Author: Robin Hopkins

TRIBUNAL’S DECISION IN DEPARTMENT OF HEALTH RISK REGISTER CASE

Posted on | by Robin Hopkins

The First-Tier Tribunal’s decision in Department of Health v IC, John Healey MP and Nicholas Cecil (EA/2011/0286 & 287) played a central role in the highly-charged political debates about the Health and Social Care Act. The Tribunal dismissed the Department’s appeal in part, but was unable to give written reasons before the Act entered the statute books. The Tribunal’s written reasons have now been promulgated and are available here:

2012_04_05; DOH v IC Healey final decision

Panopticon analysis will follow, but we thought some of our readers would like a hot-off-the-press look at the decision in the interim.

Robin Hopkins

IPCC v IC: IMPORTANT NEW DECISION ON VEXATIOUS REQUESTS AND COST OF COMPLIANCE

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The First-Tier Tribunal’s recent decision in Independent Police Complaints Commission v IC (EA/2011/0222) is very interesting and important. It concerns sections 14 (vexatious requests) and 12 (cost of compliance) of FOIA. The Tribunal has confirmed in resounding terms that cost alone can justify a section 14 finding, that a requester’s improper motive is relevant for section 14 purposes, and that the principle of aggregation of costs across separate requests is to be interpreted widely. On all these points, this decision will be welcomed by public authorities responding to unduly burdensome FOI requests.

The case concerned a requester with a keen interest in the work of the IPCC. The Tribunal said that his pattern of requests “focussed on no particular topic but appeared to range widely, even indiscriminately, over the whole spectrum of complaints that the IPCC investigates”. In particular, this case was concerned with two requests. One asked for IPCC managed investigation reports over a 3-year period (covering some 438 cases), the other was a multi-part request about a specific case which had been the subject of an earlier request. The IPCC had clearly had enough. It applied section 14 in refusing both requests.

While the Commissioner sympathised with aspects of the IPCC’s position (cost burden in particular), his overall conclusion – based on his five guiding questions for section 14 cases – was that the requests were not vexatious.

At Tribunal level, the IPCC relied on both section 14 and section 12. The Tribunal found in its favour on both counts.

Section 14 (vexatious requests)

On vexatious requests, the decision is worth quoting in some detail. At paragraph 14, it – like a number of Tribunals in recent cases – disapproved of an overly rigid application of the Commissioner’s five questions:

“The Tribunal considers that these requests were plainly vexatious when considered in the context of earlier requests or indeed in isolation. The criteria proposed in the ICO`s guidance are very helpful as a reference point. However, an approach which tests the request by simply checking how many of the five “boxes” are “ticked” is not appropriate. It is necessary to look at all the surrounding facts and apply them to the question whether the request is vexatious, a term not defined in FOIA but familiar to lawyers.”

It also found that cost alone can suffice for a section 14 finding – see paragraph 15:

“A request may be so grossly oppressive in terms of the resources and time demanded by compliance as to be vexatious, regardless of the intentions or bona fides of the requester. If so, it is not prevented from being vexatious just because the authority could have relied instead on s.12”.

This will be welcomed by those who find themselves unable to rely on section 12 due to the restricted list of activities which can be taken into account for cost purposes.

While cost can suffice regardless of motive, the Tribunal was emphatic that motive is relevant for section 14 purposes. In trenchant terms, it urged responsible use of FOIA (see paragraph 19):

“Abuse of the right to information under s.1 of FOIA is the most dangerous enemy of the continuing exercise of that right for legitimate purposes. It damages FOIA and the vital rights that it enacted in the public perception. In our view, the ICO and the Tribunal should have no hesitation in upholding public authorities which invoke s.14(1) in answer to grossly excessive or ill – intentioned requests and should not feel bound to do so only where a sufficient number of tests on a checklist are satisfied.”

In the present case, the Tribunal was not convinced of the requester’s good faith, and it considered his requests to be “not just burdensome and harassing but furthermore wholly unreasonable and of very uncertain purpose and dubious value, given the undiscriminating nature of the first request”. It had no hesitation in finding that section 14 had been correctly applied to the first request.

Section 12 (cost of compliance)

This provision was relied upon by the IPCC for the first time before the Tribunal. Interestingly, the Tribunal interpreted the Court of Appeal’s judgment on the late reliance issue (under the EIRs) in Birkett as meaning that the IPCC could rely on section 12 of FOIA late as of right – despite the Upper Tribunal’s rather different approach in APPGER (which is not referred to in this decision).

It was agreed that the cost limit was reached for the first request. The issue was whether section 12 applied to the second request. This turned on whether the costs of complying with that request could be aggregated, ie taken together with those for the first. Aggregation is provided for under the Information and Data Protection (Appropriate Limits and Fees) Regulations 2004. By regulation 5(2)(a), costs can be aggregated for requests which “relate, to any extent, to the same or similar information”. The Tribunal agreed with the IPCC that the requests in this case came within that provision. It said as follows (paragraphs 25-26):

“The second request was for specific details of a report which was a subject of an earlier request than those with which this appeal is concerned. It was the same kind of report as the 438 reports requested in the first request. We agree with the IPCC that the wording of Regulation 5(2) (a), for good reason, requires only a very loose connection between the two sets of information, hence the insertion of “to any extent” and “similar”. The information covered by the second request was quite obviously very similar in character to that described in the first. They were simply different reports.”

From a public authority perspective, this broad approach will be a welcome departure from the more restrictive analysis in cases such as Benson.

For a different take on the IPCC case, see this post from the ever-incisive FOI Man.

Robin Hopkins

COMPLAINT AGAINST SENIOR COUNCIL OFFICER: TRIBUNAL OVERTURNS VEXATIOUS REQUEST FINDING

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In many cases concerning s. 14(1) of FOIA – vexatious requests – a relevant factor is that the requester has complained about the conduct of an employee, but that complaint has not been upheld. Ensuing requests are often considered by some to be harassing and obsessive. The Tribunal has recently overturned a decision notice in which the Commissioner had agreed with the local authority on those points.

Conway v IC (EA/2011/0224) concerned a requester who had been in communication with the Council for some years, in the course of which he had raised concerns that the role of “Senior Responsible Officer” and the “Section 151 Officer” were held by the same individual, which, in his view, represented a conflict of interests. His complaint to the Chartered Institute of Public Finance & Accountancy was not upheld. He had sight of the redacted version of its investigation report. He then contacted the Council with a number of detailed questions about its input into the Institute’s investigation.

The Council refused the request, relying on s. 14(1). The Commissioner agreed. The Tribunal did not.

The Tribunal found that “harassing” should be given its ordinary meaning, that is, to disturb persistently, bother continually, pester or persecute. In this case, the Council officer concerned was very senior; the subject matter concerned a high profile project that involved many millions of pounds of public money over 10 years. This had attracted a high degree of public interest in the press and on the internet. The Tribunal found that, in such circumstances, the public is likely to raise questions, and “such questions may be numerous and may on occasion be repeated”. It was not satisfied that a “harassing effect” had been demonstrated. The present case was, in the Tribunal’s view, entirely unlike the leading s. 14 case of Rigby v IC and Blackpool NHS Trust [2011] I Info LR 643.

The Council had also argued that the requester’s complaint giving rise to the Institute’s investigation constituted harassment of the senior Council officer. The Tribunal disagreed: it found “no evidence of a personal attack or comments of a provocative nature made by the Appellant against the named council employee”.

The Tribunal also disagreed that the request was obsessive: the request was concise and precise, and arose out of the Institute’s report which had recently been received – in those circumstances, the Tribunal could not see any relevant context or history which would demonstrate obsessiveness.

The Tribunal also observed that “whether the request creates a “strain on resources”, that is not relevant to the question of whether it is vexatious. If the Council wished to argue that they ought not to be required to comply with the request on this basis, then it ought to have relied on section 12 FOIA. It did not do so.”

The Council was ordered to deal with the

Robin Hopkins

LOCAL AUTHORITY’S LEISURE CENTRE BUSINESS PLAN: RELIANCE ON S. 43 FOIA UPHELD

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Local authorities are frequently asked to disclose information about their business arrangements with private sector partners: contracts, tender documents, business plans, financial models and the like. In Visser v IC and LB Southwark (EA/2011/0188), the appellant had requested the most recent business plan approved by the Council for Fusion Ltd, a leisure centre management company with whom the Council had contracted. The Council’s reliance upon s. 43 of FOIA – commercial interests – had been upheld by the Tribunal. While the case turned on the clarity and persuasiveness of the evidence of commercial harm, a few general observations are worthy of note.

The first concerns the way the Council had approached its disclosure decision. The Council had discussed the matter with Fusion, and the parties had disagreed on whether disclosure was appropriate. The Council had concluded that, since public money was being expended, the amount that the Council was paying Fusion ought to be in the public domain and open to scrutiny to ensure that public money was being used effectively. This was duly disclosed. However, the Council accepted Fusion’s argument that disclosing the profit and loss schedule would be damaging. It considered that the profit and loss account demonstrated Fusion’s approach and methodology to determine income and managing risks including its ratios and allowances for all expenditure items including staff costs, overhead, surplus and contingency.

The passage of time is often a pivotal factor in commercial sensitivity cases. By the time of the request in this case, the disputed information was two years old. Having considered the evidence, however:

“The Tribunal was satisfied that there was a continuity of approach to [Fusion’s] budgeting and business processes by Fusion which would be revealed by the disclosure of the 2007/8 business plan. This knowledge would be of value to Fusion’s competitors in future tendering processes relating to similar facilities and services. It therefore concluded that the age of the information was largely irrelevant, the commercial sensitivity of this specific information did not diminish over time and so the information remained commercially sensitive.”

The Tribunal also had this to say on the importance of preserving fair competition:

“The tribunal was satisfied that the Commissioner was right to emphasise the importance of the functioning of a fair market in this case. The evidence before the tribunal was that the provision of management services for leisure facilities owned by public authorities is a competitive market with a significant number of strong players within it. If the commercial secrets of one of the players in the market were revealed then its competitive position would be eroded and the whole market would be less competitive with the result that the public benefit of having an efficient competitive market would be to some extent eroded.”

Lastly, it agreed that there was a significant public interest in maintaining commercial confidences, as identified in Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council and others [2010] EWCA Civ 1214, [2011] BLGR 95 CA.

Robin Hopkins

REFUSING STUDENT VISAS DUE TO WMD CONCERNS: NEW NATIONAL SECURITY DECISION

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Mahmud Quayum (on behalf of the Camden Community Law Centre) v IC and FCO (EA/2011/0167) is the second First-Tier Tribunal decision in recent weeks on section 24 of FOIA (national security). The other is Summers, on which see Anya’s post here. In both cases, the Tribunal has found the exemption to be engaged and the public interest to favour its maintenance.

Quayum concerned the Academic Technology Approval Scheme. The Scheme, introduced in November 2007, aims to prevent the spread of knowledge and skills useful in the proliferation of weapons of mass destruction. All students from outside the EEA and Switzerland who wish to embark on certain designated post-graduate courses must apply to the FCO’s Counter Proliferation Department for an ATAS certificate before they apply for a student visa. The requester expressed concern that, in some cases, the applicant’s nationality could count decisively against them in a manner that breached equalities legislation. He requested details of refused applications, broken down by applicants’ nationalities and proposed study subjects. He argued that unsuccessful applicants lacked adequate rights of appeal, that much information about the scheme (as well as about countries who were a particular concern from a WMD perspective) was already public, and that non-disclosure would foster “an atmosphere of secrecy over openness”. As usual with s. 24 cases, those arguments went both to the engagement of the exemption and to the public interest.

The Tribunal found those arguments insufficient in both respects. The Equality Act 2010 contains an exemption for national security matters (s. 192). While there was no formal right of appeal, unsuccessful applicants could seek a review of refusals; this dispelled concerns about a “surreptitious mechanism”. The information in the public domain was materially different to that which had been requested. The Tribunal recognised that disclosure would assist in the transparency of an arguably controversial Scheme, but found this to be outweighed by the risk of disclosure undermining the effective operation of an important national security measure, including by discouraging universities (who risked being identified from the disputed information) from co-operating with the Scheme.

Regarding the approach to s. 24, the following extracts from the decision are worth noting:

“… national security is predominantly the responsibility of the government and its various departments. The Second Respondent has contended, correctly in the Tribunal’s view, that the Tribunal must at least initially afford due weight to what is regarded as the considered view of such departments, even though the exemption entails an element of public interest and the balancing test. In particular, and again the Tribunal endorses this approach, particular weight should be afforded to the views of the government or its appropriate department with regard to its or their assessment of what is required to safeguard national security in any given case and the prejudice likely to result from disclosure” (paragraph 43), and

“.. the Tribunal is equally firmly of the view in accepting the contention advanced by the Second Respondent that the particular weight to be applied in favour of maintaining the exemption will be proportionate to the severity of the perceived threat. Thus, to take the point which is in issue here it can with some justification, in the Tribunal’s judgment, be argued that since the proliferation of WMD would constitute one of the severest threats to the security of the state, given its potential wide-ranging effect, so must the countervailing public interest in disclosure be a weighty one, such that disclosure becomes a viable option. The Tribunal stresses that nothing that has just been said in any way converts the present exemption into an absolute one” (paragraph 44).

Finally – as is often the case of late – the requester sought to rely on Article 10 ECHR. Interestingly, the Tribunal in this case observed that Article 10 would make no difference to the analysis, given the checks and balances built into the meaning of s. 24 and the public interest test.

KENNEDY V IC AND CHARITY COMMISSION: COURT OF APPEAL DECIDES

Posted on | by Robin Hopkins

A quick update on today’s main FOI development: in May 2011, the Court of Appeal heard the case of Kennedy v IC [2011] EWCA Civ 367 (see the backstory here). It remitted the matter to the First-Tribunal to answer this question:

“Whether s.  32(2) of FOIA should in the circumstances be read down pursuant to s. 3 of the Human Rights Act 1998 and Article 10 of the ECHR, so that the exemption that it provides from disclosure of information ends upon the termination of the relevant statutory inquiry.”

In its “report” to the Court of Appeal in November 2011, the FTT answered yes to the above question (see here).

The matter returned to the Court of Appeal today. The Court decided that last week’s Supreme Court judgment in Sugar v BBC [2012] UKSC4 (analysed here) was determinative on the Article 10 point. It found for the Respondents, but gave leave to appeal to the Supreme Court. The Kennedy matter may therefore not yet have run its course.

No judgment from the Court of Appeal just yet – analysis to follow on Panopticon as soon as the judgment is available.

Robin Hopkins