Author: Robin Hopkins

SAFETY RISK JUSTIFIES WITHHOLDING OF ANIMAL EXPERIMENT INFORMATION

Posted on | by Robin Hopkins

The ‘health and safety’ exemption under s. 38 FOIA has received relatively little attention at Tribunal level. It was recently relied upon successfully in People for the Ethical Treatment of Animals Europe (PETA) v IC & Oxford University (EA/2009/0076).

Experiments performed on a macaque by an Oxford University Professor had been featured in a BBC documentary in November 2006. The appellant pressure group sought extracts from the relevant project licence concerning, for example, the work plan and purposes behind those experiments. The Tribunal applied the well-established ‘prejudice’ principles from Hogan and Oxford City Council v IC (EA2005/0026 and EA2005/0030), ‘endanger’ (the term used in s. 38) being synonymous with ‘prejudice’. It found that s. 38 was engaged, given the indiscriminate nature of the violence tending to accompany the publication of information about animal experiments at Oxford.

In terms of the public interest test, notable points from the decision include:

a) PETA argued that the information would assist its decisions on applications for judicial review, but, based on Secretary of State for the Home Department v BUAV [2008] EWCA Civ 417, the Tribunal observed that there was limited scope for judicial second-guessing of scientists’ opinions.

b) The Tribunal accepted that limited external scrutiny was available, but was persuaded of the robustness of the internal scrutiny and oversight mechanisms applied here.

c) Oxford put forward a collateral public interest argument, namely that safety risks would deter future research, thereby impeding the advancement of scientific knowledge and human health. PETA argued that this was too remote from the health and safety risks for which s. 38 catered, but the Tribunal rejected this ‘remoteness’ objection (though it found this public interest factor to be inapplicable on these facts).

Given the frequency with which such points arise in appeals by pressure groups, these observations from the PETA case may come to have wider application.

LATE RELIANCE ON EXEMPTIONS ONLY TO BE ALLOWED IN “EXCEPTIONAL” CIRCUMSTANCES

Posted on | by Robin Hopkins

The Tribunal’s recent decision in Crown Prosecution Service v IC EA/2009/0077 concerned a request for information about the CPS’ deliberations on s. 58 of the Children Act 2004, which restricted the availability of the “reasonable punishment” defence to what would otherwise be a criminal assault by an adult on a child. The importance of this decision lies not so much in the fate of the requested information (in short: some was exempt, some was to be disclosed), but in the Tribunal’s approach to late reliance on FOIA exemptions.

The CPS initially relied on s. 35(1)(a) (formulation and development of government policy). Then, in its appeal to the Tribunal, it invoked s. 35(1)(b) (ministerial communications) and s. 42 (legal professional privilege). Finally, the CPS raised s. 40 (2) (personal data) for the first time during the Tribunal proceedings. The Tribunal allowed late reliance on ss. 40(2) and 42, but not s. 35(1)(b).

In so doing, it applied the principles set out in the Tribunal’s decision in Home Office & Ministry of Justice v IC EA/2008/0062. The crux of that decision was that late reliance should only be allowed in “exceptional” circumstances. The Home Office approach was not disapproved in the appeal to the High Court from that Tribunal decision ([2009] EWHC 1611 (Admin)) – but nor was it formally approved. The CPS decision, which was complete with detailed reasoning in support of Home Office, seems to have resolved lingering questions about the Tribunal’s approach to late reliance.

The Tribunal in CPS also considered whether the IC is under a duty to consider exemptions that are not raised by the public authority. Here it followed the approach from Bowbrick v. Nottingham City Council EA/2005/0006: in “exceptional” cases, the IC is “entitled” to look for an appropriate exemption. This did not extend to s. 42 in Bowbrick, nor did it in CPS.

S. 41 FOIA: BREACH OF CONFIDENCE MUST BE “PROBABLE” RATHER THAN “ARGUABLE”

Posted on | by Robin Hopkins

The Information Tribunal’s judgment in Higher Education Funding Council for England v Information Commissioner (EA/2009/0036) is its most definitive decision to date on the exemption for confidential information provided by s. 41 FOIA. Most decisions about s. 41 will – for now – need to take into account the issues addressed in this judgment.

 

The Council, a statutory body for the administration of higher education funding, relied on this exemption in refusing to disclose to a Guardian journalist information relating to the state of the buildings at Higher Education Institutions that contributed to the Council’s database. The Commissioner decided that s. 41 was not engaged. The Tribunal agreed, addressing a number of important issues along the way.

 

First, and most crucially: s. 41 is triggered by an “actionable” breach of confidence. Does “actionable” in this context denote a claim that is likely to succeed on the balance of probabilities (as the Commissioner contended, supported by Guardian News as an additional party) or merely a claim that is properly arguable (as the Council argued)? The Tribunal regarded this as a novel point on which the statutory wording was ambiguous. Accordingly, it turned to Hansard, which provided an unequivocal resolution: “actionable” for s. 41 purposes means (in the words of the bill’s sponsor, Lord Falconer) “being able to go to court and win”. For public authorities wishing to rely on s. 41, a merely arguable potential action will not suffice.

 

Next, the Tribunal considered the long-established definition of actionable breach of confidence from Coco v AN Clark (Engineers) Ltd [1968] FSR 415, the first limb of which requires that the information has the “necessary quality of confidence”. Guardian News conceded that the information was neither trivial nor widely accessible, but argued that limb 1 of Coco imposed two further requirements, namely: the party claiming confidentiality must demonstrate some value it would derive from non-disclosure of the disputed information, and the information must be confidential from the objective standpoint of the reasonable person. While it found that both of these conditions were met in this case, the Tribunal found it unnecessary to read these supplementary questions into the Coco test.

 

Third, the Tribunal considered the principle (under limb 3 of Coco) that a breach of confidence is only actionable if the confider suffers detriment thereby. Caselaw shows that, where private (as opposed to commercial) information is at stake, courts have not insisted on this detriment criterion. Nonetheless, the Tribunal declined to deviate from Coco: for s. 41 to be engaged, the public authority must make out detriment. The standard of detriment is not onerous: reputational damage suffices. In the circumstances, however, it was only the higher education institutions who were capable of suffering detriment, and not the Council in its own right, because the latter was merely the servant of the former.

 

Finally, the Tribunal, applying the proportionality test from HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776, held that a public interest defence would defeat a claim for breach of confidence in these circumstances. Notably, the Tribunal held that even if disclosure were to result in uncooperative behaviour from Higher Education Institutions, little weight should be attached to any such detriment based on obstructive behaviour “which would fall short of the standard of stewardship which the public is entitled to expect”.

REDACTION IS NOT PART OF THE COST OF COMPLIANCE

Posted on | by Robin Hopkins

Public authorities will wish to note the Information Tribunal’s recent confirmation of the Commissioner’s view that the costs of redaction do not count towards the cost of complying with a request, and should thus be ignored for the purposes of s. 12 FOIA.

 

That section contains an exemption where the estimated cost of compliance with a request under FOIA would exceed the appropriate limit set by the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. By regulation 4(3)(d), the ‘”allowable tasks” for the purposes of the cost calculation include “extracting the information from a document containing it”. In its recent decision in Chief Constable of South Yorkshire Police v Information Commissioner (EA/2009/0029), the Tribunal held that this did not extend to redaction.

 

A differently constituted Tribunal had reached the same decision in Jenkins v IC and DEFRA (EA/2006/0067), but had observed that the point was not free from doubt. The more recent decision – which deals with both statutory construction and matters of principle – appears to have dispelled this doubt.

 

 

 

 

 

Home Office publishes response to its consultation on communications data

Posted on | by Robin Hopkins

The Home Office has published a summary of responses to its April 2009 consultation paper on ‘communications data’, i.e. information about a communication that does not include the content of the communication itself. At present, such data is owned by communications service providers and accessed by certain public authorities under disparate statutory powers for the purposes of combating, for example, fraud, terrorism and other serious crime. The government is considering an overhaul so as to bring all communication types (such as web chat) and all relevant service providers (some of whose contractual positions place them beyond the current statutory arrangements) within the system.

 

The attendant tension between individual liberty and public protection is reflected in the 221 responses to this consultation.

 

A substantial minority of respondents objected in principle to any ‘surveillance’ of communications. A majority (albeit a fairly narrow one) agreed that communications data served an important public purpose and that the government should therefore act to maintain the capability of public authorities to make use of this type of information.

 

As to what form this action should take, only one element of the government’s proposed approach was widely welcomed, namely its rejection of a central database for holding all data of this type. Reservations were otherwise expressed about technological feasibility, data security and the proportionality of public authorities’ use of communications data.

 

Nonetheless, such reservations were not deemed forceful or widespread enough to deter the government from its proposed course. A number of respondents’ suggestions have been rejected, including the specifying of categories of data which should not be retained, and the requirement for a magistrate’s authorisation before communications data can be accessed.

The government is also satisfied that the DPA 1998 and RIPA 2000 provide sufficient safeguards against abuse of such data. A legislative review is, however, proposed, to see if a single means of authorised access (through RIPA 2000) would be practicable. Fresh or consolidating legislation appears likely.

Abortion statistics: identification of patients and doctors held to be unlikely

Posted on | by Robin Hopkins

In 2003, the Department of Health significantly reduced the detail of publicly available statistics on abortion operations: for example, no information was any longer to be released about post-24-week abortions carried out on the grounds of foetal medical defects. The Department relied principally on s. 40 FOIA in refusing the Prolife Alliance’s request for more detailed data. The Information Tribunal has, however, ordered the statistics to be disclosed: see Department of Health v IC (Additional Party: the Pro Life Alliance) (EA/2008/0074). The Tribunal agreed with the Department that the requested abortion statistics, although entirely anonymised, did constitute personal data because they were not anonymous in the hands of the data controller. The Department’s principal concern, namely the inferential identification of doctors or patients, was not, however considered ‘likely’ in the circumstances. This factual finding meant that, in the Tribunal’s view, the release of the requested personal data was fair and lawful and that (under paragraph 6(1) of Schedule 2 to the DPA) the potential prejudice to patients and doctors was outweighed by legitimate third party interests in (inter alia) monitoring compliance with abortion law, identifying abortion trends, informing public debate and encouraging accountability of medical practitioners. The decision is of note for its detailed analysis of the ways in which individuals might be identified from statistical data, and for the Tribunal’s reliance on the Corporate Officer of the House of Commons litigation (in its various stages) for guidance on the balancing test under paragraph 6(1) of Schedule 2 to the DPA.