491 (QB), noting that the judgment was not yet available. Since then my postbag has been inundated with letters (sample from a Mrs Trellis of North Wales, “Dear Robin Hopkins, If data protection is so important, why does the postman keep delivering my letters next door?”) haranguing me for further information. Following a suitable period to allow excitement to build, I am happy to oblige. It may now be seen here: Ittihadieh v Cheyne Gdns APPROVED judgment 05 05 15.

It is not necessary to repeat the commentary already provided in the previous post. HHJ Seymour QC did indeed construe the SAR as being directed only to the company – based on the wording of it and the payment of only one £10 fee – but he also held that directors would not have been data controllers themselves, applying Southern Pacific Personal Loans [2013] EWHC 2485 (Admin). The relevance of the domestic purposes exemption in section 36 came about because it was suggested some of the company directors may have expressed views about the Claimant amongst themselves in a personal capacity. This, thought the judge, would fall within section 36. In any event, he would have exercised his general and untrammelled discretion (applying Durant) under section 7(9) not to make any order requiring them to search personal email accounts.

Finally, at [50], comes a reminder that even post Vidal-Hall not every potential breach will sound in damages, as the court noted the claim for distress and expressed severe doubts about it in the following terms:

“It is not necessary or appropriate for me to give lengthy consideration to the prospect that Mr. Ittihadieh has suffered distress, but the material before me does indicate that Mr. Ittihadieh is a person who is accustomed to defending his corner, to put it colloquially, if necessary, or perhaps even if not necessary, by resort to legal proceedings, or threat of legal proceedings, and he certainly seems to engage in the expression of colourful phrases in the English language which are not used in polite society. That use of language suggests that he, himself, may not be a particularly sensitive flower.”

That is not to say that the “sensitive flower” test is one which should be applied generally (one struggles to see Max Mosley, to pick a sadomasochistic example at random, meeting the test), but it is an expression of judicial realism.

UPDATE: As some readers will know, Mr Ittihadieh has been granted permission to appeal to the Court of Appeal against the judgment. The issues in the appeal are to be wide-ranging and it will be a useful and welcome opportunity for the Court of Appeal to grapple with the practical working of the DPA in a way which has not really been seen since Durant. In the meantime, the High Court judgment has a question mark over it.

Christopher Knight

Does anyone remember compact discs? Isn’t everything downloadable from iTunes, or Napster, or whatever it is that young people are using these days? Well, to the joy of crotchety old people everywhere, the court system still uses CDs. Indeed, the Upper Tribunal records hearings before it on CD, and when a litigant wants access to those recordings the Upper Tribunal may take the view that it is interests of justice to disclose it to them. (We are not yet at the thrilling stage of having Upper Tribunal hearings filmed and made available online, as in the Supreme Court. One cannot imagine why.)

So it was in the case of Mr Edem – he of ‘is a name personal data?’ fame – who did not approve of being given his recordings but under terms which did not permit him to more widely disclose them. Instead, he sought them under FOIA and was met with the fairly predictable reliance by the Ministry of Justice on the absolute exemption for court records in section 32(1)(c). Aha, said Mr Edem, but a CD is not a “document” within the meaning of section 32(1).

This may come as something of a surprise argument to anyone looking at the broad definition of information in section 84, the approach of the Court of Appeal in IPSA (see here), the Upper Tribunal decision in Peninsula Business Services v ICO & Ministry of Justice [2014] UKUT 284 (AAC), and indeed common sense. It is less of a surprise to see the argument fail in Edem v ICO & Ministry of Justice [2015] UKUT 210 (AAC).

Judge Wikeley had little difficulty in accepting that the purpose of section 32(1), to enable the courts to control access to their own files and records, indicates a broader interpretation of document than merely paper files, and the effect of the distinction that an audio record would not be caught but a transcript would be was patently not intended to be the outcome. In any event, a document is simply something which contains information. It does not determine the form or mode of container. Various cases from different contexts (including of course the Kennedy litigation under FOIA) gave support for the conclusion that “document” naturally includes an audio recording which contains relevant information. In so concluding, Judge Wikeley reached precisely the same conclusion as Judge Williams had done in Peninsula. The Upper Tribunal also dismissed the argument that simply because the use of “document” in section 25 (on national security certificates) must mean a written document because of the specific context of a certificate did not require the same interpretation generally: a written document is a document but the reverse is not true. The strike out of the appeal was upheld.

Rupert Paines appeared for the ICO; Rachel Kamm was for the MoJ.

Christopher Knight

The Court of Appeal has today handed down judgment in Dransfield v ICO & Devon County Council; Craven v ICO & Department for Energy and Climate Change [2015] EWCA Civ 454 (Dransfield Craven FINAL JUDGMENT 14 5 15. As people will recall, Dransfield is concerned only with section 14 FOIA, and Craven is concerned with whether the same approach should be adopted under the differently worded regulation 12(4)(b) EIR. For those desperately hoping it would not require completely relearning everything just as everyone was getting used to the Upper Tribunal decisions (on which see Robin’s lengthy screed here), a sigh of relief can be exhaled. Arden LJ gives the only substantive judgment (with which Gloster and Macur LJJ agree), which she helpfully summarises at [5]-[7] and which I set out in full so people with better things to do can stop reading:

“5. The appeals raise different and difficult questions. In my judgment, for the detailed reasons given below, this court should dismiss each appeal.  

6. In Mr Dransfield’s case, the request, taken on its own, is a precise and politely-worded request. There is nothing on the face of this request which could be termed “vexatious”. Nonetheless the UT held that it was vexatious because of the past history of dealings between him and the authority. So the principal issue on his appeal is whether a request can treated as vexatious if it is not itself vexatious but previous requests have been. The FTT thought that the line had to be drawn at previous requests which “infected” the request under consideration (“the current request”). The UT rejected that test and held that there was no line to be drawn. Mr Dransfield seeks to uphold the test applied by the FTT. I do not accept this submission because it involves writing words into FOIA which the court may not do. The UT went on to formulate and apply guidance as to the meaning of “vexatious” which he has not challenged.

7. In Mrs Craven’s case, the principal question is whether the tests under section 14 FOIA and regulation 12(4)(b) have the same meaning (“the two-tests-one-meaning issue”). I conclude that to all intents and purposes they do. The next questions are whether the IC could raise an objection under regulation 12(4)(b) when the authority had not done so, whether section 14 (2) affects the meaning of section 14(1) and whether the costs of compliance could be taken into account under both tests (“the costs of compliance issue”). I agree with the UT on those points too. I would therefore dismiss Mrs Craven’s appeal also.”

And so orthodoxy reigns.

As to the detail of the judgment, although it is relatively long (28 pages), when one strips out the annexed statutory provisions, the factual background and the submissions of the parties, the actual analysis only runs from [61]-[73] on Mr Dransfield’s appeal and [74]-[88] on Mrs Craven’s.

In relation to Dransfield, the issue was the degree to which a prior course of conduct of the requestor could infect a request which in and of itself was inoffensive. Arden LJ agreed that no comprehensive or exhaustive definition should be adopted, but considered that the focus should be “on an objective standard and that the starting point is that vexatiousness primarily involves making a request which has no reasonable foundation, that is, no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public“. The test should be a high one to meet, but all relevant circumstances should be considered. Where a motive can be established, that may be evidence of vexatiousness, although if the request is aimed at disclosure of important information which ought to be publicly available then even a “vengeful” request may not meet the test: at [68]. Motive was relevant here; section 14 is an exception to the ordinary approach that the reason why a right is exercised is irrelevant: at [66]. The FTT’s approach had been wrong; there were no bright lines and attempting them was illogical. Evidence of prior requests was capable of throwing light on the current request and the motivation behind it: at [69]. Had it been necessary to do so, the Court would have accepted that the Upper Tribunal had made an unchallengeable finding that the belligerent and unreasonable tone linked to the present request: at [71]. Because, as stressed at [6], there was no challenge to the Upper Tribunal’s general guidance, the Court of Appeal cast no doubt upon it and it will continue to be a useful source of assistance (with the caveat that protection of public resources cannot lower the high standard of vexatiousness required: at [72]).

In relation to Craven, Arden LJ dealt with a slightly wider range of issues. She made further comments on section 14 itself, noting that vexatiousness could not mean a requirement for persistent requests, still less for persistent requests to a range of different authorities, which would not be readily discoverable: at [77]. Section 14(2), on repeat requests, is a separate power which does not assist in interpreting section 14(1): at [82]. A key question in Craven was whether there should be any difference between the two regimes. Arden LJ held that there was not, particularly because section 14 was primarily an objective analysis, which accorded with the natural meaning of “unreasonable“. The word “manifestly” simply means that it must be clearly shown, and does not require detailed investigation by the authority into things it does not know: at [78]. There was no suggestion that the answer would have been any different under section 14: at [79] (although of course CJEU case law may develop in a different direction). One notable aspect of Craven is that it was a single request which was particularly burdensome and costly to deal with, but there was no section 12 equivalent in the EIR, and on this Arden LJ agreed with the Upper Tribunal’s approach: cost of compliance can be taken into account, although those costs would have to be balanced against the benefits of disclosure: at [83]. An unconcluded view was expressed that a higher hurdle might apply to rely on the costs burden under the EIR than FOIA, but no decision was reached: at [84]. The Court was satisfied that a costs burden could indeed apply to section 14: at [85].

We are, as a result, more or less where we were before the Court of Appeal’s judgment. Indeed all it has probably added is the weight of authority in some places and a bit of confusion (mostly around section 14 being objective, which is unhelpfully expressed but not, it appears, substantively different) in others. People can sensibly continue to guide themselves by the much more detailed guidance of the Upper Tribunal, subject to the caveats noted here. All the important clarifications made by the Upper Tribunal survive, and one suspects very limited changes will be required to the ICO’s Guidance. Repeat requestors should beware, particularly if they are unreasonable ones, and those making single but large requests should too.

The ICO was represented in both appeals by Tom Cross; Devon CC by Rachel Kamm and DECC by James Cornwell.

Christopher Knight

On a day when the country goes to the polls (or, if you a UKIP supporter, to the Poles), it is nice to be able remind people of the more important things in life than mere democratic-right exercising. The chief of these is, surely, developments under the Data Protection Act 1998. Happily, Panopticon can assist, with a quick note on an ex tempore judgment of HHJ Seymour QC in Ittihadieh v 5-11 Cheyne Gardens RTM Co Ltd & 6 others (QBD, 5 May 2015). There is no transcript yet available, but a headnote is now reported on Lawtel, and this summary is taken from that.

Unfortunately, without the full reasoning, one does not get the sense of what looks likely to have been a more involved argument than the bare findings relate. The case concerned an SAR made to a company, which the Claimant asserted had been an SAR to both the company and the six individual directors of that company, all of whom were data controllers. Only the company had responded, with 400 pages of documents. One might have thought the argument that directors were also data controllers would face significant difficulties in the light of Southern Pacific Personal Loans [2013] EWHC 2485 (Admin) (see here). However, Judge Seymour QC appears to have resolved the matter on the facts: the Claimant’s statements had been that he believed only the company was the data controller, he had only paid one £10 fee and the proper construction of the SAR was that it was only made to the company. The claims were accordingly struck out against the individuals.

However, even had they not been, the Judge indicated that the individuals would most likely have been able to rely upon the domestic purposes exemption in section 36 DPA, and that he would have refused relief in his discretion to require them to search their personal email accounts in order to prove the application of section 36. That is quite an interesting little comment on the extent of section 36, and its interaction with ‘personal’ emails, and it will be useful to see the full reasoning in due course.

The case also contained a reminder that just because someone pleads section 13, even after Vidal-Hall, it is no guarantee of damages. The Judge considered that there was no indication of any identifiable class of damage, and the Claimant had not bothered to try and quantify his claim. As a result, it was difficult to contemplate that he would be able to demonstrate having suffered damage or distress. The company itself had adequately complied with its obligations (although the headnote does not explain what adequate compliance consists of, or how it fits with the language of section 7) and no further order was required. The section 13 claim was transferred to the County Court.

No pretence that Ittihadieh is going to blow your mind over your cornflakes (other breakfast comestibles are available), but there are a couple of little nuggets of interest and it will be worth keeping an eye out for the full transcript as and when it hits the shelves. We DP lawyers are not yet so overwhelmed by jurisprudence that we can afford to look a section 7(9) judgment in the mouth. And with that allusion to Ancient Greece, it falls only to this blog to remind you all of your civic duty to grasp what the Prime Minister so unnervingly insists on referring to as the “stubby pencil” and vote.

Robin Hopkins (who he?) appeared for the seven defendants.

Christopher Knight

It has been said in the recent past that FOIA is sexy. We at 11KBW know all too well how difficult it can be to maintain a constant level of supreme attractiveness. Like all sexy beasts, even FOIA can have a day on which even its own mother would struggle would struggle to describe it as worthy of a second glance. The decision of the Court of Appeal in The Independent Parliamentary Standards Authority v ICO & Leapman [2015] EWCA Civ 388 might be thought to be one of FOIA’s off-days.

For those avid readers who remember my post on the Upper Tribunal decision (here for those hard of sleeping), the issues will be vividly recalled. For everyone else, a short recitation may be useful.

Section 1 FOIA gives us a right to request information from listed public authorities, but what does “information” mean? Information is defined by section 84 of FOIA (“‘information’ (subject to sections 51(8) and 75(2)) means information recorded in any form”). This somewhat opaque definition has generally been treated as meaning that a request is for information. It is not for copies of documents. If the public authority wants to type out the document in a different format, they can, so long as the information contained within that document is provided.

Mr Leapman had made a request to IPSA for receipts and invoices provided by particular MPs in support of their expenses claims. IPSA provided him with transcribed versions of those receipts and invoices. Mr Leapman was not satisfied; he wanted the originals. The ICO agreed, as did the FTT and the UT on appeal. IPSA appealed to the Court of Appeal. Mr Leapman, formerly of the Daily Telegraph, did not participate in the Court of Appeal, doubtless being otherwise engaged in his detention at Her Majesty’s pleasure for offences of rape and downloading child abuse images.

Richards LJ gave the only judgment and it is fair to say that while it is of practical importance, the issue does not stir the blood. Nonetheless, the Court remained awake long enough to dismiss the appeal on all grounds. On the main issue, Richards LJ agreed with the ICO. Information was to be construed broadly and there would be cases where it is necessary in practice to disclose the record itself in order to communicate the entirety of the information contained in it: at [36]. There was no collapse in the distinction between the record and the information contained within it. The request had not been for copies as opposed to the information, but rather for all the recorded information contained on the receipts/invoices. Without the copies themselves, there was an inevitable shortfall in the information provided: at [39]. Counsel for ISPA conceded that some presentational elements may reveal recorded information, and that, Richards LJ held, indicated that there was no clear line between presentational elements and recorded information, even if it was sometimes difficult to spot where the line was: at [43]. If something is on the face of the document it is more readily about the information itself, rather than the form of the record (whereas the weave of the paper would go only to the record): at [42]. What is important is that the material sought is informative in the sense that tells you something, which may be visual or linguistic: at [44]. The fact that such information may go to an assessment of genuineness is a factor (but not the only factor) in assessing whether it is relevantly informative, without infringing the motive-blind approach of FOIA: at [45].

IPSA also managed to achieve the seemingly challenging feat of advancing a ground even less enthralling than the meaning of information, namely the scope of the section 11 duty to communicate information by reasonably practicable means. Here Richards LJ indulged IPSA in dealing in full with an argument which failed at the first hurdle. Section 11 is not an aspect of the section 1 obligation on public authorities; it cannot cut down the twin duties in section 1 to confirm or deny, and to release subject to exemptions. Section 11 poses a separate, additional, duty where a preference as to the means of communication is specified: at [52]-[53]. Although unnecessary to do so, Richards LJ gave the tentative view that in the light of the informal nature of requests they should not be  interpreted like contracts (something of a relief to all one would imagine), and their interpretation was a question of fact, or at least a mixed question of fact and law: at [58]. The only point on which IPSA made any ground was one of total irrelevance, namely that had the analysis got to section 11(2), the wording of “in all the circumstances” was appropriately broad enough to encompass the cost consequences of future compliance, rather than limited to the consequences of responding  to the specific request.

So, three appeals later, we end at exactly the point we started; namely that the ICO’s DN was a model of sensible reasoning and common sense. Information includes visual aspects to a document which may be informative, even if they cannot be readily transcribed by a reluctant public authority. That does not mean FOIA is now a route of documentary disclosure, any more than the DPA is. But it does call for a holistic approach to the information in issue. It requires dealing with substance and appearance, taking the information as a whole and examining it carefully. Hang on… Maybe it is a little bit sexy after all.

Robin Hopkins appeared for the ICO.

Christopher Knight