Two decisions on 21 March 2011 of differently constituted First-Tier Tribunals, Johnston v I Co and Brecon Beacons National Park Authority, EA/2010/0130/0131, and Gilbert v I Co and Local Government Ombudsman, EA/2010/0190, both considered the exemption from disclosure constituted by FoIA s40.  In each case the FTT found that individuals were the focus of the information requested and that it constituted personal data.  In each case the FTT considered whether disclosure would breach the first data protection principle under the DPA, in particular whether disclosure would be unfair, whether the disclosure was necessary to promote legitimate interests, and whether disclosure would cause unwarranted interference with the interests of the individuals whose data was in issue, especially in the case of a junior officer and where any legitimate aims of the requester could be achieved by a means that interfered less with the privacy of the individual officer, whilst retaining accountability.

James Goudie QC

In Chichester District Council v Friel, Case No. EA/2010/0153, Decision on 16 March 2011, the First-Tier Tribunal was concerned with a request for information with regard to a planning application made by the Council to itself.  The Tribunal rejected arguments by the Council that EIR 12(5)(d), confidentiality, and 12(5)(e), commercial or industrial information, applied.  EIR 12(4)(e), however, internal communication, did apply to a valuation.  The issue therefore was as to the application of the Public Interest Test.  The Tribunal regarded the public interest in favour of disclosure as being enhanced by what it called (para 39) a “deficit of democratic engagement”.  The Tribunal observed (para 29) that whereas, prior to the major changes to local government in 2000, ward members were involved in a variety of decision making Committees, it was commonly the case now that almost all decisions are taken by a very small group of Councillors in Cabinet, and that the ability of Councillors not in Cabinet to scrutinise and thereby render accountable decisions taken which are not in the public domain relies upon either matters going to full Council or the Scrutiny & Overview Committee exercising their ‘call in’ powers. In the instant appeal the decision to sell the land for development had gone to Council in 2003. It had not since been before any Council or Committee meeting. Thus, as at the material time in mid-2009, there had been no formal Councillor review or input to this proposal for almost 6 years. Throughout this period, the issues as to sale, nature of development and planning permission had been dealt with at officer level.  Those opposed to the development were consistently and correctly told that financial viability was not a valid planning consideration and as such, they were told that their concerns in this regard, could not be taken into account.   This left the opponents at a loss as to when and how they could access information on this issue and when and how their concerns could be addressed and their views made known.

As to public interest factors against disclosure, the Council urged that, if disclosure was made, the Council would need to change its processes to its detriment. It was said that the Council would need to take decisions without the benefit of a valuation and/or the valuation would need to be in such vague terms as to be essentially worthless. This would inevitably, it was said, mean that the Council’s decisions would be less effective potentially to the financial detriment of local taxpayers.

As regards the possibility that the Council would change its practices as a result of disclosure, thereby impeding internal communications, the Tribunal (para 40) noted however that there was no evidence of this, merely speculation and assertion on the part of the Council. That this would follow, ignored the developments in local government since the introduction of FOIA and the EIR. The Tribunal expected authorities to understand by now that disclosure in an individual case was specific to the circumstances of that case. In that sense, disclosure under FOIA and EIR is never routine. In any event, any changes to procedure would still need to provide for elected members being properly informed of relevant matters in the decision making process. The Tribunal questioned whether the Council’s reluctance to make disclosure in this case was a product of an old orthodoxy that valuations will never, in any circumstances, be made public.

In all the circumstances, the Tribunal did not find itself able to conclude that the disclosure would be likely (as distinct from possible) to have a negative impact. Given the passage of time since the valuation and the capacity for variable factors to reduce its reliability, the Tribunal had not been satisfied by the Council’s argument that there was an appreciable risk to the receipt of best value.  Moreover, the Tribunal noted that certain of the information contained within the valuation document was already in the public domain.  In all the circumstances, the Tribunal found that the public interest in maintaining the exception did not outweigh the public interest in disclosure.

James Goudie QC

On 10 March 2011 Advocate General Kokott gave her Opinion in Case C-71/10, OFCOM v Information Commissioner, a reference from the UK Supreme Court.  According to the Environmental Information Directive the right of access of individuals to environmental information can be restricted if disclosure would undermine particular interests deserving of protection provided that in the particular case the public interest served by disclosure does not outweigh the public interest served by refusal.  The question is whether, when deciding upon disclosure of environmental information, individual adversely affected interests which, when taken individually, would not be sufficient to outweigh the public interest served by disclosure can be cumulated and possibly together justify the confidential treatment of information.  The Advocate General answered the question in the affirmative.  She said (para 41): “…  the breakdown of interests meriting protection into different exceptions does not preclude their cumulation. As convincingly argued by the United Kingdom, these exceptions are not always clearly distinguishable from each other. Indeed, the interests meriting protection sometimes clearly overlap.”

The Advocate General accepted that a cumulation of interests cannot create additional exceptions to the right to information, and said that the main issue is whether additional exceptions are created by a cumulation of recognized adversely affected confidential interests during the balancing exercise.  She continued (from para 53): “Cumulation can unquestionably bring about an additional restriction of access to environmental information if several interests together justify a refusal of disclosure even though, when taken in isolation, they would be outweighed by the public interest served by disclosure. It would nevertheless still always be a question of restriction of access based on recognised interests.  I agree with the United Kingdom in considering that this additional restriction correctly applies the principle of proportionality. … if the recognised interests militating against disclosure were together to clearly outweigh the public interest served by disclosure, the disadvantages caused by the disclosure of environmental information would no longer be proportionate to the aims pursued. … The Information Commissioner does indeed fear that the balancing of cumulative interests would be difficult to achieve in practice; however, these difficulties lie less in cumulation itself than in the nature of the balancing exercise between the interests served by disclosure and the interests served by the withholding of information. These interests are generally only comparable with difficulty, so that it is also difficult to weigh them against each other. This balancing exercise is made easier, however, if one applies the requirement of a restrictive interpretation of exceptions during the balancing exercise such that, in the event of doubt, the issue is decided in favour of transparency. … Consequently, the answer to the reference for a preliminary ruling should be that where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception under Article 4(2) of the Environmental Information Directive, but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, the directive requires a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure.”

James Goudie QC

A Bill has recently been introduced in both Houses of the US Congress, in response to the Wikileaks disclosures, to amend the US Espionage Act 1917 to make it a criminal offence for any person knowingly and wilfully to disseminate, “in any manner prejudicial to the safety or interest of the United States”, any classified information “concerning the human intelligence activities of the United States”.  This proposal would appear to be constitutional with respect to US Government employees who leak such material to those who are unauthorised to receive it.  But what about the constitutionality of criminalising anyone who publishes the information after it has been leaked, especially given that the proposed new offence is not, at any rate expressly, limited to situations in which the spread of the classified information poses a “clear and present danger” of grave national harm?

The “clear and present danger” standard has been the governing principle under the First Amendment to the US Constitution since Supreme Court Justice Oliver Wendell Holmes Opinion in Schenk v United States in 1919.  The principle was stated by Supreme Court Justice Louis D. Brandeis in Whitney v California in 1927.  The founding fathers of the US “did not exalt order at the cost of liberty”, wrote Brandeis.  On the contrary, they understood that “only an emergency can justify repression.  Such must be the rule if authority is to be reconciled with freedom.  Such … is the command of the Constitution.  It is, therefore, always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it”.

Writing in the New York Times on 3 January 2011, Geoffrey R. Stone, Professor of Law at the University of Chicago, and Chairman of the Board of the American Constitution Society, explains that the First Amendment does not compel Government transparency.  It leaves the Government autonomy to protect its own secrets.  It does not accord anyone the right to have the Government disclose information about its actions or policies.  It cedes to the Government authority to restrict the speech of its own employees.  What it does not do, however, is allow the Government to suppress the free speech of others when it has failed to keep its own secrets.

Professor Stone gives a number of reasons why it is right to give the Government limited scope for penalising the circulation of unlawfully leaked information.

First, the mere fact that such information might “prejudice the interests of the United States” does not mean that that harm outweighs the benefit of publication. In many circumstances, it may be extremely valuable to public understanding. Consider, for example, classified information about the absence of weapons of mass destruction in Iraq. Second, the reasons that Government officials want secrecy are many and varied. They range from the compelling to the illegitimate. It is tempting for Government officials to overstate the need for secrecy, especially in times of national anxiety.  Third, a central principle of the First Amendment is that the suppression of free speech must be the Government’s last rather than its first resort in addressing a problem. The most obvious way for the Government to prevent the danger posed by the circulation of classified material is by ensuring that information that should be kept secret is not leaked in the first place. The Supreme Court in Bartnicki v Vopper in 2001 held that when an individual receives information “from a source who obtained it unlawfully,” that individual may not be punished for publicly disseminating the information “absent a need … of the highest order”. The Supreme Court explained that if the sanctions now attached to the underlying criminal act do not provide sufficient deterrence, then perhaps they should be made more severe,  but that “it would be quite remarkable to hold” that an individual can constitutionally be punished merely for publishing information because the Government failed to “deter conduct by a non-law-abiding third party”.  Professor Stone concludes that if  the Government is granted too much power to punish those who disseminate information, then one risks too great a sacrifice of public deliberation; if, on the other hand, the Government is granted too little power to control confidentiality at the source, then  one risks too great a sacrifice of secrecy. The answer is to reconcile the values of secrecy and accountability by guaranteeing both a strong authority for the Government to prohibit leaks and an expansive right for others to disseminate information to the public.

James Goudie QC

MGN publishes the Daily Mirror and other newspapers.  Mr Grisbrook is a freelance photographer.  Between 1981 and 1997 he supplied MGN with a large number of photographs for publication by MGN in their daily newspapers and storage by them. He retained the copyright.  He was paid for each publication.  In 1997 he terminated MGN’s licence to use the photographs.  MGN later created three websites that allowed the public to view and buy part or whole of back copies of their newspapers.  Some of these include Mr Grisbrook’s photographs. He claimed that this infringed his copyright.   In MGN v Grisbrook [2010] EWCA Civ 1399 the Court of Appeal agreed.   The dispute related to the commercial exploitation of the MGN database by means of the three websites.  It was not suggested that such exploitation was within the contemplation of the parties at the various times between 1981 and 1997 when the relevant photographs were submitted by Mr Grisbrook to MGN.  Nor was it suggested that any second publication of one of Mr Grisbrook’s photographs would not generate a liability to Mr Grisbrook for a further fee.  What was suggested was that the website is an alternative means of delivery of the original newspaper: because there was no limit on the numbers which might have been published originally the operation of the website should be regarded as only further delivery of the original, licensed, paper.  The Court of Appeal agreed that the operation of the website could be regarded as further delivery of the original, but not that it could only be so regarded.  A website operates over a global area, its coverage is greatly in excess of anything MGN could have reached with hard copy newspapers.  It enables a member of the public to read it before deciding whether he wants a hard copy and the production of hard copies by the public far in excess of anything MGN could have produced.  The extent of the market and the costs incurred in reaching it are quite different to those of the hard copy newspapers of the past.  The suggestion that an intention might be imputed to Mr Grisbrook and MGN from their conduct in relation to Mr Grisbrook’s photographs in the period 1981 to 1997 that MGN should be entitled without further charge to exploit the copyright of Mr Grisbrook in his photographs by inclusion on their websites was unacceptable.  Newspapers are essentially ephemeral and, save for the enthusiastic collector, retain no long lasting status: the parties will have intended that they would be treated as daily papers are generally treated, that is to say, read and replaced with the following day’s edition.  To incorporate the pictures into the website was to provide a permanent and marketable record easily available world-wide which could well reduce the value of the further use by Mr Grisbrook of the photographs over which it was common ground he possessed the copyright.  This is why this was not just a question of degree but of kind.   Copyright in the compilation does not affect the rights of the owner of copyright in its parts unless he licenses its further publication.  The existence of such overlapping copyrights demonstrates the need for the compiler to obtain sufficient licences from his contributors.

James Goudie QC

In Wild v IC and Chief Constable of Hampshire Constabulary (EA/2010/0132) the Appellant was concerned as to whether the provisions of the Hunting Act 2004 were being complied with in the Isle of Wight and how these provisions were being enforced by the Hampshire Police.  She requested from the Chief Constable dates of pre-hunt meetings in last 5 years and names of officers attending pre-hunt meetings with Isle of Wight Hunt, such meetings being meetings between the organisers of hunts and the police officers responsible for supervising hunts (“Hunt Liaison Officers”).  The Police responded, providing dates, but refusing to disclose the names of the officers in attendance. 

The IC considered the application of S40(2) of FOIA to the case.  He concluded that the names of officers attending the meeting would be personal data and therefore in considering the potential disclosure it was necessary to consider whether it would be in accordance with the data protection principles embodied in the DPA.  He concluded that the disclosure would result in a breach of the first such principle that data should be processed fairly and lawfully.  He accepted that the disclosure may lead to the harassment of the officers identified and consequently the disclosure would be unfair to those officers. 

The Tribunal rejected the appeal and upheld the IC’s decision.  The IC had correctly struck the balance between the Appellant’s legitimate interest in disclosure and the prejudice to Hunt Liaison Officers disclosure of whose identity would put them at risk of harassment.

James Goudie QC