Category: Information law

Appeal in Data Sharing Case

Posted on | by Anya Proops KC

The Information Tribunal has been seized by an appeal against a decision of the Information Commissioner in a case on data sharing. The Appellant requested information from the Cabinet Office relating to a Cabinet Committee which had been set up to consider data sharing in the public sector. The Cabinet Office disclosed some information. However, it refused to disclose minutes of the Committee’s meetings on the basis that they were exempt from disclosure under section 35 FOIA (policy exemption). The Cabinet Office also refused to disclose the names of junior civil servants who attended the meeting on the basis that this information was exempt under section 40(2) FOIA. The Commissioner held that that the Cabinet Office’s refusal to disclose the minutes was lawful. The Appellant is now appealing the Commissioner’s decision to the Tribunal.

Information Commissioner’s Decision Notice:

https://www.ico.gov.uk/upload/documents/decisionnotices/2008/fs_50177136.pdf

Closed Sessions in High Court Appeals

Posted on | by Anya Proops KC

Last week the High Court heard an appeal brought by the Government against the decision of the Information Tribunal in O’Brien v Information Commissioner & Department for Business Enterprise and Regulatory Reform. The appeal concerned, in particular, whether the Tribunal had erred when applying the public interest test in the context of the exemptions afforded under section 35 (policy development) and section 42 (legal privilege) FOIA. During the course of the appeal, questions where raised by the Respondent (Mr O’Brien) as to whether the Court had jurisdiction to consider: (a) an annex to the decision which the Tribunal had stated should remain confidential to the Commissioner and BERR, pending any further appeal; and (b) the disputed information which had been withheld by BERR. It was argued on behalf of the Commissioner: (a) that the Court had jurisdiction to consider the confidential annex as that annex clearly formed part of the decision which was being appealed; and (b) that the Court had power to consider the disputed information in closed session pursuant to CPR 52.10(1). In summary, CPR 52.10(1) affords the court all the powers of the lower tribunal which is being appealed from, subject to any enactment which precludes the court enjoying such powers.  A judgment on the appeal is awaited.

Tribunal decision:

https://www.informationtribunal.gov.uk/DBFiles/Decision/i258/O’Brien%20v%20ICO%20(EA-2008-0011%20%5BFS50082127%5D)%20Decision%2007-10-08.pdf

Government Appeals in Meta Request Case

Posted on | by Anya Proops KC

In Home Office & Ministry of Justice v Information Commissioner, the Information Tribunal was called upon to decide the novel question whether information about internal FOIA processes operated by public authorities was itself susceptible to disclosure under FOIA. The information in issue in the case related to some 48 requests which had been made by or on behalf of a particular media organisation. The Government sought to argue before the Tribunal that it was lawfully entitled to withhold the requested information on the basis that  it was exempt under section 36 FOIA (prejudice to conduct of public affairs). In a robust decision, the Tribunal rejected the Government’s appeal. It found that the information was not exempt under section 36. It also found that the Government had erred by treating the requested information, in effect, as a special class of information which was less susceptible to disclosure under FOIA than other types of information. The Government is now appealing the decision to the High Court.

Tribunal Decision:

https://www.11kbw.com/judgments/docs/HomeOfficeMoJvIC.pdf

Legal Week Article:

https://www.legalweek.com/Navigation/32/Articles/1197080/Freedom+of+Information+Act+Under+orders+to+disclose.html

Government Superdatabase

Posted on | by Anya Proops KC

Over the last few months, there has been considerable media coverage of Government plans to introduce a new ‘superdatabase’ designed to track all internet and telephone use. The stated purpose of the database is to assist law enforcement agencies by facilitating access to information currently held by individual Telecoms companies. It is expected that the Government will publish its detailed proposals later on this month. However, the new Director of Public Prosecutions, Kier Starmer QC has already expressed the view that, provided that proper safeguards are put in place, the database would be legitimate. Mr Starmer’s assessment contrasts starkly with that of his predecessor, Sir Ken MacDonald, who expressed the view that the database would create a ‘hell-house’ of personal privae information. The Information Commissioner has previously warned that the creation of such a database would raise serious data protection concerns (see his 15 July 2008 Press Release).

Draft Communications Data Bill:

https://www.commonsleader.gov.uk/output/Page2461.asp

Information Commissioner’s Press Release

https://www.ico.gov.uk/upload/documents/pressreleases/2008/annual_report_web_version.pdf

Facebook at work

Posted on | by Timothy Pitt-Payne KC

I’m a great admirer of Pinsent Mason’s “Out-Law” website.  It’s a fascinating source of information law material. 

Today, there’s an opinion piece about the use of social networking sites by employees.  It argues that in some circumstances employers are entitled to control the use that employees make of sites such as Facebook, even outside working hours.    There is a risk of reputational damage:  for instance, a newspaper that aims for politically impartial journalism could be damaged if its writers reveal their own personal political views online.

Personal use of the internet during working time is a legitimate concern to employers – just as they may rightly be concerned about the use of the phone system for long private calls.  But what about curtailing employees’ freedom of expression and social interaction in their own time?  It is suggested that any employer who went down this route would need both a very strong justification, and a tightly-drawn policy that was clearly communicated to their employees.

In considering any specific case, careful consideration would need to be given by employers to how widely any objectionable material posted by an employee could be viewed – was it visible to a small group of friends, for instance, or to a network of millions of people?

There’s a much broader issue here.   Social networking is very widespread indeed among today’s student generation.  When they begin their working lives, will they find that their online activity impedes their search for a job?  Or that it comes back to haunt them later in their working lives? 

The reference for the opinion piece discussed above is at:

https://www.out-law.com//default.aspx?page=9738

For discussion of the issues that arise when an employer considers that an employee’s online activities are damaging to its reputation, see Pay v Lancashire Probation Service, available online at:

https://www.employmentappeals.gov.uk/Public/Upload/EAT1224021192003.doc