Author: Christopher Knight

Stop Press: FOIA Veto Quashed

Posted on | by Christopher Knight

The Court of Appeal has today handed down a unanimous judgment in R (Evans) v HM Attorney General [2014] EWCA Civ 254 overturning the Divisional Court and quashing the veto issued by the Attorney General. The veto was quashed both because the AG did not have reasonable grounds to issue it in the light of the Upper Tribunal judgment, and because it was incompatible with EU law to veto disclosure of information under the EIR.

A fuller summary and discussion will follow in due course, but the first JR of a section 53 veto has been successful on appeal. The Court of Appeal has granted permission to appeal to the Supreme Court.

Jonathan Swift QC and Julian Milford appeared for the AG; Timothy Pitt-Payne QC appeared for the ICO.

Now with added link to judgment: here.

2014: The Year of the Veto?

Posted on | by Christopher Knight

After a very slow start to the use of the veto under section 53 FOIA, the Coalition Government has rather picked up speed on its use following a flurry in 2012. In one year there were vetoes for the NHS Transitional Risk Register, Iraq war Cabinet minutes, and of course, the correspondence of the Prince of Wales. The last of these is the subject of the first judicial review of a veto decision.

On 30 January 2014 the Secretary of State for Transport announced that he was vetoing the order of the Information Commissioner in decision notice FER0467548 that the Cabinet Office (to whom the request was made) disclose the Project Assessment Review (“PAR”) report concerning High Speed Two (“HS2”), the project for a high-speed rail link between London, Birmingham, the East Midlands, Sheffield, Leeds and Manchester.

In accordance with the legislation, the Secretary of State has published an eleven page Statement of Reasons. They are detailed and specific, and will not be set out in this post. Readers who are interested can see them here. The Secretary of State doubted whether the PAR was environmental information at all, but exercised the veto under both FOIA and the EIR. The ability to do the latter is of course an aspect of the forthcoming appeal in R (Evans) v HM Attorney General (on which see Robin’s analysis here, and my own comment at (2013) 38 LQR 130). The Secretary of State considered that the balance of the public interest favoured non-disclosure. He then gave three reasons for his exceptional use of the veto power: “(1) The exceptional importance of the HS2 project; (2) The extremely strong public interest in ensuring that public expenditure for HS2 is properly and robustly overseen and controlled; (3) The short timeframe between the production of the PAR report and the request for information, and the timing of the request at this particular stage of policy development within the HS2 project.”

The background to the veto decision is short but messy. It is unusual for the veto to be used before the Tribunal have considered the Government’s arguments. In the HS2 case, the Cabinet Office withdrew its appeal against the decision notice the day before the hearing, when the Daily Mail published a leaked letter from the Secretary of State and the Minister for Cabinet Office to the Prime Minister referring to negative legal advice the Department had received. That letter suggested the early use of the veto instead, and that is indeed what has occurred.

It will be interesting to see whether, having acquired a taste for it, 2014 proves to be as profitable as 2012 was for veto fans.

11KBW’s Julian Milford was acting for the Secretary of State & the Cabinet Office; Robin Hopkins was acting for the ICO.

Christopher Knight

Freedom of Information: But What is Information? The Upper Tribunal Opines

Posted on | by Christopher Knight

We all know that section 1 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.

The question had to be confronted squarely by the Upper Tribunal in Independent Parliamentary Standards Authority v IC & Leapman [2014] UKUT 33 (AAC) (IPSA v IC_UT decision_Jan 2014). 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. On appeal, so did the First-tier Tribunal (on which see Tom Ogg’s blog here). IPSA appealed to the Upper Tribunal.

Judge Williams dismissed the appeal. He accepted that a receipt will typically have “visual content to be seen, rather than read, but which may also require to be understood for the recipient to have appreciated the whole of the experience” (at [22]). (One leaves aside the suggestion that reading a receipt can be so heady as to warrant the term ‘experience’.) He set out the reasoning of the DN in detail and agreed with it. He relied on the example of trademarks, noting that “I cannot see how full information about a receipt or invoice that contains trademarks can be conveyed if the trademark material is not reproduced in the trademarked form so confirming that unique identity” (at [26]). Judge Williams declined to accept the suggestion that no information is conveyed by location of markings or handwriting: at [27]. In short, there was no error of law in refusing to accept the blanket submission of IPSA that nothing but the words mattered.

There was then a secondary issue concerning section 11(2), and whether it was reasonably practicable for IPSA to provide the original receipts. This too had been rejected by the FTT, and Judge Williams took the same view. In his view, section 11 was request specific, seeing as it directly cross-referred to the subsequent provisions which were also request specific. There was no basis for a “general limit on the duty” to comply with section 1: at [40]. IPSA was not entitled to any special status: at [42].

The Upper Tribunal’s judgment is perhaps counter-intuitive at first sight, but on analysis becomes difficult to dispute. It must be the case that some documents reveal recorded information simply by the way in which they are laid out, or the surrounding markings on the page. What if an MP has submitted faked receipts which IPSA have overlooked, but which on sight of the originals show the relevant logo or trademark to be slightly wrong thus revealing the deception? What if it is said that a document was purely private, but the original reveals it to have been printed on Council notepaper? That is surely what FOIA is for. However, the matter will be case-specific. This is not a disclosure exercise by the back-door – there will need to actually be something to see from the originals.

11KBW’s Robin Hopkins (who else?) appeared for the ICO.

Christopher Knight

Just When You Thought it was Safe to Go Back into the Water – The CJEU Gives Judgment in Fish Legal

Posted on | by Christopher Knight

Earlier this year, a video went viral. It was a clip of the Ellen DeGeneres talk show in the US, on which she announced – after years of campaigning – that there would be a Finding Nemo 2. The world rejoiced. In an entirely dissimilar way, there is likely to be a strong clamour for the CJEU to produce Fish Legal 2 (although it is likely to be less fun, let alone involve a shark named Bruce). One Fish Legal judgment will not be enough, not for those pesky pescatarians who like judgments to provide answers.

If Julie Andrews has taught us anything, it is that the beginning is a very good place to start. The history of the Fish Legal case, and the AG’s Opinion in it, are covered in my Socratic post here. In short form, the question for the CJEU was whether or not privatised water companies are public authorities such that they owe obligations under the Environmental Information Regulations 2004 (implementing Directive 2003/4).

In its judgment of 19 December 2013, the Grand Chamber of the Court in Case C-279/12 Fish Legal v Information Commissioner opined on this topic. It readily dismissed the suggestions of the case being hypothetical and resolved to deal with the referred questions. At [48] it held that “only entities which, by virtue of a legal basis specifically defined in the national legislation which is applicable to them, are empowered to perform public administrative functions are capable of falling within the category of public authorities that is referred to in Article 2(2)(b) of Directive 2003/4.” It recognised that that did not answer what “public administrative functions” were. In classic CJEU style it set out the tests in the Directive and the facts:

“51        Entities which, organically, are administrative authorities, namely those which form part of the public administration or the executive of the State at whatever level, are public authorities for the purposes of Article 2(2)(a) of Directive 2003/4. This first category includes all legal persons governed by public law which have been set up by the State and which it alone can decide to dissolve.

52      The second category of public authorities, defined in Article 2(2)(b) of Directive 2003/4, concerns administrative authorities defined in functional terms, namely entities, be they legal persons governed by public law or by private law, which are entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.

53      In the present instance, it is not in dispute that the water companies concerned are entrusted, under the applicable national law, in particular the WIA 1991, with services of public interest, namely the maintenance and development of water and sewerage infrastructure as well as water supply and sewage treatment, activities in relation to which, as the European Commission has observed, a number of environmental directives relating to water protection must indeed be complied with.

54      It is also clear from the information provided by the referring tribunal that, in order to perform those functions and provide those services, the water companies concerned have certain powers under the applicable national law, such as the power of compulsory purchase, the power to make byelaws relating to waterways and land in their ownership, the power to discharge water in certain circumstances, including into private watercourses, the right to impose temporary hosepipe bans and the power to decide, in relation to certain customers and subject to strict conditions, to cut off the supply of water.”

It then declined to provide any sort of answer, leaving it to the Upper Tribunal to determine on the case’s return from the stratosphere: at [55]. The key question, at [56], is whether the body is vested under national law with “special powers“. This will not be an easy test to apply. Spiderman and Superman obviously have special powers. Batman does not; he just has a lot of money. Which comic-book hero do privatised industries more closely resemble, and is there a difference of principle between them? Answer came there none.

The second stage of the analysis was whether, because water companies are regulated by Ofwat and the Secretary of State, they are under the control of bodies which are subject to the EIR and so themselves subject. Is an ‘emanation of the State’ in EU law terms (as water companies are) necessarily caught by Article 2(2)(c) of Directive 2003/4? The CJEU gave a fairly strong hint that it normally would be (at [60]), but in the light of the Aarhus Convention basis of the Directive reformulated its analysis:

“68      Those factors lead to the adoption of an interpretation of ‘control’, within the meaning of Article 2(2)(c) of Directive 2003/4, under which this third, residual, category of public authorities covers any entity which does not determine in a genuinely autonomous manner the way in which it performs the functions in the environmental field which are vested in it, since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on the entity’s action in that field.

69      The manner in which such a public authority may exert decisive influence pursuant to the powers which it has been allotted by the national legislature is irrelevant in this regard. It may take the form of, inter alia, a power to issue directions to the entities concerned, whether or not by exercising rights as a shareholder, the power to suspend, annul after the event or require prior authorisation for decisions taken by those entities, the power to appoint or remove from office the members of their management bodies or the majority of them, or the power wholly or partly to deny the entities financing to an extent that jeopardises their existence.

70      The mere fact that the entity in question is, like the water companies concerned, a commercial company subject to a specific system of regulation for the sector in question cannot exclude control within the meaning of Article 2(2)(c) of Directive 2003/4 in so far as the conditions laid down in paragraph 68 of the present judgment are met in the case of that entity.

71      If the system concerned involves a particularly precise legal framework which lays down a set of rules determining the way in which such companies must perform the public functions related to environmental management with which they are entrusted, and which, as the case may be, includes administrative supervision intended to ensure that those rules are in fact complied with, where appropriate by means of the issuing of orders or the imposition of fines, it may follow that those entities do not have genuine autonomy vis-à-vis the State, even if the latter is no longer in a position, following privatisation of the sector in question, to determine their day-to-day management.”

On this topic at least the CJEU may not have answered the question – it again left it for the Upper Tribunal to determine – but it made its feelings as to the likely outcome pretty clear.

In relation to hybrid public authorities, the CJEU was distinctly unkeen on the importation of such an uncertain test: at [76]. The rejection of hybridity in Smartsource is therefore approved. Instead, it concluded that “Article 2(2)(b) of Directive 2003/4 must be interpreted as meaning that a person falling within that provision constitutes a public authority in respect of all the environmental information which it holds. Commercial companies, such as the water companies concerned, which are capable of being a public authority by virtue of Article 2(2)(c) of the directive only in so far as, when they provide public services in the environmental field, they are under the control of a body or person falling within Article 2(2)(a) or (b) of the directive are not required to provide environmental information if it is not disputed that the information does not relate to the provision of such services“: at [83]. So there can be limits in particular types of case (control cases), but otherwise all environmental information is accessible.

Quite what the result of the judgment is going to be is unclear. Hybridity is dead, and there is some greater clarity on when a body can be said to be under the control of a public authority, but the more general test of when public administrative functions are being exercised remains distinctly murky. It is not likely to be very long before a further reference is sought from somewhere, although it probably will not be announced on the Ellen show.

11KBW’s Anya Proops appeared for the Commissioner in the CJEU, and Rachel Kamm did the same before the Upper Tribunal.

A Merry Christmas to all Panopticon’s readers, and may your 2014 bring you boundless information law litigation.

Christopher Knight

 

Royal Wills and JR of the Upper Tribunal

Posted on | by Christopher Knight

Mr Brown became a well-known figure in litigation circles when he sought to unseal the Will of Princess Margaret in the belief that it might reveal information showing him to be her illegitimate son. In the course of his unsuccessful litigation, it was revealed that there existed what had been described orally during the court proceedings as a “Practice Direction in respect of the handling of Royal Wills” (although there is dispute over precisely what form this document takes), produced by the-then President of the Family Division following liaison with the Royal Household.

Having failed to unseal the Will, Mr Brown requested a copy of the document from the Attorney General. He was refused, under section 37 FOIA. The First-tier Tribunal upheld that refusal (on which see Robin’s blog here). Mr Brown appealed to the Upper Tribunal on the grounds of inadequacy of the Tribunal’s reasons and a failure to properly apply the public interest test. The Upper Tribunal refused permission at an oral hearing.

Under the revised CPR procedure in rule 54.7A, Mr Brown sought permission to judicially review the refusal of permission to appeal by the Upper Tribunal. Following an oral hearing, Phillips J granted permission. It will now be a matter for the Attorney General (as respondent/defendant in the proceedings) to decide whether to defend the judicial review at a substantive hearing, or simply to defend the substantive appeal in the Upper Tribunal.

For a news report on the decision, see here.

Anya Proops appeared for Mr Brown before the High Court and Upper Tribunal. Jonathan Swift QC and Joanne Clement appeared for the Attorney General. Robin Hopkins appeared for the Commissioner at first instance.

Christopher Knight

APPGER in the Upper Tribunal

Posted on | by Christopher Knight

The Upper Tribunal has finally handed down its judgment in All Party Parliamentary Group on Extraordinary Rendition v IC & Foreign and Commonwealth Office [2013] UKUT 560 (AAC). It is a judgment of Charles and Burnett JJ and Judge Wikeley. The appeal was from an FTT judgment which is analysed in detail by Rachel Kamm here. That post also contains the background to the case. In essence, the request was made by the APPGER for information relating to the participation of the UK in the practice of extraordinary rendition. The judgment is long, and will be blogged on in more detail in due course. But in brief, there were five broad grounds of appeal:

1) That the FTT erred in its approach to Article 10 ECHR;

2) That the FTT erred in its construction of section 23(1) FOIA (information relating to a security body);

3) That the FTT failed to provide adequate reasons for its conclusions on section 23(1);

4) That the FTT erred in its approach to the control principle (put simply, that information acquired through diplomatic or security channels is not disclosed without consent) and so failed to carry out the balancing process correctly under section 27 FOIA (international relations);

5) That the FTT erred in its approach to the section 35(1)(a) FOIA exemption (formulation and development of policy).

Grounds 1 and 2 have not been decided. They are stayed pending the judgment of the Supreme Court in Kennedy v Charity Commission (see here).

The Upper Tribunal rejected grounds 3 and 5. They held that the reasons provided by the FTT were sufficient when read as a whole, and that their approach to section 35(1)(a) had been in accordance with the authorities.

The bulk of the judgment concerns ground 4, and the appeal on section 27. The Upper Tribunal held that the APPGER had been rendered ignorant of the FCO’s primary case on the relevant harm caused by disclosure, and that the FCO, the ICO and the FTT had failed to identify or explain this in open session: at [89]-[90]. There was no good reason for this failure, and it resulted in avoidance substantive and procedural unfairness: at [95]-[96]. The failure of the FTT to hold a further hearing or allow further submissions to be made to consider alterations made to the draft judgment at the behest of the FCO was an error of law which perpetuated unfairness: at [113].

Although obiter, the Tribunal also concluded that the FTT’s approach meant that it did not properly understand the underlying reasoning of the arguments advanced and its conclusions did not have a proper evidential and reasoned foundation under section 27: at [118].

The Upper Tribunal also made general observations on the nature of closed sessions; the need for cases advanced in closed to be identified with clarity; the need to make a record of closed sessions; the need to identify in open the competing public interests wherever possible; and the need to limit material adduced only in closed session, along with the utility of schedules identifying the issues: at [144]-[156].

There is much to be taken from the Upper Tribunal decision, and of course the APPGER litigation is some way off being over. Further analysis will doubtless be forthcoming, but you can read the judgment here:

GIA 2230 2012 Upper Tribunal decision

Tim Pitt-Payne QC and Joanne Clement (11KBW) acted pro bono to represent APPGER; Robin Hopkins (11KBW) acted for the Information Commissioner; and Karen Steyn (also of 11KBW) and Julian Blake represented the FCO.

Christopher Knight