Author: Robin Hopkins

The BBC in the Tribunal: not a public authority under the EIR; strong arguments for disclosure of licence fee legal advice

Posted on | by Robin Hopkins

In Montford v IC and BBC (EA/2009/0114), the appellant had asked the BBC various questions about its expenditure in relation to Cambridge Media and Environment Program, which researched and planned a programme of seminars that had been running since 2005 at which BBC editorial staff discussed issues such as environmental change and world development, with the objective of improving BBC journalism in those areas.

The BBC is a public authority within Schedule 1 of FOIA only within the following parameters: “The British Broadcasting Corporation, in respect of information held the purposes other than those of journalism, art or literature”. The Supreme Court addressed this “derogation” from FOIA in Sugar v BBC [2012] UKSC 4: see our post here. Montford concerned not only the application of Sugar to this request, but also an argument that, given the subject matter of the request and the BBC’s activities, the BBC was a public authority within the meaning of regulation 2 of the EIR.

The Tribunal considered the leading cases on the latter point (Smartsource, Port of London, Network Rail, Bruton) and – applying the multifactorial approach from Smartsource – concluded that the BBC was not a public authority under the EIR. Further, the requested information was not environmental: that requires more than a remote link to the environment, and in the present case there was no link. It was therefore FOIA which applied, and Sugar meant that the requested information fell within the derogation. The BBC therefore did not have to provide it.

The BBC also featured – though not as a party – in another Tribunal decision of late. Crawford v IC and DCMS (EA/2012/0018) concerned the conclusion of the ‘BBC settlement’, ie the funding arrangements (freezing of the licence fee, BBC taking over World Service funding and so on) agreed with extraordinary speed between Jeremy Hunt and BBC Trust chair Michael Lyons in October 2010. The requester – a BBC journalist – sought information about that agreement. By the time of the hearing, the only disputed information was legal advice, which fell within section 42(1) of FOIA. The argument focuses on the public interest.

As readers will be aware, information falling within section 42(1) has very rarely been ordered for disclosure by the Tribunal. One gets the sense from the Tribunal’s decision in Crawford that the appellant here came closer than most to getting the information he sought.  The Tribunal noted the unprecedented speed with which negotiations about matters of great public interest were concluded in 2010. In the circumstances, there were “weighty factors in favour of disclosure of any information which can shed light on how this speedy settlement which affects so many people was reached. In other words there is a significant public interest in transparency and accountability in this case”. The stumbling block, however, was that the disputed legal advice shed only limited light on those concerns. Disclosure was thus not ordered. The Tribunal concluded on a note of sympathy with the requester:

“We would observe that we can understand why Mr Crawford has pursued this matter to a hearing despite disclosure of most of the information originally requested. It seems to us, that despite the exceptional nature of the CSR, the haste of the negotiations and lack of record of what took place means that Mr Crawford has quite understandably had to challenge the DCMS into providing whatever contemporaneous record there might be to help him in his journalist pursuit to provide the public with the facts of this unprecedented Licence Fee Settlement with its far reaching effects.”

Robin Hopkins

Commercial prejudice: the importance of precise and limited redactions

Posted on | by Robin Hopkins

In the recent decision in UK Coal Mining v IC, Nottinghamshire County Council & Veolia [2012] UKUT 212 AAC, the Upper Tribunal has dismissed an appeal concerned with section 43(2) of FOIA (commercial prejudice): the First-Tier Tribunal (decision EA/2010/0142, on which see our post here) had been entitled to find that only very limited redactions could be made to provisions from a PFI contract for a waste incinerator. Upper Tribunal Judge Wikeley’s decision, while largely fact-specific, illustrates two significant points.

First, appeals against FTT decisions are liable to fail where they are simply attempts to re-run questions of fact and judgment.

Secondly, those seeking to rely on section 43(2) FOIA should be as precise as possible. Sometimes, for example, a clause in a contract might appear commercially sensitive at first glance, but upon closer scrutiny all that really warrants withholding might be the numbers.

The background to the decision is briefly as follows. UK Coal entered into a complex PFI agreement with the Council for an option to lease a former colliery site the site, with Veolia then sub-leasing the site from the Council to operate an incinerator. Upon a request for the contracts, the Commissioner found that regulation 12(5)(e) of the EIR (confidentiality of commercial or industrial information) was engaged, but that the public interest favoured disclosure. Upon what was effectively UK Coal’s appeal, the FTT found that the matter should have dealt with under FOIA rather than the EIR. Section 43(2) was engaged, but the public interest favoured disclosure of at some of the disputed information. Eventually, the Tribunal largely endorsed the Commissioner’s (very limited) redactions, rejecting the much more extensive redactions proposed by UK Coal. UK Coal’s appeal to the Upper Tribunal failed.

As regards challenges to the FTT’s decision, Upper Tribunal Judge Wikeley said that it was important that the FTT’s statement of reasons is read as a whole, rather than highlighting particular phrases and taking them out of their wider context. The FTT had allowed for the redaction of what it called “core financial information”, but this was simply a convenient shorthand not amenable to close textual analysis or to legal challenge per se.

Notably, he said that this of the FTT’s assessment:

“This was a quintessential issue of fact and degree for the tribunal at first instance to determine… The bottom line is that UK Coal is essentially seeking to re-argue questions of fact and judgement which have been litigated and adjudicated upon on their merits by the FTT.“

Judge Wikeley also warned that the caution against relying too heavily on other FTT decisions (see the Upper Tribunal’s decision in LB Camden v IC and Voyias GIA/2986/2011) applies with even greater force to attempts to rely on other decision notices by the ICO (as UK Coal sought to do here).

Turning to the section 43(2) redactions urged by UK Coal, the Upper Tribunal considered these to be “far too wide-ranging” and its arguments unsustainable. Some of the terms it sought to withhold were commonplace to commercial agreements. The FTT had approached its redaction analysis with care and precision, and correctly struck a balance between protecting UK Coal’s proper commercial interests under section 43 while ensuring that other information is disclosed. In some cases, the FTT allowed only for the redaction of figures rather than terms as a whole. This nonetheless ensured that a member of the public would have “no idea as to either the commercial methodology or the key financial and other numerical variables used”.

The Upper Tribunal’s decision cites specific examples of the scope of redactions to commercial terms which the FTT applied and which the Upper Tribunal found to be entirely understandable. The examples merit close attention by those seeking to withhold information in similar cases.

Robin Hopkins

Important new privacy judgment: police retention of protestor’s data not an Article 8 infringement

Posted on | by Robin Hopkins

The Admin Court (Gross LJ and Irwin J) has handed down judgment this week in Catt v Association of Chief Police Officers and Commissioner of Police of the Metropolis [2012] EWHC 1471 (Admin). It is an extremely important judgment on Article 8 ECHR in the context of personal information retained for policing purposes. It is also notable for its analysis of protest as an inherently public activity.

The background

ACPO launched a National Domestic Extremism Database containing information provided by police forces. The Metropolitan Police subsequently assumed responsibility for the database. The database contained information relating to the attendance by the claimant (an 87-year old protestor of good character) at various political protests made by a group called “Smash EDO”. Smash EDO opposes a US arms manufacturer with a factory in Brighton; its activities have often involved violent disorder and criminality (though apparently not by the claimant), necessitating a substantial police presence. Police officers overtly gathered information (including photographic and video material) at those protests. They then compiled reports on the protests, identifying a number of individuals including the claimant. The information at issue in this case comprised those sorts of reports – they were about incidents rather than the claimant per se, although the claimant was identified in the reports. The defendants retained that information pursuant to the statutory Code of Practice on the Management of Police Information, made under the Police Acts 1996 and 1997, and associated Guidance on the Management of Police Information.

The issues

The overarching issue was whether this infringed Mr Catt’s rights under Article 8 ECHR, the right to respect for private life.

It is important (if not entirely surprising) to note how the parties and the Court saw Article 8 and the Data Protection Act 1998 interacting (see paragraph 6(iv)). All agreed that the DPA was theoretically in play, but added nothing: if the Article 8 claim succeeded then the DPA claim was not needed; if Article 8 was engaged, but the interference was justified, then the DPA claim would automatically fail; if Article 8 was not engaged, the prospects of success under the DPA were negligibly remote.

The issues were therefore: (i) whether there was an interference with the claimant’s rights under Article 8(1), and (ii) if so, whether this interference was justified. The Court said no on both counts, by application of the authorities to three crucial findings.

Crucial findings

First, the Court accepted the need for such information to be retained by the police. Gross LJ said this at paragraph 19:

“… the use of intelligence is a fundamental policing tool.  Investigators need the ability to identify relationships within protest groups. Likewise, they need to be able to identify individuals associated with the use of particular tactics, together with those with a propensity to violence, disorderly behaviour and organised coordinated actions.  Although Mr. Catt has not been convicted of any offence, the evidence, which again I accept, is that his close association with violent members of Smash EDO and knowledge of this association is of intelligence value.  Such knowledge forms part of a “far wider picture of information”… needed by the police, inter alia, to investigate incidents of criminality and to assist the policing of future events.”

Secondly, “the essential nature of such activity [protesting] is that it is of a public nature. Indeed, its very object is to make others aware of his views and the causes to which he lends his support” (paragraph 36).

Thirdly, given the violent disorder which characterised Smash EDO’s activities, it was reasonable to expect the police to gather and retain such information. This was especially so as this information had been gathered by over rather than covert policing.

Issue 1: Article 8(1) neither engaged nor infringed

Given those findings, the Court concluded that the claimant’s rights under Article 8(1) were not engaged at all. The claimant’s reliance on R (Wood) v Commr of Police of the Metropolis [2009] EWCA Civ 414 did not assist: the facts were different, and it would be “unreal and unreasonable” to find an infringement of Article 8(1) in the present case.

Issue 2: interference would in any event be justified

The Court went on to conclude that even if there had been an interference with Article 8(1), this would be justified. The claimant had argued inter alia that he was not personally suspected of criminality and that there was no democratic oversight of the database system. The defendant argued inter alia that, given Smash EDO’s activities, the retention of this sort of information – police reports as opposed, for example, to photos or video material – was reasonably necessary and proportionate.

Gross LJ (with whom Irwin J agreed) had “no hesitation in concluding that any interference with Mr. Catt’s rights was amply justified under Art. 8.2”.

His reasons included the following (paragraph 64):

“Any interference with Mr. Catt’s Art. 8.1 rights was at the margins. The reports, the product of overt policing, did no more than record Mr. Catt’s public activities, the very object of which was to convey his views to as wide an audience as possible.  The reports were compiled and retained for intelligence purposes, in accordance with the Code and the Guidance, with a view to an appropriate police response to a campaign marred by serious, persistent criminality and posing a significant public order problem.”

Irwin J agreed that there was no expectation of privacy here, applying the approach in Campbell v MGN [2004] UKHL 22.

At paragraph 70 he added that it was not easy to see “… how it can affect the engagement of Art 8.1 that the material is recorded by police officers as opposed, say, to journalists; or collated and held within the National Extremism Database, as opposed to a local history archive in the town where the demonstrations have been held.  The latter distinction was advanced by Mr Owen (“the entries were not recorded on any database…”).  The issue is not whether the individual concerned likes or dislikes the thought of the data being held by this or that body: the issue is whether a reasonable expectation of privacy arises.  In my judgment, it does not arise in respect of any of the information in this case.”

Irwin J did, however, add this observation at paragraph 70, which might give rise to interesting arguments in future cases on such issues:

“Different questions might arise if material recorded in that context were collated with material which was private in its nature.  That does not arise in this case.”

What about ongoing retention of this information?

Gross LJ thought it sensible for the police to review its retention of this sort of information when the Smash EDO campaign concludes, but he agreed with Irwin J’s comments at paragraph that 73:

“… even when the Smash EDO campaign ends, it may yet be justifiable to retain some or all of this information.  The picture here is that there are connections between this group and parts of the animal rights movement, active before this group was formed.  It may be a legitimate function of intelligence to keep records of this group after it has ceased to be active, the better to understand the risks associated with after-coming groups with overlapping membership.  To my mind, there is no expectation that a review at a suitable point in the future will conclude otherwise.”

Robin Hopkins

Statutory bars on disclosure: don’t construe too widely

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The Tribunal’s decision in Cubells v IC and Wrightington, Wigan & Leigh NHS Foundation Trust (EA/2011/0183) is notable for the approach taken to construing a statutory bar on disclosure for the purposes of s. 44 of FOIA. There are hundreds of bars. Usually, they were drafted prior to FOIA. Tricky issues often arise as to how widely the prohibition extends, especially in a FOIA world.

Mr Cubells’ mother died while in the care of the Trust. He complained to the Parliamentary and Health Service Ombudsman, who declined to investigate. Mr Cubells then made a request under FOIA for information passed by the Trust to the Ombudsman pursuant to his complaint, and internal Trust information about the complaint.

The Trust refused the request, relying on s. 44 of FOIA and the prohibition of disclosure imposed by s. 15 of the Health Service Commissioners Act 1993, which provides that:

“Information obtained by the [Ombudsman] or his officers in the course of or for the purposes of an investigation shall not be disclosed except-

(a) for the purposes of the investigation and any report to be made in respect of it…”

The Commissioner agreed – but the Tribunal did not. Interestingly, it allowed and considered submissions by Maurice Frankel of the Campaign for FOI in support of Mr Cubells’ appeal. Relevant points from those submissions included the following. The prohibition was designed to provide reassurance to those supplying information that no improper disclosure of that information will occur. The prohibition should not interpreted as meaning that any third party holding information which it happens also to have supplied to the Ombudsman was itself bound by the same prohibition. Otherwise, strange results would follow. For example, the Trust would be prevented from even sharing information which had been passed to the Ombudsman with a patient’s GP or another health authority into whose area the patient moved. On the ICO’s reading, the Trust would be bound indefinitely by a prohibition on disclosure apparently aimed not at the Trust but at the Ombudsman. That cannot have been what Parliament intended.

The Campaign for FOI also raised arguments under the European Convention on Human Rights: an outcome that resulted in a blanket prohibition on the disclosure of information about the medical treatment of a family member would breach Article 8 ECHR. Also, on the ICO’s reading, the prohibition would extend to a complainant as well – in other words, if a complainant passed information to the Ombudsman, they would thereafter be prohibited from disclosing it further. That would breach Article 10 ECHR.

Before the Tribunal, the ICO relied on the judgment of Mrs Justice Dobbs in R (on the

application of Kay) v Health Service Commissioner [2008] EWHC 2063 (Admin) in contending that the prohibition should regarded as extending to both those to whom information was passed by the Ombudsman as well as those from whom the Ombudsman obtained it.

The Tribunal disagreed. It distinguished Kay and concluded that the prohibition:

“should be interpreted as imposing a prohibition only on the Ombudsman and her staff. It may follow, from what we have said above, that the prohibition should continue to apply, or should be imposed, if the Ombudsman needs to disclose any of the information she has obtained to a third party. There is no inconsistency there. The information, once obtained during an investigation, should obviously not be released from the prohibition on disclosure just because it becomes necessary for the Ombudsman to disclose it to a third party. There is no logical reason, however, for the prohibition to be imposed on those holding information that has been shared with the Ombudsman. The profoundly unattractive consequences which Mr Frankel outlined demonstrate the absurdity of such an outcome.”

In reaching its conclusion, the Tribunal did not need to consider the ECHR arguments. Those arguments may well, however, be raised again in future cases.

Robin Hopkins

Section 40 FOIA, NCND and the public interest

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The requester (anonymised for the purposes of the decision) in Mr A v IC and The Health Professions Council (EA/2011/0223) asked for information about the response given by a named registrant to an investigation allegedly being carried out by the HPC into that registrant’s fitness to practice. The IC found that a ‘neither confirm nor deny’ response was appropriate, given that to confirm or deny (NCND) whether or not the HPC held the information requested would in and of itself disclose to the public whether there a complaint as to the registrant’s fitness to practise had been made. This would breach the first data protection principle. Section 40(5)(b)(i) FOIA therefore applied.

The Tribunal agreed. Curiously, it approached its task under section 58 FOIA thus: “The Tribunal does not take the IC’s decision again, rather its task is to consider the Decision Notice and to consider whether it can be impugned on legal grounds.”

Its decision turned largely on the usual features of a request for personal data: privacy implications, reasonable expectations and so on. The Tribunal’s decision does, however, contain a number of points of interest concerning the correct approach to section 40.

First, when judging whether, for section 40(5) purposes, confirmation or denial would breach any of the data protection principles, the appropriate reference point was disclosure to the public, not disclosure to the individual requester, given the overall wording of section 40 and the ‘motive blind’ approach to FOIA. The Upper Tribunal in All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner [2011] UKUT 153 (AAC) appeared to think otherwise, but its observation was obiter, and the Tribunal in the present case declined to follow it.

Secondly, it followed that for the purposes of condition 6(1) of Schedule 2 to the DPA (which refers to the “legitimate interests of the … third party or parties to whom the data are disclosed”), the appropriate reference point was again the public. Public rather than private interests are what count for condition 6(1) purposes.

Finally, the NCND provisions of section 40(5) do not appear in the list of absolute exemptions at section 2(3)(f) of FOIA. Does this mean the public interest test must be applied, even where – as the Tribunal had found – disclosure would breach the first data protection principle? The Tribunal agreed with the IC and the HPC that the answer is ‘no’. It followed Heath v IC (EA/2009/0020) in finding that the word ‘provision’ at section 2(1) FOIA is sufficiently ambiguous (as to whether it means a section of FOIA as a whole, or rather subsections) to admit of a purposive interpretation. In these circumstances, this allowed for data protection principles to be given primacy; no public interest question under section 2(2) of FOIA arose.

Robin Hopkins

Right to withdraw children from sex education classes

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Under s. 405 of the Education Act 1996, any parent has the right to withdraw a child from sex education at a maintained school up to the age of 19, except to the extent that the subject is covered in a science lesson that forms part of the national curriculum. On 5 November 2009, the Labour government announced that a proposed new bill, the Children Schools and Families Bill would include a provision that would remove a parent’s right of withdrawal once a child had reached the age of 15 years. The next day, the Family Education Trust made a FOIA request for all correspondence, notes and reports on this issue. This was refused. The proposed legislative change was abandoned when the Coalition government came to power in May 2010. The requester made the same request again, seeking only information created prior to May 2010, i.e. under the last government. The Department for Education again refused, continuing to rely on s. 35(1)(a) of FOIA (formulation or development of government policy). The requester’s appeal to the Tribunal concerned the public interest balancing test only. The appeal in Family Education Trust v IC and Department for Education (EA/2011/0244) was dismissed.

Three points are of interest as regards the public interest in maintaining the exemption for the formulation and development of government policy.

First, the appellant argued that there had been a lack of transparency about this decision. The Tribunal thought this a valid type of argument in general: it could “envisage cases in which public dissatisfaction with the rigour or comprehensiveness of a public consultation may add weight to the public interest in having information disclosed”. This did not, however, have purchase on the facts of this case.

Secondly, what of the fact that the relevant provision had been abandoned during the “wash up” of outstanding legislative business immediately before the May 2010 election? The appellant said this meant no ‘safe space’ was then needed, as policy development on this issue was no longer live (this was raised as a public interest argument, but it seems to me it could equally well be an argument against the engagement of s. 35(1)(a) in the first place). Again, on the facts this point did not have force, as the issue remained live after the election. The Tribunal did, however, add this note of caution:

“It does not follow, from our conclusion on this aspect of the case, that the period during which the “safe space” must be protected will be without limit. Some elements of the public debate on sex and relationship education may be perennially controversial but, in the event of a further information request being made at any time in the future, it will be necessary for the Department to consider the state of policy development at that time.”

Thirdly, the Department also argued that there was a public interest in protecting from disclosure contributions made by those consulted on policy matters in this area. The Tribunal gave this factor less weight, “in that those submitting views with the intention of influencing policy decisions by government should in most cases accept that the consultation process will be conducted in public view. We nevertheless accept that a degree of protection may be required in the context of a particularly contentious issue, such as the right of withdrawal and that, had we been inclined to order to disclosure generally, it might have been appropriate to make special provision for some elements of the consultation process.”

Robin Hopkins