In Catt v ACPO and others; T v Commissioner of Police of the Metropolis and another [2013] EWCA Civ 192, the Court of Appeal considered two appeals regarding the powers of the police to collect and retain personal information about members of the public.  Both cases turned on the application of Article 8 of the Convention; in both, the Court held that there had been an interference with the Article 8(1) right to respect for private life, and that the interference was not justified under Article 8(2).

 

The retention of personal information by the police has given rise to extensive litigation in recent years:  see e.g. Chief Constable of Humberside and others v Information Commissioner [2009] EWCA Civ 1079 (retention of conviction information on police national computer); and S and Marper v UK [2008] ECHR 1581 (operation of national DNA dabatase).  Although the Humberside case concerned the Data Protection Act 1998, since it arose out of enforcement action taken by the Information Commissioner under that Act, most of the cases have turned on the application of Article 8.  A recurring issue, and one on which the Catt case is especially important, is whether and in what circumstances the recording and retention of information about events taking place in public will constitute an interference with the Article 8 right to respect for private life.

 

The first appeal concerned Mr. John Catt, described in the judgment of the Court as someone who “over a long lifetime has been an ardent and frequent protestor against what he sees as a variety of forms of injustice”.  He had attended public demonstrations organised by “Smash EDO”, a group campaigning against a weapons manufacturer operating on the outskirts of Brighton.  Some of the core supporters of Smash EDO were prone to violence and criminal behaviour, but Mr. Catt had not been convicted of criminal conduct of any kind in connection with any demonstration that he had attended.  Personal information about Mr. Catt was held on the National Domestic Extremism Database, mostly consisting of reports by police officers attending Smash EDO demonstrations.  Mr. Catt had not been the specific target of observations, but was referred to incidentally in descriptions of what the police at the scene had observed.  It appeared that this information was to be retained indefinitely.

 

In judicial review proceedings, Mr. Catt contended that the continued retention of this information about him constituted an unjustified interference with his Article 8 rights.  His claim was rejected by the Divisional Court.

 

The second appellant, referred to as Ms T, was served with a police warning letter following an allegation that she had directed a single homophobic insult against the friend of a neighbour.  She denied the allegation; in judicial review proceedings based on an alleged infringement of her Article 8 rights, she sought an order that the police should destroy their copy of the warning letter and remove from their records all references to the decision to serve it.  Again, her claim failed at first instance.  Before the appeal hearing the police reviewed the information and decided to expunge it, but the Court of Appeal nevertheless heard and determined the appeal because of the importance of the issues raised.

 

The judgment in Catt begins with a survey of recent developments in relation to Article 8. This part of the judgment is likely to become an important reference point in any future cases about the retention and use of police information.

 

As to the circumstances in which there would be an interference with the Article 8(1) right, the Court began by referring to the observation of Lord Nicholls in Campbell v MGN Ltd [2004] UKHL 22, that the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.  However, recent cases showed that the position was more complex.  Even information of a public nature could become private over the course of time, as memories faded.  Moreover, the storage and use of personal information gathered from open sources could nevertheless involve an interference with private life.

 

In relation to justification under Article 8(2), the Court reiterated the three well-known requirements that the conduct in question must be in accordance with the law; carried out in pursuit of a legitimate aim; and proportionate to the aim sought to be achieved.  The issue of “legitimate aim” did not cause any difficulty in the present cases: the police were acting to prevent disorder and crime, and protect the rights and freedoms of others.  In cases about the collection and retention of personal information about private individuals, the issues of legality and proportionality were closely related.  As to proportionality, the overriding principle was that there should be a fair balance between the personal interest of the claimant in maintaining respect for his public life, and the pursuit of a legitimate aim in the interests of the public at large.  The Court needed to pay careful attention to the nature of the information in question, the circumstances in which it could be obtained, the ways in which it could be processed and by whom, the period of retention, and the arrangements for its destruction.

 

Applying these principles to Mr. Catt’s case, the first issue was whether there was any interference with his right under Article 8(1).  The Divisional Court had held that there was not:  none of those attending the Smash EDO demonstrations can have had a reasonable expectation of privacy, since it was of the essence of such activity that it was of a public nature.  The Court of Appeal took a different approach, focusing on the collection and retention of data about Mr. Catt rather than on the public nature of his activities at the demonstrations themselves.  The processing and retention of even publicly available information could constitute a interference with Article 8 rights, especially when the information was subjected to systematic processing and entered on a database that was searchable by reference to specific individuals.

 

Turning to the issue of justification under Article 8(2), the Court focused on the issue of proportionality.  It accepted that the police needed to obtain a better understanding of how Smash EDO was organised, so as to anticipate its future conduct and tactics.  However, the Court did not consider that the information held about Mr. Catt was of sufficient value to justify its retention.  It commented that the police appeared to be recording the names of any persons they could identify at Smash EDO demonstrations, regardless of the nature of their participation.  The retention of Mr. Catt’s information on the database was therefore an unjustified interference with his Article 8 rights, and hence was unlawful.

 

As to the second case, that of Ms T, the Court held that the action of the police in issuing the warning letter did not in itself amount to an interference with her Article 8(1) rights, but that the retention in police records of a copy of the letter, and information describing the circumstances in which it had been issued, did constitute an interference. While the retention of this information for a short period was justified, it was hard to see how retention for more than a year or so could be of any value. If the information had not been destroyed before the appeal hearing, then its continued retention woud have been disproportionate.

 

The message from both cases is that, even where events take place in public, the recording and retention of information about them can interfere with the right to respect for private life.  The Court is especially concerned with the sitation where information is retained indefinitely on databases where it is searchable by reference to individual names.  In relation to justification, the cases suggest that the Court will scrutinise closely both the precise nature of the information retained, and its value for policing purposes.  The analysis in Catt will be an essential starting-point in any future consideration of how Article 8 applies to police use of information.

The House of Commons Justice Committee’s Report on its post-legislative scrutiny of the Freedom of Information Act 2000 is published today and is available online.

We will be analysing the Report more fully in the coming days, but in general it is clear that the Report has not opted to recommend any radical change to the FOIA regime.  The Committee suggests that there should be a modest reduction (in the region of 2 hours) to the time that public authorities are required to spend in answering requests.  They do not suggest any expansion in the range of activities that are taken into account in applying the costs limit.

There is no recommendation for any additional exemption to preserve the “safe space” for policy formation and Cabinet discussion.  But there is a clear signal from the Committee that the exemptions in FOIA section 35 are intended to give some protection to high-level policy discussions, and that the use of the ministerial veto may sometimes be required.

About a quarter of the written responses to the Committee’s call for evidence were from the university sector. The Committee recommends a Scottish-style exemption for unpublished research information, but rejects the suggestion that universities should be taken out of FOIA altogether.

The Committee recommends that the effect of public sector outsourcing on the operation of FOIA should be kept under review.

In Plowden and FCO v Information Commissioner EA/2011/0225 and 0228, the First-tier Tribunal considered a FOIA request for the record of a telephone conversation that took place on 12^th March 2003 between President Bush and Mr. Blair.  The Tribunal largely upheld the ICO’s decision notice, and ordered that part of the record should be disclosed.

The significance is in the date, of course:  the conversation took place just 8 days before the start of the Iraq war.  The UK and US had been seeking a further UN Security Council resolution relating to Iraq.  On 10^th March 2003, during a television interview, the French President Jacques Chirac commenced about the proposed resolution.  The requester, Mr. Plowden, wished to establish whether, during their telephone conversation on 12^th March 2003, President Bush and Mr. Blair agreed to take the position that it was the French who had made it impossible to secure a second resolution.

Mr. Plowden’s request was prompted by evidence given by Mr. Straw (Foreign Secretary at the time of the Iraq war) to the Chilcot Enquiry.  As well as seeking the record of the Bush/Blair conversation, he sought other information about messages from France to the UK at the relevant time, and about a discussion between Mr. Blair and President Chirac. The FCO initially refused to disclose any of the information sought, but by the time of the Tribunal hearing the Bush/Blair conversation was the only item in dispute.

In relation to that conversation, the ICO’s decision notice distinguished between those parts of the record that contained or reflected information provided by President Bush (“the Bush information”) and those that did not (“the Blair information”); the ICO ordered disclosure of the relevant record, but with the Bush information redacted.  The FCO appealed, contending that the entire record was exempt under FOIA section 27 (prejudice to international relations) and section 35(1)(b) (Ministerial communications).  Mr. Plowden appealed against the decision to redact the Bush information.

So far as material, section 27(1) provides a qualified exemption for information the disclosure of which would or would be likely to prejudice relations between the UK and any State.  Section 27(2) provides a class-based exemption for confidential information obtained from another State (and section 27(3) further defines what is meant by confidential information in this context). Section 35(1)(b) provides a qualified exemption for Ministerial communications.

The Tribunal heard evidence from four witnesses, including Mr. Plowden and Ms Clare Short.  The latter was, of course, a member of the Cabinet in 2003: this appears to be the first occasion when a former Cabinet minister has given evidence in a FOIA case about matters that arose during their time in office.

The disputed information consisted of an internal note between the private secretaries to the Prime Minister and the Foreign Secretary, recording the main points discussed in the Bush/Blair conversation.  It was common ground between all parties that section 35(1)(b) and section 27(1) were engaged in relation to all of the disputed information.  It was also common ground that section 27(2) was engaged for the Bush information.

The Tribunal considered the extent of the information covered by the section 27(2).  In their view the ICO had taken too narrow a view of what constituted the “Bush information”.  Section 27(2) would cover three things:  what President Bush said; any record of whether Mr. Blair agreed; and any record of what President Bush and Mr. Blair discussed and agreed together, where the record did not disclose who originated the subject of discussion.  Section 27(2) applied, given the expectations of confidentiality in relation to discussions at this level, even though there was no formal confidentiality agreement.

The Tribunal also considered the public interest balance.  It regarded the public interest in disclosure as very weighty indeed.  It also considered that there were weighty factors in favour of maintaining the exemptions.  As far as section 27(2) was concerned, the likelihood of relations with the US being prejudiced by disclosure of confidential information provided by President Bush to Mr. Blair just before the Iraq war was very high indeed.  As to section 27(1)(a), any disclosure could lead to severe prejudice to the UK’s security and diplomatic interests.

The Tribunal reminded itself of the need to consider the actual content of the disputed information, and not just the category of information to which it belonged.  It was appropriate to consider the disputed information sentence-by-sentence.  The FCO’s approach was unsatisfactory, because it came perilously close to asserting that no information about communications with the US (at any rate at head of state level) should ever be released, and this would turn the qualified exemption under section 27 into a quasi-absolute exemption.  Points of this nature are often made in Tribunal discussions of qualified exemptions.

The Tribunal considered that the decision to go to war in Iraq was of exceptional gravity and controversy, and that information that could provide a better understanding of that decision was subject to an exceptionally strong public interest in disclosure.  The strength of that interest was somewhat lessened by the existence of the Chilcot Inquiry into the Iraq war; but it was also relevant that Chilcot would probably not be able to disclose the record of the relevant Bush/Blair conversation.

In relation to the Bush information (and on the Tribunal’s wider interpretation of what that information comprised), the public interest balance narrowly favoured maintaining the relevant exemptions; the fact that section 27(2) was engaged tipped the balance.  In respect of the Blair information, however, the balance narrowly favoured disclosure.

The case illustrates how, some 9 years on, the Iraq war continues to generate acute controversy in the FOIA context.  No doubt it is requests of this kind that prompted Mr. Blair’s notorious statement that he was a “nincompoop” to introduce FOIA.  But, as is reflected in the title of this post, political embarrassment cannot always be blamed on FOIA:  the well-known “Yo, Blair!” exchange, taking place at a G8 summit in July 2006, came into the public domain because the conversation was unexpectedly picked up by a microphone.

DCLG v Information Commissioner and WR [2012] UKUT 103 (AAC) is an important decision of the Upper Tribunal about the significance of legal professional privilege (LPP) under the Environmental Information Regulations 2004 (EIR). The decision is likely to mean that the approach taken to LPP under the EIR and under the Freedom of Information Act 2000 (FOIA) will in most cases be broadly similar, despite differences in drafting between the two provisions.

The three-member panel hearing the DCLG case was exceptionally strong. It included Lord Justice Carnwath (as he then was), sitting shortly before the end of his term of office as the Senior President of Tribunals; some three weeks after the decision was issued, he was sworn in as a Justice of the Supreme Court.

Under section 42 of FOIA, there is a specific qualified exemption for information in respect of which a claim for LPP could be maintained.  There is no equivalent express provision under the EIR.  However, regulation 12(5)(b) contains a qualified exception for information the disclosure of which would adversely affect the course of justice.  The appeal in DCLG raised two questions:  what was the significance of LPP in determining whether the exception in regulation 12(5)(b) was engaged; and what weight should be attached to LPP in carrying out the public interest balancing test.

The context was an unsuccessful application for planning permission for the erection of an anemometer mast (to measure wind speed and direction).  The applicant appealed against the local authority’s refusal, indicating that if the planning inspectorate (PINS) determined that the appeal should be decided on written representations without a hearing then permission would be sought for judicial review.  Nevertheless, PINS decided that the appeal should proceed on the basis of written representations.  The applicant tried to persuade PINS to reverse that decision. In their response, PINS referred to and relied upon the advice of an in-house legal adviser.

The applicant then sought disclosure of that legal advice, under the EIR; PINS refused to disclose it, relying on regulation 12(5)(b).  The Information Commissioner (ICO) upheld the refusal, but the First-tier Tribunal (FTT) allowed the applicant’s appeal.

The Upper Tribunal referred to the approach taken under FOIA section 42, as set out in DBERR v Information Commissioner and O’Brien [2009] EWHC 164 (QB).  The Upper Tribunal summarised that approach as follows:  in applying the public interest test, a heavy weight was to be given to the exemption, by reason of the risk that disclosure would weaken the confidence of public bodies and their advisers in the efficacy of LPP; that weight might vary from case to case, so that it would be reduced if the requested information was very old or related to matters that were no longer current; further, the factors in favour of maintaining the exemption would not be limited to these general considerations, and might also include the effect which disclosure would have in the individual case.

In discussing whether regulation 12(5)(b) was engaged, the Upper Tribunal stated that it was material to consider the general effect which disclosure of legal advice would have in weakening confidence in LPP, as well as the effect on the particular case in which disclosure was sought.  The exception would be engaged, only if an adverse effect on the administration of justice would be more probable than not.  The Upper Tribunal doubted whether the requirement for the course of justice to be adversely affected meant that the relevant advice must have been given in a litigious context, while stating that it did not need to decide the point.  Likewise, the Upper Tribunal did not need to decide whether the fact that information was protected by LPP would necessarily mean that regulation 12(5)(b) was engaged.

In relation to the public interest balance, the Upper Tribunal considered that the approach to be taken under regulation 12(5)(b) was broadly similar to that under FOIA section 42, subject to the fact that (by regulation 12(2)) the EIR is subject to a presumption in favour of disclosure.

In relation to the particular appeal, the Upper Tribunal considered that regulation 12(5)(b) was clearly engaged.  The advice was given at a time when judicial review had been threatened; disclosure would have had an adverse effect on the course of jusice, by weakening general confidence in LPP.  This was a strong factor in favour of maintaining the exemption.  A further factor was that it was unfair to require PINS to reveal its legal advice in circumstances where those seeking to overturn its decision would not have to do so.  The factors in favour of disclosure were relatively weak: the presumption in favour of disclosure was rebutted.

Is there now any scope for a difference of approach between FOIA section 42 and EIR regulation 12(5)(b)?

In any case where disclosure is sought under FOIA of material protected by LPP, FOIA section 42 will be engaged.  By contrast, it is still theoretically possible that disclosure could be sought under the EIR of material protected by LPP, without engaging regulation 12(5)(b)  The Upper Tribunal expressly refrained from finding that every LPP case would automatically engage regulation 12(5)(b); but they also doubted whether regulation 12(5)(b) could be confined to cases where there was a threat of litigation. My own view is that, in the light of the decision, arguments that regulation 12(5)(b) does not apply to the disclosure of LPP material will be difficult to maintain, and will succeed (if at all) only in rather unusual circumstances.

Where regulation 12(5)(b) is engaged, the approach to the public interest test will be broadly similar to that under section 42.  The only difference (and its practical significance is doubtful) is that under the EIR there is an express presumption in favour of disclosure.

The London Legal sponsored walk takes place next Monday (16th May), and 11KBW are fielding a team of 16 walkers. We are raising funds for the London Legal Support Trust which funds Law Centres and pro bono agencies in and around London. We know from our own pro bono work that these agencies do a fantastic job in preventing homelessness, resolving debt problems, gaining care for the elderly and disabled and fighting exploitation.  In the current economic climate their work is more important than ever.

It would be great if readers of this blog could sponsor us here.  If you’ve found the blog useful or helpful over the last 2 years, and would like to show your appreciation, then now is the time!