Author: Robin Hopkins

“ENVIRONMENTAL INFORMATION” INCLUDES NAMES OF OFFICIALS DRAWING UP MONUMENTS POLICY

Posted on | by Robin Hopkins

Omagh DC v IC (EA/2010/0163) is the newest decision on the scope of “environmental information” under the EIR. It is notable both for the broad interpretation it gives to the “landscape” element of that definition, and for the relevance the Tribunal ascribed to the purpose of the request.

The case concerned a memorial on Council-owned land commemorating IRA members who died during the hunger strikes of 1981. The Council undertook an Equality Impact Assessment on its policy on “Disposal of Land for the Purpose of Erecting or Retaining a Memorial or Monument”. The requester sought the names, departments and job titles of those Council officials responsible for that Assessment, as well as the Council’s letter to the Equality Commission.

The issue for the Tribunal was whether this should have been dealt with under FOIA or the EIR. The Council argued that the applicant’s queries were not about the environment, but about a process being used to inform a consultation on a Council decision. The Commissioner contended that the requested information was “environmental information” within the meaning of reg. 2(1)(c) EIR because the assessment was a “measure which is likely to affect the land and landscape”, and that details of those officials responsible for drafting the policy were not so far removed from this “measure” as not to have an effect on it.

The Tribunal has agreed with the Commissioner. It accepted that the Assessment could be fairly described as an investigative step prior to a potentially controversial final decision affecting or protecting the landscape, and also that the scope for “visual as opposed to cultural impact is capable of being regarded as minor” in this case. Nonetheless, it observed that under reg. 2(1)(i), the test is not only whether a measure affects or is likely to affect one of the listed elements but also whether a measure is “designed to protect” those elements; therefore, whether a change is likely is not determinative. The title of the Assessment implied a possible outcome preserving the status quo. The Tribunal was clear that:

“Only the connection with an impact on land or landscape links the concerns in this case into environmental rights. Had the memorial in question been inside a public building, the landscape context would have been absent but the cultural concerns would not have been different”.

Interestingly, although it recognised the “motive blind” principle, the Tribunal took the view that motive could be relevant not to the decision on whether or not to disclose the information (with which the Tribunal was not concerned) but to determining whether or not information is “environmental”:

“… both context and the motive of the requester are potentially relevant considerations. If the requester appeared to be wholly unconscious of an environmental aspect or import to his request, and stressed other reasons for his interest in the information, he could not be said to be denied environmental access rights if his request is not considered under EIR… If the Complainant had shown no evidence of concern about landscape impact, or if the allocation of the issue to one framework rather than the other could have led to a material difference in treatment of the substantive issue, these would have been relevant factors to take into account”.

Robin Hopkins

SOME REFLECTIONS ON SUPER-INJUNCTIONS AND PARALLEL UNIVERSES

Posted on | by Robin Hopkins

The Committee on Super-injunctions, established in April 2010 in the wake of the Trafigura and Terry cases, was made up largely of judges and practising lawyers, but also included legal representatives from the Guardian and Trinity Mirror. Nonetheless, the media have not received its report, “Super-Injunctions, Anonymised Injunctions and Open Justice” warmly. The Independent has commented on the “absurdity” of the current situation, while the Daily Mail called the report “a chilling exercise in judicial activism, self-delusion and – most worrying – a constitutional attack on Parliamentary sovereignty and free speech”.

Tensions have escalated since the publication of the report on Friday, and reached a head today. Footballer “CTB” (as his injunction order refers to him) has obtained a disclosure order requiring Twitter (based in California) to divulge the names of the “persons unknown” (resident, of course, in jurisdictions unknown) who have referred to his identity in their tweets. Scotland’s Sunday Herald flouted the order of the High Court of England and Wales in publishing the player’s name. This has apparently prompted calls for the Attorney-General to take action against the journalist responsible, a course of action which in the view of SNP leader Alex Salmond would be unwise. Mr Salmond neatly articulated the jurisdictional (and devolutionary) difficulties of this issue, by arguing on this morning’s Today programme that anyone wishing an injunction to be effective in Scotland should apply to a court in Scotland. Fred Goodwin was “outed” in the Lords last week, and John Hemming MP has moments ago outed CTB himself.

And so it goes on. It has been announced in the past few minutes that a joint parliamentary committee will be established to consider privacy law reform. Against this backdrop, I set out a few (rapidly evolving) thoughts on four of the thorny issues raised by the report, the accompanying press conference given by Lords Neuberger and Judge and the general aftermath. On each of these four issues, my sense at the moment is that matters may develop in favour of openness rather than privacy – despite the failure this afternoon to overturn CTB’s injunction.

First though, a synopsis of the report’s thrust and limited terms of reference.

The report: procedure, not substance

As regards its subject matter, the committee distinguished between super-injunctions (where the order states that neither the named applicant’s private information nor the existence of the order can be published), anonymous injunctions (the order does not name the applicant or parties involved) and “so-called hyper-injunctions” (the order prohibits individuals from discussing matters with third parties).

It sees no legal barrier to any of these types of injunction taking effect. It thinks all such injunctions are very rare, but recommends that statistics be maintained on the granting of injunctions so that their prevalence can be monitored.

The report proposes a tidying up of the procedure for obtaining these injunctions. The committee gives a firm “no” to the use of specialist judges to hear these kinds of application. It says that Practice Guidance should be issued, which should include model orders and the process for expediting appeals against the granting of such orders.

Overall, however, the report is not about substantive law reform: that is a matter for parliament. In fact, it is now an urgent matter for parliament. In my view, some of the key issues to be considered are as follows.

Issue 1: media presence at injunction hearings

Parliament’s committee will, like the reporting committee, take Article 10 ECHR very seriously (for a very recent example of Article 10 affecting the interpretation of FOIA, see my post here). The report observes that “it will be a very rare case where advance notice of such an application to media organisations, which are likely to be affected by any order, can be justifiably withheld”. It proposes that the press be allowed to attend application hearings – bound of course by confidentiality agreements and non-disclosure orders. This would allow the media to be properly informed of the matters on which they may not report, and would also equip them to appeal against orders where they deem this appropriate.

This is doubtless a step in the right direction in terms of Article 10. As the committee recognises, however, there are real practical difficulties with the proposal. First, interim injunction hearings are often so rushed that there is no real prospect of a blanket invitation to the media. Secondly, how does one determine who the “media” are who are allowed to attend such hearings? As Lord Judge put it “we know who you [the media attending the release of the report] are, we’re familiar with you, but someone comes along and says, “I’m from the Argyll and Orkney Express” but how do we know? Do we really expect to have cards issued? Can you imagine the bureaucracy?”.

Part of the problem is this: either anyone with an interest in reporting the matter is allowed to attend, or only the “establishment” (this is my term, but seems the sentiment reflected in Lord Judge’s rhetorical question) is allowed, even though the aim is to make everyone subject to the order, establishment or not. The former option exponentially increases the risk of leaks and disclosures on Twitter. The latter option draws distinctions which are impracticable and problematic in terms of Article 10 and fairness in a broader sense. My view is that the former option will prevail, and that we will see a very broad net of media attendees at future super-injunction hearings. This in itself might serve as a deterrent to making such applications in the first place.

Issue 2: Twitter and other “modern technology”

There has been a flexing of judicial muscle as regards Twitter. Though he described “modern technology” as “totally out of control”, Lord Judge took hope from efforts to combat online child pornography. He said this:

“Are were really going to say that someone who has a true claim of privacy, perfect well made, which the media and newspapers can’t report, has to be at the mercy of someone using modern technology? At the moment that may seem to be the case but I am not giving up on the possibility that people who in effect peddle lies about others by using modern technology may one day be brought under control, maybe through damages – very substantial damages – maybe even through injunctions to prevent the peddling of lies”.

The language of “peddling lies” is curious. That is a concept belonging to libel law, rather than privacy. Those seeking super-injunctions tend not to say the underlying material consists of lies, but simply that it is private. The damage lies not in the falsity of the material, but in the fact that people talk about it.

This distinction is important in at least two respects. First, if an applicant wants to prevent people talking about the matter, but many people have already done so (for example, on Twitter), then his or her case for an ongoing injunction is weakened; it begins to look more a matter for damages than for injunctive relief.

Secondly, foreign jurisdictions may be even less cooperative about orders from England and Wales protecting private (but often true) material than they often are about similar orders concerning libel (see for example the United States’ Speech Act of 2010). Countries co-operate against copyright infringement and child pornography because they think it important to do so in a civilised society. They may be less inclined to think that about, say, Andrew Marr’s sex life. In other words, there is a good chance that legal action, whether for injunctive relief or damages, taken in England and Wales against foreign reporters may simply be impotent.

Contrast this likely impotence with measures for after illegal file-sharers through their internet service providers, proposed under the UK’s Digital Economy Act 2010 (on which, see my discussion here in advance of BT’s judicial review of that Act): unlike Twitter, ISPs often have a commercial footing in the UK which they are concerned to protect; international (including EU) legal protection is far more advanced than for copyright than for privacy; even under the Digital Economy Act’s proposal, infringing users are to be given a number of warnings before their details are handed over to those seeking damages, unlike the old Norwich Pharmacal model being utilised in the footballer’s action against Twitter.

Issue 3: granting and maintaining super-injunctions

The report emphasises that super-injunctions are not to be permanent, but should be granted only for very short periods of time. If anyone notices a super-injunction being granted with no return date, they should complain about it, as was done in the Zac Goldsmith/Jemima Kahn case. So far so good: allowing the media to be present for application hearings would help on this front, as would minimising the time between the interim injunction and the return date.

As regards the grounds on which a super-injunction should be granted, the report’s mood music suggests that some may have been granted too readily. It stresses that “in seeking to minimise derogations from the principle of open justice, the committee envisaged that super-injunctions will only be granted in very limited circumstances”. Other than to emphasise exceptionality and Article 10, there is probably little to be said (either by the committee or by parliament) in terms of guidance to judges on granting such injunctions – this is, and will remain, largely a case-by-case business.

The thorny issue of the moment, however, is this: if a matter has been very widely disclosed on Twitter and other websites, is it fair to maintain an injunction the effect of which is to prevent the establishment media from reporting it? If, as I suggested above, the damage comes from people knowing about what you have done, hasn’t the horse bolted in such circumstances? If people wish to reject your job application or shun you at parties, they will probably do so regardless of how they learnt about your indiscretions. Part of what seemed to concern David Cameron in his ITV interview this morning is this prejudicial effect on the establishment as compared with “newer” media, which commentators have described over the weekend as existing in “parallel universes”.

Lords Neuberger and Judge both suggested on Friday that, to the extent that there are differential effects on newspapers as compared to Twitter, that difference is justified. To a degree, they are correct: rightly or wrongly, we tend to expect more noble and sophisticated ethics from mature brands of journalism than we do from little-known blogs, and applicants no doubt suffer incremental damage from the public seeing matters reported in print headlines or on major news websites which they would otherwise have had to seek out on Twitter. There must come a point, however, where the media’s interests (including under Article 10) outweigh this combination of incremental harm and ethical expectation. That too is probably a matter for case-by-case determination, but it is something parliament’s joint committee will surely wish to consider. It may well side with the media over the privacy-seeking individual if forced to give guidance on a hypothetical case.

Issue 4: parliamentary privilege and contempt of court

The constitutional stakes are highest in this strand of the current debate.

The committee was very clear that no super-injunction or any other court order could conceivably restrict or prohibit parliamentary debate or proceedings. It also recognised that, in defamation proceedings, the reproduction of extracts from Hansard attracts attaches to, while honest, fair and accurate reporting of parliamentary proceedings attracts qualified privilege. It is unclear, however, whether the same would apply in contempt proceedings. In fact, “the law relating to Contempt of Court when it comes to reporting what is said in Parliament is astonishingly unclear”, as Lord Neuberger put it. The extent to which parliamentary privilege attaches to conversations between an MP and his or her constituents (some of whom may of course be journalists) is also unclear.

Lord Judge, however, explicitly disapproved of members of either house using parliamentary privilege to circumvent super-injunctions:

“But you do need to think, do you not, whether it’s a good idea for our lawmakers, to be in effect to be flouting a court order just because they disagree with the order or for that matter because they disagree with the law of privacy which parliament has created”.

John Hemming MP clearly takes a different view.

Again, there is much of interest in Lord Judge’s remark, such as the reference to parliament having created the law of privacy, and the implicit distinction between parliament flouting a court order and an individual member doing so. It would be very surprising, however, if parliament’s joint committee were to propose a constrained version of parliamentary privilege. If that committee is robust in defence of the houses’ privileges, the door may be opened to future “outings”, such as that of Fred Goodwin or CTB. Mindful of this, the reporting committee proposed a softer form of control than the restriction of parliamentary privilege. It suggested that:

“House authorities should consider the feasibility of a streamlined system for answering sub judice queries from the Speakers’ offices. Such a communication system will require the creation of a secure database containing details of super-injunctions and anonymised injunctions held by Her Majesty’s Courts and Tribunals Service, which could be easily searchable following any query from the House authorities”.

Parliament’s committee may well endorse this as the approach best suited to preserving a balance of respect (as opposed to contempt) between parliament, the courts, the media and individuals fearful of their privacy being overridden on political platforms.

On this issue, as with so much of the UK’s constitution, the answer may turn out to be a tense but workable network of understandings, rather than hard law. Perhaps this would calm matters only temporarily. But it might also provide breathing room for the public to evolve our expectations about privacy and freedom in both establishment and “modern technology” media, without bringing the latter under any undue “control”.

Robin Hopkins

OF CONSTRUCTION AND HUMAN RIGHTS: TRIBUNAL TO REVISIT S. 32(2) FOIA

Posted on | by Robin Hopkins

In Kennedy v IC and Charity Commission [2011] EWCA Civ 367, the Court of Appeal has referred back to the Information Tribunal the issue of whether s.32(2) FOIA should be “read down” (i.e. in favour of requesters) to give effect to Article 10 of the ECHR.

Ward LJ’s judgment begins like this:

“Mr George Galloway attracts attention”.

It goes on to explain that, between 1998 and 2003, Mr Galloway launched and ran the “Mariam Appeal”. This aimed to provide medical assistance in Iraq. It raised funds of nearly £1.5 million. The sources of and uses to which these funds were put generated some controversy. Investigations into the Mariam Appeal by the appellant journalist gave rise to an inquiry by the Charity Commission, which concluded in 2007. Shortly afterwards, the appellant requested information about this inquiry.

The Charity Commission refused, relying on the absolute exemption at s. 32(2) FOIA, which provides as follows (note its punctuation and structure – in particular how the commas and the use of “or” affects the flow and meaning of the section):

 Information held by a public authority is exempt information if it is held only by virtue of being contained in—

(a)any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or

(b)any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration.

The Information Commissioner, Tribunal and High Court were broadly in agreement with the Charity Commission’s stance. The issue for the Court of Appeal was whether this exemption subsists only for the duration of the inquiry or whether it continues after the inquiry has concluded. In particular, the “troublesome issue” was whether the phrase “for the purposes of the inquiry or arbitration” relates to and qualifies (i) the reason for placing the document in the custody of the person, or (ii) the reason why the document is being held by the public authority. The latter construction favoured the Appellant’s case, but the Information Tribunal opted for the former construction.

Ward LJ held that the issue was “at least ambiguous if not in favour of the appellant. The grammar certainly does not provide a clear cut answer”. He therefore took a purposive approach. Here a number of factors militated against the construction for which the appellant argued:

  • It would produce a surprising discontinuity with s. 32(1) (the “court records” exemption).
  • It would render otiose s. 63(1) (which nullifies s. 32 once a document reaches the age 30 years).
  • S. 18(3) of the Inquiries Act 2005 could only be construed as amending s. 32(2) – otherwise there would have been no need to pass s. 18(3), which provides that

 “Section 32(2) of the Freedom of Information Act 2000 (c. 36) (certain inquiry records etc exempt from obligations under that Act) does not apply in relation to information contained in documents that, in pursuance of rules under section 41(1)(b) below, have been passed to and are held by a public authority.”

Ward LJ concluded that he could not “extract a clear and certain meaning” of s. 32(2). It was “at least susceptible” to the appellant’s construction, but on the ordinary principles of construction the appeal would have been dismissed.

At a late stage, however (in fact, once the parties had received the draft of the original judgment dismissing the appeal) the appellant contended that – given the finding of ambiguity – s. 32(2) had to be read so as to comply with Article 10 of the ECHR. The Court of Appeal decided that this was an important point, which the present case was ideally suited to answer. On this issue, therefore, the case is being remitted to the Information Tribunal.

Robin Hopkins

EXTRAORDINARY RENDITION UPPER TRIBUNAL APPEAL: LATE RELIANCE, PERSONAL DATA & OTHER ISSUES

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The All Party Parliamentary Group on Extraordinary Rendition (APG) requested information from the Ministry of Defence on (i) memoranda of understanding between the UK and the governments of Iraq, Afghanistan and the USA regarding the treatment of prisoners detained in the conflicts in Iraq and Afghanistan, (ii) a copy of the Detentions Practices Review, (iii) a copy of the UK’s policy on capture and joint transfer, and (iv) statistics on detainees held in Iraq and Afghanistan. The MOD refused the requests, relying on a number of exemptions under FOIA. For the most part, the Commissioner agreed. APG’s appeal was expedited to the Upper Tribunal and heard by Blake J, Andrew Bartlett QC and Rosalind Tatam.

Except as regards request (iii), its appeal has succeeded, to a limited but substantial extent. The Upper Tribunal has ordered disclosure or significantly more information than that ordered by the Commissioner.

Its judgment (available here) is complex. Some of the key points of interest are as follows.

Late reliance

The Upper Tribunal was mindful of the decision of a differently constituted Upper Tribunal in the DEFRA/Brikett appeals, where it was held that public authorities may rely on exemptions as of right at any stage in proceedings. In this case, the Upper Tribunal did not need to decide the issue of late reliance, but it did confess to having “some general concerns” about such an approach, which threatens to “turn the time limit provisions of ss. 10 and 17 almost into dead letters”, and “can also create a strong sense of injustice”. The internal review mechanism provides sufficient time for the public authority to make its mind up; if new points are taken thereafter, “then fairness requires that the requester should be allowed to add to the terms of his complaint under s. 50(1)”.

Cost of compliance under s. 12 FOIA

The Upper Tribunal approved principles from Urmenyi v IC and LB Sutton (EA/2006/0093) concerning the Commissioner’s enquiries into the assumptions behind the public authority’s estimate, and from Roberts v IC (EA/2008/0050) about the activities falling within s. 12 and the reasonableness of estimates.

Late reliance on s. 12 is a different matter to late reliance on exemptions under Part II of FOIA. Delay by a public authority robs the requester of the opportunity to split the request into parts separated by 60 days, thereby avoiding s. 12. The cost exemption “only has meaning if the point is taken early on in the process, before substantial costs are incurred” – it looks at whether costs would exceed, not whether they have been exceeded.

In the present case, the MOD’s estimate was not reasonable because it was based upon a search for a broader class of information than that which was actually requested.

Prejudice to international relations under s. 27 FOIA

The Upper Tribunal was not persuaded that this exemption was effective: “since the maintenance of the rule of law and protection of fundamental rights is known to be a core value of the government of the United Kingdom, it is difficult to see how any responsible government with whom we have friendly relations could take offence at open disclosure of the terms of an agreement or similar practical arrangements to ensure that the law is upheld”.

Legal professional privilege under s. 42 FOIA

This exemption was engaged, and the public interest in favour of disclosure of the UK’s Detention Practices Review did not outweigh the public interest in maintaining the exemption.

Bodies dealing with security matters under s. 23 FOIA

The MOD successfully relied on this exemption – including where it was relied on “late”.

Personal data under s. 40 FOIA and the conditions in Schedule 2 DPA

Information on the dates and locations of individual cases of detention and prisoner transfer would not enable identification of those individuals, and was thus not personal data. If it had been personal data, condition 6(1) from Schedule 2 DPA would have been met.

APG in fact submitted that conditions 4, 5(a), 5(d) and 6(1) would be met by disclosure of statistics on detainees. The MOD submitted that a number of these conditions could not be relied on in the context of a request under FOIA because the public at large (to whom disclosure under FOIA is deemed to be made) cannot fulfil these conditions. The Upper Tribunal disagreed: at least some of these conditions can be fulfilled by a member of the public, and that is sufficient.

APG further relied on s. 35(2) DPA, which provides an exemption from the non-disclosure provisions of the DPA where disclosure is “necessary for the purposes of establishing, exercising or defending legal rights”. The Upper Tribunal confirmed that “establishing” for these purposes had the sense of “vindicating” rather than merely determining what the relevant rights are.

Where data is anonymised, it continues to attract the protection of the data protection principles insofar as it is in the hands of the data controller (who holds the key to identification of the otherwise anonymous data subjects). “But outside the hands of the data controller, the information is no longer personal data, because no individual can be identified… the best analysis is that disclosure of fully anonymised information is not a breach of the [DPA] because at the moment of disclosure the information loses its character as personal data”. The publication of truly anonymised or other “plain vanilla” data therefore does not involve “processing of personal data” for DPA purposes.

Related judgments

On the late reliance issue, permission to appeal to the Court of Appeal is being sought in the DEFRA/Birkett case.

On the s. 40 FOIA issue, the Upper Tribunal’s decision needs to be read in conjunction with the High Court’s decision (also handed down very recently) in the Department of Health’s “abortion statistics” appeal.

TWO HIGH COURT ‘PERSONAL DATA’ JUDGMENTS: DIGITAL ECONOMY ACT 2010 AND ABORTION STATISTICS

Posted on | by Robin Hopkins

The High Court has today handed down two judgments of some significance in the context of personal data.

This morning, Kenneth Parker J gave judgment in the application brought by BT and TalkTalk for judicial review of the Digital Economy Act 2010 (on which, see my earlier discussion here). The Act seeks to combat illegal file-sharing by allowing copyright owners to detect apparently unlawful online activity and report it to the suspect’s internet service provider, who must then warn the suspect against repeat infringements. The claimants contended, among other things, that this regime breached EU data protection law. Their claim failed on this and three other grounds, succeeding only with their fifth ground, which contended that internet service providers should not have to foot 25% of the bill for the regime imposed by the Act. Read the DCMS’ press release here.

This afternoon, Cranston J gave judgment in the “abortion statistics” appeal (on which, see my earlier Panopticon post here). The Information Tribunal had upheld the Commissioner’s decision to order disclosure of “low cell count” statistics as to the number of abortions carried out on specified grounds. Argument had focused on the risk of doctors, and in particular patients being identified. The Department of Health’s appeal to the High Court was dismissed. The judgment represents a notable development in jurisprudence on personal data.

More analysis to follow when these judgments are made available.

PUBLIC LAW REASONABLENESS NOT A MATTER FOR THE COMMISSIONER OR TRIBUNAL

Posted on | by Robin Hopkins

The absolute exemption at s. 44 FOIA applies where the disclosure of the requested information is prohibited under any enactment. Many statutes contain such prohibitions, often subject to specified exceptions or tests. If a public authority applies that statutory regime incorrectly or in a “Wednesbury unreasonable” way – that is, if it acts unlawfully in a public law sense  – then the precondition for reliance on s. 44 FOIA falls away.

This question arises: does FOIA presume “procedural inclusivity” (i.e. the Commissioner and/or tribunal have jurisdiction to consider such public law questions) or “procedural exclusivity” (i.e. public law is a matter for the courts only; requesters must thus seek judicial review)?

In Morrissey v IC and Ofcom (EA/2009/0067), the first-tier tribunal followed the approach taken in Hoyte v Civil Aviation Authority (EA/2007/0101) in supporting inclusivity. In other words, it considered that the Commissioner and tribunal do have jurisdiction to conduct “reasonableness reviews”.

In Morrissey, the tribunal asked itself whether Ofcom had acted reasonably in withholding information under s. 44 FOIA in reliance on s. 393(2)(a) of the Communications Act 2003. Its answer was ‘yes’. Ofcom nonetheless appealed, on the grounds that “reasonableness reviews” are beyond the statutory powers of the Commissioner and tribunal.

The Upper Tribunal has agreed with Ofcom, and endorsed procedural exclusivity: see GIA/605/2010. (Its decision was not concerned with the ultimate outcome of the case – which concerned a request for information about Ofcom’s approach to equal opportunities – but simply with this point of principle).

Its reasoning was as follows. Disparate caselaw illustrates a presumption that lower courts and tribunals can resolve public law prerequisites to their “core business” – but caselaw does not show any presumption that regulators can do so. Under FOIA, the tribunal’s jurisdiction is parasitic upon that of the regulator, the Commissioner. The Commissioner’s jurisdiction is to decide whether a request “has been dealt with in accordance with the requirements of Part I [of FOIA]” (s. 50(1) FOIA). (The tribunal’s jurisdiction is governed by s. 58 FOIA: this says it must determine whether the decision notice was “in accordance with the law” – rather than “Part I of FOIA”. It does not appear that the Upper Tribunal considered anything to turn on this difference).

As to the construction of the particular provision in question, the Upper Tribunal found that the purpose of s. 393 of the Communications Act 2003 is to reassure commercial broadcasters that Ofcom can only lawfully disclose their information if it considers it right to do so for one of the purposes in s. 393(2).

The Upper Tribunal was clear as to the broader implications of its decision: “it must be for the public authority initially to determine whether the information requested is exempt “by virtue of” s. 44” (paragraph 54).

It concluded, however, that judicial review is not the only alternative in these circumstances: the first-tier tribunal may not have jurisdiction over such public law points, but the Upper Tribunal does – provided it has the blessing of the administrative court in any given case.