Dalley v Information Commissioner, EA/2011/0180, FTT Decision on 15 February 2012, concerns EIR Regulation 12(5)(d), on breach of confidence, and a refusal by the Ombudsman of an information request.  The confidentiality was provided by Section 32(2) of the Local Government Act 1974 in relation to Ombudsman investigations and conducting them efficiently.  The question was whether the public interest in maintaining that confidentiality outweighed the public interest in awareness of investigations on environmental issues conducted by the Ombudsman.  The subject matter was drainage issues and the alleged failure of the Local Planning Authority to address them in a satisfactory manner.  The FTT concluded that the balance of public interest was against disclosure.  The FTT emphasized (para 11) that there is a public interest in enabling the Ombudsman to receive information in confidence, so as not to affect adversely his ability to investigate complaints and thus to maintain the accountability and transparency of local government.

On 14 February 2012 the European Court of Human Rights gave Judgment in the case of Hardy and Maile v United Kingdom, Application No 31965/07, in which the Applicants alleged that the UK had failed in its duties under ECHR Arts 2 and 8 regarding the regulation of hazardous activities and the dissemination of relevant information.  The Application concerned the construction and operation of two Liquefied Natural Gas terminals on sites at Milford Haven Harbour.  The relevant domestic provisions with respect to dissemination of information were Regulations 5 and 12 of the Environmental Information Regulations 2004 (the EIR).  The complaint was about an alleged lack of information disclosed regarding the risks associated with these terminals.

The Court, at para 245, reiterated that in cases concerning hazardous activities, the importance of public access to the conclusions of studies undertaken to identify and evaluate risks and to essential information enabling members of the public to assess the danger to which they are exposed is beyond question.  The Court further, at para 246, reiterated that respect, under ECHR Art 8, for private and family life, requires that where a Government engages in hazardous activities which might have hidden adverse consequences on the health of those involved in such activities, and where no considerations of national security arise, “an effective and accessible procedure must be established which enables such persons to seek all relevant and appropriate information”.

The Court, at para 248, noted that the provisions of the EIR (and of FoIA) establish an extensive regime to promote and facilitate public access to environmental information; that the definition of “environmental information” is “relatively wide” and can include information relating to public safety; that in the event that information requested is not provided by the relevant authority, a challenge to the Information Commissioner is possible, followed by an appeal to the Information Rights Tribunal, the Upper Tribunal and the Court of Appeal.  Indeed the Applicants had availed themselves of the opportunities afforded by this legislation, and obtained a favourable decision from the Information Commissioner ordering the release of two reports requested by them.  The complaint was that these reports were heavily redacted.

The Court concluded as follows:-

“249.     The Court reiterates the importance of informing the public of the conclusions of studies undertaken and to other essential information to identify and evaluate risks. As the Information Commissioner explained in his decision notice disclosure of environmental information of the type requested by the applicants can add significantly to public knowledge of the risks posed by the development and better inform public debate. However, the Court considers that in the present case, a great deal of information was voluntarily provided to the public … The applicants have failed to demonstrate that any substantive documents were not disclosed to them. In any event, in respect of any information which they allege was not provided, they had access to a mechanism established by law to allow them specifically to seek particular information, a mechanism which they employed successfully. In the circumstances, the Court is satisfied that the authorities provided information as required by Article 8 and that there was an effective and accessible procedure by which the applicants could seek any further relevant and appropriate information should they so wish.

 250.      In conclusion, having regard to the information provided during the planning stage of the projects, to the provisions of the Environmental Information Regulations allowing access to environmental information and to the routes of appeal available in the FOI Act, the Court finds that the respondent State has fulfilled its positive obligation under Article 8 in relation to these applicants. There has accordingly been no violation of this provision.  …”

Tugendhat J ended in his Judgment on 19 December 2011 in AB v Barristers Benevolent Association Ltd [2011] EWHC 3413 (QB) by saying: “This judgment may alert practitioners to the possibility that information stored on a cache by Google may take several days to have removed”.

The BBA provides support to barristers in many different circumstances, including by way of loans. AB is a barrister who sought a loan from the BBA about six or seven years ago. On 5 December 2011 it was brought to her attention that confidential correspondence between herself and the BBA was available on the internet. She conducted a search through Google and found the information herself.

On 6 and 7 December 2011 the judge on out of hours duty granted an injunction without notice to the BBA. The injunction was discharged because an injunction against the BBA was unnecessary. There was no dispute that the documents in question contained confidential information, and that its confidentiality should be preserved.

On 5 December AB had contacted the BBA. The official she spoke to was already aware of the problem.  The BBA assured AB that the BBA’s IT consultant was addressing the issue as a matter of urgency.

The information remained accessible on Google throughout 6 December. The IT consultant said he was doing everything he could. He explained that the problem lay with Google, and that it might take some time for all their servers to be synchronised so as to remove the information from the caches. He explained he had been calling Google offices all over the world to try to get action, without success.

What had happened to give rise to this affair was explained by the IT consultant in a witness statement.  In 2005 or 2006 his firm had been asked by the BBA to assist in removing data from one hard drive to a new one. The process was carried out by copying data to a temporary file, which should have been deleted, but was not. It was retained inadvertently on a server. At the time that did no harm, because the server was not publicly available. However a technical change by the firm’s broadband supplier O2 led to the server becoming available to Google to pick up the data without the firm knowing that that was happening.

On Friday 2 December 2011 the BBA became aware that the information was available through Google. The BBA immediately contacted the IT consultant and asked him to deal with it as a matter of extreme urgency. The IT consultant’s firm identified what had happened. He removed the source of information from its server and disconnected the server from the internet. All the data that had been inadvertently stored was deleted. He then contacted Google via the webmaster tools requesting the removal of the material from the Google cache. This is where the problem arose.

On 5 and 6 December the IT consultant made numerous further attempts to contact Google to have the information removed from the caches as a matter of urgency. According to his evidence, and the e-mails that he has exhibited, he could not have expressed himself more forcefully, or more urgently, but he received no prompt response from Google. It was not until 10 pm on Tuesday 6 December that he found some files had been removed by Google.

On the morning of 7 December the IT consultant discovered that there was still information that had not been removed from the caches. He contacted Google again on more than one occasion.  It was not until Friday 9 December that Google had fully complied with his request to remove the information in its entirety.

The Irish Commissioner for Environmental Information, Emily O’Reilly, on 30 September 2011 ruled that Anglo Irish Bank is subject to requests from the public relating to the environment, on the basis that for environmental information purposes the Bank, which was nationalised in January 2009, is a public authority.  The Bank had, under the European Communities (Access to Information on the Environment) Regulations 2007, refused requests relating to matters such as travel expenses and properties on the basis that it is a company, as indeed it is.  The Bank argued that it is not a public body, even though all its shares are held by the Minister of Finance.  The Commissioner, Case CEI/10/0007, disagreed.  The Bank can appeal to the High Court.

A company in which all the shares are directly held by a Minister of the Government is not amongst the entities specifically listed in EU Directive 2003/4/EC or the Aarhus Convention, but is specifically listed in the Irish Regulations, on their plain and ordinary reading.  The Commissioner ruled that the meaning of the Irish Regulations is clear and unambiguous, without any further conditions applying as to public administrative functions and responsibilities.  Nor did she regard this as being at odds with the Directive.  On the contrary she said that “it is very arguable that the Directive, in particular Recitals (11) and (24), encourages and enables Member States to take an expansive approach” to what constitutes a “public authority”.   (The same can be said of the Aarhus Convention, in particular Article 2.2.)  She did not accept that the definition of “public authority” in the Irish Regulations should be interpreted restrictively where a Member State has apparently chosen to take an expansive approach to the definition.

In the UK under FoIA and the Environmental Information Regulations 2004, and their Scottish equivalents, a company which has no members other than a Minister of the Crown (including a Northern Ireland Minister) is a public authority.  No doubt a UK Court would agree that this is not at odds with the Directive, either as being in accordance with it or as being a legitimate expansion of it (and, in the case of the Environmental Information Regulations, made under the European Communities Act 1972, intra vires).

James Goudie QC, instructed by John Bridger of Preston Redman, appeared for Councillor John Beesley, the Deputy Leader of Bournemouth Borough Council, before the First-Tier Tribunal (Local Government Standards).  The Tribunal (Case No: LGS/2010/0533) found that Cllr Beesley had not breached the Code of Conduct.  He had declared personal interests.  They were not also prejudicial interests.  Tribunal Judge Chris Hughes OBE accepted the submission that:

             “The test to be applied under the Code of Conduct is in essence the same as the test for apparent bias.  The member of the public viewing these circumstances would demonstrate two key characteristics – adopting a balanced approach and while not being complacent would not be unduly sensitive or suspicious (Gillies v Secretary of State for Work and Pensions [2006] 1WLR 781).  The matter must be considered from the point of view of an observer who is both informed and fair minded.  The question to be addressed by the member of the public with these characteristics is whether there is a likelihood in other words a real possibility (Porter v Magill [2002] 2AC 357) of bias.”