On 19th May I gave a paper at 11KBW’s Information Law seminar, entitled “Information Law in the new Parliament”. This was a discussion of the new coalition government’s proposals relating to information law. On the following day, “The Coalition: our programme for government” was published, giving a much fuller account of the new Government’s programme.
I am revising my paper to take account of the new document. I will be posting the revised paper here, in the course of next week.
The Conservative/Lib Dem coalition agreements are available here. Under the heading “Civil Liberties” there are a number of points that should interest readers of this blog. These include:
* the scrapping of the ID cards scheme, the National Identity Register, the next generation of biometric passports and the Contact Point database;
* outlawing the fingerprinting of children at school without parental permission;
* extending FOIA to provide greater transparency;
* adopting the Scottish model for the DNA database;
* further regulation of CCTV; and
* ending the storage of internet and email records without good reason.
Taken together these suggest that information law issues will continue to be centre stage in political terms.
We’ve had a few emails to let us know that the RSS feed was broken; we hope that we’ve now fixed the problem. And at the same time we’ve introduced an option to subscribe to the blog by email – you should be able to see this at the left-hand side of the page.
In Ofcom v Information Commissioner [2010] UKSC 3 the Supreme Court was asked to consider how public authorities should approach the exceptions to disclosure set out in the Environmental Information Regulations 2004 (EIR). Most of these exceptions are subject to a public interest test. The public interest in maintaining an exception has to be measured against the public interest in disclosure. Unless the public interest in maintaining the exception outweighs the public interest in disclosure, the information must be disclosed.
But what happens if there are a number of exceptions in play? Do you look at each exception in turn, assessing the public interest in maintaining that exception as against the public interest in disclosure? Or do you aggregate all of the exceptions, assess the combined public interest in maintaining them, and measure that combined interest against the public interest in disclosure?
In the Ofcom litigation, the Court of Appeal had decided in favour of aggregation. The Supreme Court was inclined (by a 3-2 majority) to uphold that decision. But the Supreme Court also recognised that the answer was unclear, and depended on the construction of Directive 2003/4/EC. So the Court has referred the issue to the European Court of Justice.
There is now a practical difficulty: in cases where the aggregation point might make a difference to the outcome, what should the Tribunal do? Should it follow the Court of Appeal? Should it wait for the ECJ? Or should it reach its own view on how the legislation should be interpreted? And Ofcom is an EIR case: what about aggregation under FOIA?
In practice nobody will want the outcome of their case to turn on a point that may not be resolved for some years. It will be much more attractive for parties to argue that aggregation makes no difference to the outcome of their case.
The Tribunal has issued a Practice Note dated 18th January 2010, dealing with the protection of confidential information under the new rules of procedure.
The Note needs to be read in conjunction with the new rules of procedure (discussed in our earlier post here). The relevant rules are set out in the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009 (SI 2009/1976) as modified by the Tribunal Procedure (Amendment) Rules 2010 (SI 2010/43).
The Practice Note indicates that the Tribunal will maintain its previous practice, that disputed information (i.e. the information sought by a requester but withheld by a public authority) will not usually be disclosed to the requester in the course of appeal proceedings before the Tribunal. This may mean that a party is excluded from part of the Tribunal hearing. The Practice Note refers to rule 35 of the new Rules as providing a basis for exclusion.
The Practice Note also includes guidance about the format of witness statements (see paragraph 22) and the contents of bundles (see paragraph 25).
The First-tier Tribunal (Information Rights) – as we must now learn to call it – has recently published on its website a list of its current cases (updated to 20th January 2010). This gives an interesting insight into the volume and type of work reaching the Tribunal.
Cases are numbered by year of receipt, and in the order that they are received: for instance, EA/2009/100 is the 100th case received in 2009. This means that the case numbering system indicates how many appeals were received in a particular calendar year. On this basis, the Tribunal seems to have received 123 cases in 2009, and 30 (so far) in 2010; which suggests a sudden sharp increase in its workload.
The list shows 102 live cases. Of these, only one is identified as a Data Protection Act case. 11 cases are identified as involving the Environmental Information Regulations. All of the other appeals (90 cases) are brought solely under the Freedom of Information Act.
As the figures suggest, free-standing DPA cases before the Tribunal are rare. There are also few DPA cases that reach the ordinary courts. But many FOIA cases involve DPA issues. So a significant volume of DPA case-law is being generated by the Tribunal; but most of this is in the context of FOIA, and in particular the data protection exemption in FOIA section 40.
