Author: Robin Hopkins

IS FOIA ALWAYS MOTIVE BLIND? TRIBUNAL DECISION ON SEX OFFENDERS’ SENSITIVE PERSONAL DATA

Posted on | by Robin Hopkins

In Colleen Smith v IC and Devon & Cornwall Constabulary (EA/2011/0006), the requester asked for information on the number of school teachers in specified towns who had been investigated, cautioned and charged under the Sexual Offences Act 2003 between January 2005 and November 2007. The Constabulary eventually relied on the personal data at section 40(2) FOIA.

The Commissioner found that, where the answer was “zero”, this was not personal data and should be disclosed; otherwise, the information could be withheld under section 40. The Tribunal has upheld this decision, albeit for different reasons.

This decision is worth noting on a number of grounds.

First, this is a good illustration of the approach from Department of Health v IC [2011] EWHC 1430 (Admin) (the “abortion statistics” case – see my post here) to the definition of “personal data” in the context of apparently anonymous statistics. Here the Tribunal considered both the disputed information concerning numbers of alleged sex offenders and the “other information” held by the Constabulary, and was satisfied that living individuals could thereby be identified. Furthermore, for obvious reasons, this constituted “sensitive personal data”.

Secondly, the Tribunal turned to fairness of disclosure. As regards reasonable expectations of data subjects, it concluded (for confidential reasons, and notwithstanding that one can generally assume sensitive personal data will not be disclosed) that the data subjects in these circumstances could have had no reasonable expectation that these statistics would not be disclosed at the relevant time, i.e. late 2007.

Thirdly, the Tribunal also disagreed with the Commissioner that disclosure created a risk of harm to the suspected offenders at the relevant time.

Fourthly, the Tribunal considered whether a condition from Schedule 3 of the DPA 1998 would be met. It did so by asking itself whether paragraph 3 of the Schedule of the Data Protection (Processing of Sensitive Personal Data) Order 2000 applied. That concerns, inter alia, disclosure of information concerning alleged unlawful acts for “special purposes” such as journalism. Disclosure must, however, be “in the substantial public interest”.

The “special purpose” of journalism highlights the following important reminder. It is by now axiomatic that FOIA is “motive blind”. However, the cases of Ferguson v IC (EA/2010/0085) (on which, see my post here) and Brett v IC (EA/2008/0098) imposed an important gloss on that principle. The Tribunal in Ferguson summed up the point thus:

“It is often stated that requester’s rights under FOIA are purpose-blind, in the sense that an applicant’s personal identity and motives for requesting information are irrelevant. This generalisation can mislead. There are some cases in which the applicant’s identity and motives may shed light on the public interests involved. More significantly, the applicant’s identify and motives can be of direct relevance to the exemption in FOIA s40(2) because of the provisions of DPA disclosure and to the interests pursued by the persons to whom the disclosure would be made. For example, a journalist or author may be able to outflank the s40(2) exemption by reliance upon DPA Schedule 3 condition 10 and paragraph 3 of the Schedule to the Data Protection (Processing of Sensitive Personal Data) Order 2000, where it is in the substantial public interest that wrongdoing should be publicised.”

The Tribunal in Smith agreed. The appeal, however, failed because disclosure of this information would not be “in the substantial public interest”.

The Tribunal thought it “reasonable to assume… that the public had an ongoing need for reassurance as to the level of activity by sexual offenders in particular localities and transparency and accountability in what the police were doing about it”. The threshold of “substantial public interest”, however, required a certain level of urgency in the need to reassure the public. That threshold was not met here.

In reaching this conclusion (which the Tribunal described as “finely balanced”), the Tribunal took into account: the evidence as to the machinery for the monitoring and supervision of sex offenders in the community; the risk of vigilantism, which can force suspects to “disappear”, which in turn increases the risk of reoffending. It added that:

“It was not enough, in the Tribunal’s view, that sexual offences by teachers or others in positions of trust was a matter of keen interest to the public. This, on its own, did not make disclosure “in the substantial public interest”. It was the Tribunal’s task to weigh against the wholly understandable concern felt by members of the public on this subject, the detrimental effects that disclosure could have.”

The upshot was that, although disclosure would be fair, section 40(2) took effect because no Schedule 3 condition would be met.

Robin Hopkins

KEY POINTS FROM THE CAMDEN ‘SQUATTER’S ROAD MAP’ JUDGMENT

Posted on | by Robin Hopkins

In Voyias v IC and LB Camden (EA/2011/0007), Camden Council has been ordered to disclose to a former member of the Advisory Service for Squatters lists of empty properties meeting certain descriptions. The decision has been controversial: see for example Housing Minister Grant Shapps’ condemnation of the judgment as a ‘squatter’s road map’. I set out below some of the key points from the decision.

Scope of the request

Two types of information were plainly within scope, namely lists of the Council’s own records of empty Council-managed properties, and properties owned by non-individuals which had been confirmed as empty by the Council.

There were two additional categories of information at issue. Here the Tribunal drew the following distinction, based on the wording of the request. On the one hand, the requester had asked about properties which were “listed” as being of a certain description: this information (found on the Council tax register) was in scope, and it did not matter whether or not the facts recorded in that register were accurate.

On the other hand, the requester had also asked for information about “empty” properties: this was not in scope. It was to be construed as meaning “actually empty” at the date of the request, and here the relevant records were not accurate.

Approach to the evidence

The Appellant argued that the IC’s reliance on material he had not seen was a breach of Article 6 ECHR. The Tribunal disregarded this argument, as an appeal before a Tribunal is a complete rehearing of the matter.

The next question concerning the evidence was this: how relevant were other decisions dealing with similar issues, but in the context of different local authorities?

The Tribunal was willing to take into account evidence from other Tribunal decisions dealing with general issues relating to squatting (LB Bexley v England and IC (EA/2006/0060 & 66)). The evidence was set out in that decision, and was thus available to the Appellant. Further, “it would be a waste of time and money to have to rehear such evidence in each similar case”. In contrast, the Tribunal declined to have regard to the evidence relied on in another, similar decision notice issued by the IC (concerning LB Tower Hamlets), as much of that evidence was case-specific and was not cited in detail in that publicly-available decision.

Camden’s own past disclosures of such information were not of assistance to the Tribunal, as circumstances change over time. Nor were other such disclosures by other local authorities of assistance.

Engagement of section 31(1)(a) FOIA

The IC found that s. 31(1)(a) FOIA (prevention of crime) was engaged. The Tribunal agreed, but based on different conclusions as to the evidence.

The Tribunal was satisfied that the relevant prejudice was made out as regards organised squatting. The Tribunal was satisfied that disclosure was likely to cause an increase in the number of properties squatted (even if the number of squatters remained the same) as the list of properties would add to the list of available premises known to a motivated and organized squatter. It was also satisfied that a significant proportion of entries into empty premises involve some criminal damage; it therefore concluded that organised squatting is linked to certain types of criminal activity.

The Tribunal was not satisfied, however, that disclosure of the list of properties would influence the behaviour of disorganised or opportunistic squatters, or those engaged in more systematic criminal behaviour involving drug use.

The public interest test

The IC found the public interest to favour the maintenance of the exemption. The Tribunal disagreed. Certain public interest factors were not relevant, and while there were strong factors on both sides, the balance favoured disclosure.

The Tribunal did not consider that any perceived social disadvantage of living next door to squatters, or the costs of the eviction of squatters were matters that the Tribunal was entitled to take into consideration, since squatting is not illegal. It did, however, take into account feelings of security, and the additional cost to the public purse (preventing crime, repairing criminal damage and so on) as inherently strong factors.

The Tribunal’s assessment of the weight to be given to the likely increase in crime is of interest. First, it found that disclosure would not lead to the majority of the crime associated with empty properties (crack-dens and so on). Further, in considering the other sorts of crime that would arise (criminal damage, for example), “the Tribunal takes into consideration the nature of the crimes that it considers would follow disclosure and finds that they are at the lower end of victim impact and that in some cases the presence of organized squatters itself will prevent the use of the premises for more socially disruptive crime (eg use as a crack house).”

Crucially, it found there to be a very strong public interest in bringing empty properties into reuse:

“The Tribunal is satisfied that publication of this list would bring a proportion of the void properties back into use earlier than would otherwise be the case and that consequently this is a strong public interest factor in favour of disclosure… The Tribunal is satisfied that there is already a lively and informed debate in this area, but, recognises that specific examples provide colour and are important in increasing public understanding and local involvement. It puts the specific empty properties into the limelight, may be an added tool to incentivize owners to reuse their properties and would enable the general public to walk up to a ‘void’, and see for themselves what is going on, whether it is being worked on, or has been left in limbo”.

It was this factor which outweighed the increased risk of low-level criminality, and which tipped the scales in favour of disclosure.

Robin Hopkins

DOCUMENT CONCERNING SEALING OF ROYAL WILLS EXEMPT UNDER S. 37 FOIA

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Section 37 FOIA (communications with Her Majesty, with other members of the Royal Family or with the Royal Household) was originally a qualified exemption. It has recently been elevated to an absolute one. Brown v IC and Attorney-General (EA/2011/0002) is a new tribunal decision under the old (qualified exemption) regime. It is worth noting for the approach to this exemption, given how rarely it has (until now) surfaced in FOIA litigation.

The case concerned the process for dealing with Royal Wills – in particular the manner in which Royal Wills come to be sealed such that they are not available for public inspection without an application being granted by the Family Court. The Tribunal noted that the primary objective of this practice is the protection of the privacy of the Sovereign. The Appellant, who believes himself to be the illegitimate son of the late Princess Margaret, requested a copy of what had been described orally during earlier court proceedings as a “Practice Direction in respect of the handling of Royal Wills”. The Attorney-General refused, relying on section 37 and the public interest. The Commissioner – and now the Tribunal – have upheld the refusal. The Tribunal found, inter alia, that the practice for sealing Royal Wills raises no constitutional issues concerning the separation of powers.

No analysis and commentary from me on this one, given my involvement in the case (I appeared for the Commissioner, with Jonathan Swift QC for the Attorney-General), but the decision can be found here.

VEXATIOUSNESS IN CONTEXT – ‘RATCATCHER’ AND OTHERS

Posted on | by Robin Hopkins

There have been two Tribunal decisions this week on s. 14 FOIA – vexatious requests. In both cases, the public authority and the Commissioner had found that s. 14 applied because of the context of the particular request. In one case, the Tribunal agreed: the context involved the requester acting in concert with others in pursuing a targeted campaign of requests. In the other, the Tribunal found that the Commissioner and the public authority had placed too much weight on the context, and had given insufficient consideration to the particular request.

The Appellant in Duke v IC and University of Salford (EA/2011/0060) had been dismissed by Salford University. He contended that his requests for information had a serious purpose connected to a forthcoming Employment Tribunal. Between the end of October 2009 and early February 2010, the University received over 100 requests for information – submitted by 13 individuals – all but three of which were submitted via the WhatDoTheyKnow.com website. To put this pattern in context: during the whole of 2008, the University had received 117 requests submitted by 78 different requestors. The Appellant and others distributed satirical literature and maintained websites critical of the University. One of these was the ‘Ratcatcher’ blog. The University had sought disclosure of the author’s identity in the USA; in subsequent defamation litigation in the UK, the Appellant conceded that he was the author.

The University considered the requests to be a concerted attempt to disrupt its activities by a group of activists undertaking a campaign – effectively a Denial of Service attack in internet parlance. The Commissioner agreed. He also found that some of the requests to the University had been made under pseudonyms.

The Appellant had objected to the Commissioner’s holding of a meeting with the University prior to the issuing of the decision notice. On this, the Tribunal commented that:

“The decision of the IC to meet with the University, while it may be unusual, is within the IC’s powers of investigation. The Tribunal declines to characterise this as creating an inequality of arms that created any unfairness in respect of the Appellant. The IC was, after all, seeking to assess whether the Appellant had been characterised unfairly as vexatious.”

Given the context of the Appellant’s requests and his concerted campaign together with others, the Tribunal had no hesitation in upholding the IC’s findings. There is some further commentary on FOI Man’s blog here.

In contrast, the Tribunal in Gardner v IC and Nottingham City Homes Limited (EA/2011/0054) allowed the appeal, finding that the Appellant’s request had not been vexatious.

The Appellant has been a tenant of Nottingham City Council for more than 30 years. He requested information about public expenditure on neighbouring council flats; his belief was that more money had been spent on the upkeep of other properties than on his. The Commissioner found that, given the context and history of the requests, the Appellant had “stepped over the fine line between persistence and a request being obsessive and unreasonable”.

The Tribunal disagreed. It found that there had been too much focus on the history of relations with the Appellant and a resultant failure to consider the particular request – which the Tribunal considered plainly had a serious purpose – on its merits.

Interesting, the Tribunal did accept that the Appellant’s requests tended to have a harassing effect. In one letter, the Appellant had said this: “Beware the Ides of March, I will have my Retribution.” Nonetheless, this was insufficient to engage s. 14 in these circumstances.

CONSTRUCTION WORKER ‘BLACKLISTING’ DATABASE – NEW TRIBUNAL DECISION

Posted on | by Robin Hopkins

The Tribunal has this week given its decision in Ritchie v IC (EA/2010/0041). The case involved a “blacklist” which had been compiled and maintained by an organisation called the Consulting Association. The database consisted of the names and personal details of workers in the construction industry who had engaged in trade union or other activities in furtherance of employment rights. A number of major companies in the construction industry paid annual subscriptions and, as potential employers, were able to access individual records for a fee. The ICO investigated the matter, successfully prosecuted the proprietor of the Consulting Association and seized the database. It invited potentially affected workers to make subject access requests whereby they could receive information about them held in the database.

The General Secretary of the union UCATT subsequently requested from the ICO all files containing references to a number of named trade unions. This was one of the (relatively rare) cases in which the ICO was both the public authority and the regulator.

The ICO refused the request, relying on section 44 FOIA (disclosure prohibited under an enactment) in combination with section 59(1) DPA, which (to paraphrase and summarise) prohibits disclosure of information obtained by the Commissioner “under or for the purposes of the Information Acts” unless there is “lawful authority” for that disclosure. The Tribunal has upheld that refusal.

No commentary from me on this one, given my involvement in the case. I shall, however, point out that the decision covers the following issues: scope of the request; whether information is “publicly available”; the meaning of “lawful authority” under section 59(1) DPA; whether requests by unions are made with the “consent” of members; whether disclosure would be “necessary in the public interest”; personal data; Articles 9, 10 and 11 of the ECHR.

Robin Hopkins

DRAFT JUDGMENTS TO BE CIRCULATED WITH CAUTION: CRICKET UMPIRES CASE REMITTED TO TRIBUNAL

Posted on | by Robin Hopkins

The decision of the Upper Tribunal (UT Judge Wikeley) in IICUS v IC and BIS and Ray [2011] UKUT 205 (AAC) (available here: GIA 0384 2011-01) begins by observing that “the world of cricket is no stranger to the law courts”. It goes on to explain the controversy surrounding the creation of the International Institute of Cricket Umpiring and Scoring (IICUS) by individuals who had been expelled, barred or suspended from the Association of Cricket Umpires and Scorers (now known as the ECB Association of Cricket Officials). Mr Ray, a member of the latter body, raised concerns about IICUS, its status as an “Institute”, its finances and its company accounts. Companies House (falling under the Department for Business, Innovation and Skills for FOIA purposes) investigated the complaint and informed Mr Ray that it was satisfied that the information provided by IICUS was not misleading. He requested the evidence submitted by IICUS in response to his earlier complaint. Companies House refused, relying on sections 41 and 43 FOIA. The Commissioner agreed on section 41.

The Tribunal then considered the matter on the papers. IICUS had not been joined as a party. The Tribunal, however, circulated its draft judgment to the parties (other than the requester) – and also to IICUS, so as to allow it “to make any representations they wish and the Commissioner and DBIS to draw to our attention any factual errors or inappropriate disclosures”.

IICUS asked to be joined and submitted representations. The Tribunal joined it “for the purpose of making representations in relation to the draft decision”. It found for the requester, and ordered disclosure. IICUS’s appeal to the UT was supported by the Commissioner, given the unusual procedural history.

The UT has found that the Tribunal’s decision involved a breach of rule 32(1) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and of the principles of procedural fairness. That rule, when read with rule 1(3), requires the Tribunal to hold an oral hearing unless each party has consented to the matter being determined without a hearing and the Tribunal is satisfied that it can properly determine the issues without a hearing. Here, the UT found, IICUS had been joined (albeit after the paper hearing) and had not consented to the matter being determined without an oral hearing. On that procedural basis alone, its appeal was allowed and the matter is remitted for a second innings in the Tribunal.

The circulation of judgments in draft form is, of course, not uncommon. Those involved in litigation where such circulation is contemplated may wish to bear in mind UT Judge Wikeley’s counsel of caution (see paragraph 31):

“In this context it is important to take heed of the warnings of the superior courts as to the procedure to be adopted when draft decisions are issued.  As Smith L.J. observed in Egan v Motor Services (Bath) Ltd. [2007] EWCA Civ 1002, “circulation of a draft is not intended to provide counsel with an opportunity to re-argue the issues in the case” (at paragraph 50).  The same point was made by the House of Lords in Edwards v Environment Agency [2008] UKHL 22.  Furthermore, in Robinson v Bird (2004) The Times, January 20, May LJ specifically warned as follows:

“It scarcely needed saying that judges should not send draft judgments to the parties’ legal representatives in accordance with the practice statements if they themselves perceived a risk that they might want to change them materially before they handed them down.”

In May, I posted a summary of a Court of Appeal case – Kennedy v IC and Charity Commission [2011] EWCA Civ 367 – in which submissions following the circulation of the draft judgment had made all the difference. The submission there was that – because the draft judgment described the disputed statutory provision as ambiguous – questions of interpretation in accordance with the Human Rights Act 1998 needed to be considered. Such circumstances, it would seem, provide a legitimate “opportunity to re-argue the issues in the case”.

Robin Hopkins