Category: Information law

Article 10 and a human right to access information (Yes, again…sigh)

Posted on | by Joe Barrett

Article 10 of the European Convention on Human Rights (“the ECHR”) does confer a right of access to information held by public bodies.

So, at least, says the Second Section of the European Court of Human Rights at §§20 and 24 of its judgment in Youth Initiative for Human Rights v Serbia, Application no 48135, 25 June 2013. The Second Section cites the now well-known chamber level judgments of Társaság and Kenedi for this proposition, at the same time entirely ducking the task of explaining or justifying why or how its decision to create this new ‘human right’ is consistent or reconcilable with the Grand Chamber’s prior judgments in Leander and Roche (both of which rejected the submission that Article 10 conferred any such right).

As avid readers of this blog will be aware, this issue has already been the subject of extensive domestic litigation in the UK. While Lord Brown may have thought he gave the argument that Article 10 confers a right of access to documents its quietus in Sugar v BBC, the willingness of the Second Section to flout two Grand Chamber decisions (and, indeed, not even to cite them when doing so) means that the forthcoming Supreme Court hearing in Kennedy v Charity Commrs (in which a smorgasbord of 11KBW members will be appearing) should make for interesting viewing.

One might have thought (and even hoped) that the Strasbourg Court would have learned some lessons about the dangers of merrily ‘discovering’ new ‘human rights’ while ignoring, and refusing to grapple with, inconvenient prior Grand Chamber decisions from the MT and Greens v UK,  Frodl v Austria, Hirst v UK debacle. Apparently not.

The judgment also includes a rather trenchant joint concurring opinion from Judges Sajo and Vucinic, in which those legal luminaries effectively say that they think the Grand Chamber decision in Leander is old hat, at least in so far as it concerns this point.

This view, so it is said by the jointly concurring judges, is supported by the fact that another Grand Chamber judgment (which itself did not have much to say about any of these points), Gillberg v Sweden, did not quote the passage from Leander where the Grand Chamber rejected the submission that Article 10 gives a right to access information. Suffice to say that the jointly concurring judges’ further reasoning in support of their position is of a similar calibre.

What is clear from the first sentence of the joint concurring opinion is that Judges Sajo and Vucinic both think that they are justified in inventing this new ‘human right’, and in the process setting the Strasbourg Court up as the pan-European final appellate court for freedom of information matters, by the need to impose greater transparency on former totalitarian ECHR signatory States.

Joe Barrett

Blair, Bush, Iraq, oil: two new Upper Tribunal decisions

Posted on | by Rachel Kamm

The Upper Tribunal has handed down two decisions on Iraq and section 27 FOIA, which raise some interesting procedural points – FCO v Information Commissioner and Plowden GIA/2474/2012 and Cabinet Office and Information Commissioner v Muttitt GIA/0957/2012.

In Plowden, the disputed information was a letter which was relevant to a telephone call on 12 March 2003 between Tony Blair and George Bush during which it was said that they had agreed to say that it was the French who had prevented them securing a UN resolution. The Information Commissioner had ordered the FCO to disclose the information provided by Mr Blair to Mr Bush, but not also the information provided by Mr Bush to Mr Blair. The Tribunal broadly agreed with the Information Commissioner, deciding the appeal under sections 27(1) (international relations) and 35(1)(b) (formulation of Government policy) of the Freedom of Information Act 2000. The Upper Tribunal first considered two preliminary matters, which are of general importance:

  1. Closed hearings. Judge Jacobs found that he could have set aside the Tribunal’s decision on ground that evidence had been given in closed session which could have been given in open session. He emphasised that as much evidence as possible should be given in open session and that, after evidence has been given in closed session, the other party should be told of any evidence that could properly be disclosed (paragraph 10).
  2. Respect for the Tribunal’s expertise. The Upper Tribunal generally will be reluctant to interfere with the (specialist fact-finding) First-tier Tribunal’s assessment of the public interest (paragraph 11). However, less respect will be due where the Tribunal does not have relevant specialist knowledge, for example in relation to the diplomatic consequences of disclosure (paragraph 12).

Having dealt with those preliminary issues, Judge Jacobs went on to set aside the First-tier Tribunal’s decision. It had failed to take account of the benefits of disclosure when assessing the public interest. It had also erred in considering the information line by line, instead of as a package; it was unrealistic to isolate one side of a conversation from the other. The appeal was remitted to the First-tier Tribunal for rehearing. To comply with Article 6 ECHR, that rehearing will be a full reconsideration of the issues which were before the Information Commissioner and it will not be limited to arguments raised by the appellant (paragraph 18).

Judge Jacobs had considered section 27 (international relations) a month earlier, in the Muttitt case. Again, this raised a preliminary issue of general procedural importance. Judge Jacobs found that the parties were not entitled to rely on the reasons given by the First-tier Tribunal for refusing permission to appeal (paragraph 4). These did not supplement the original reasons given by the Tribunal on determining the appeal, which was the decision under challenge. Turning to the substantive issues in the appeal, the disputed documents related to a vist by Mr Blair to Iraq in May 2006. Judge Jacobs found that the Tribunal had erred in law when ordering disclosure, in that it had failed to take into account the nature of the information (in contrast to its content). Reading the First-tier Tribunanl’s reasons as a whole, either it had failed to take account of the circumstances in which the documents came into existence or it had failed to give adequate reasons for its analysis of the information in light of those circumstances.  Judge Jacobs set aside the decision and remitted it for a rehearing of all of the issues raised by the appeal.

In Plowden, Julian Milford of 11KBW was led by James Eadie QC and represented the FCO, with Robin Hopkins of 11KBW representing the Information Commissioner.  In Muttitt, Julian Milford represented the Cabinet Office, Robin Hopkins represented Mr Muttitt and Ben Hooper of 11KBW prepared a written submission on behalf of the Information Commissioner.

Rachel Kamm, 11KBW

Google and data protection: no such thing as the ‘right to be forgotten’

Posted on | by Robin Hopkins

Chris Knight has blogged recently about enforcement action against Google by European Data Protection authorities (but not yet the UK’s ICO). I blogged last month about a German case (BGH, VI ZR 269/12 of 14th May 2013) concerning Google’s ‘autocomplete’ function, and earlier this year about the Google Spain case (Case C‑131/12). The latter arises out of complaints made to that authority by a number of Spanish citizens whose names, when Googled, generated results linking them to allegedly false, inaccurate or out-of-date information (contrary to the data protection principles) – for example an old story mentioning a surgeon’s being charged with criminal negligence, without mentioning that he had been acquitted. The Spanish authority ordered Google to remove the offending entries. Google challenged this order, arguing that it was for the authors or publishers of those websites to remedy such matters. The case was referred to the CJEU by the Spanish courts.

Advocate General Jääskinen this week issued his opinion in this case.

The first point concerns territorial jurisdiction. Google claims that no processing of personal data relating to its search engine takes place in Spain. Google Spain acts merely as commercial representative of Google for its advertising functions. In this capacity it has taken responsibility for the processing of personal data relating to its Spanish advertising customers. The Advocate General has disagreed with Google on this point. His view is that national data protection legislation is applicable to a search engine provider when it sets up in a member state, for the promotion and sale of advertising space on the search engine, an office which orientates its activity towards the inhabitants of that state.

The second point is substantive, and is good news for Google. The Advocate General says that Google is not generally to be considered – either in law or in fact – as a ‘data controller’ of the personal data appearing on web pages it processes. It has no control over the content included on third party web pages and cannot even distinguish between personal data and other data on those pages.

Thirdly, the Advocate General tells us that there is no such thing as the so-called “right to be forgotten” (a favourite theme of debates on the work-in-progress new Data Protection Regulation) under the current Directive. The Directive offers accuracy as to safeguards and so on, but Google had not itself said anything inaccurate here. At paragraph 108 of his opinion, the Advocate General says this:

“… I consider that the Directive does not provide for a general right to be forgotten in the sense that a data subject is entitled to restrict or terminate dissemination of personal data that he considers to be harmful or contrary to his interests. The purpose of processing and the interests served by it, when compared to those of the data subject, are the criteria to be applied when data is processed without the subject’s consent, and not the subjective preferences of the latter. A subjective preference alone does not amount to a compelling legitimate ground within the meaning of Article 14(a) of the Directive.”

It remains to be seen of course whether the Court agrees with the Advocate General. The territorial issue and the ‘data controller’ question are of great significance to Google’s business model – and to those whose businesses face similar issues. The point about objectivity rather than subjectivity being the essential yardstick for compliance with data protection standards is potentially of even wider application.

“This is a good opinion for free expression,” Bill Echikson, a spokesman for Google, said in an e-mailed statement reported by Bloomberg.

Robin Hopkins

RIPA: hacked voicemails and undercover officers

Posted on | by Robin Hopkins

The Regulation of Investigatory Powers Act 2000 (RIPA) has featured prominently in the news in recent weeks, both as regards undercover police officers/“covert human intelligence sources” and as regards the phone-hacking scandal.

Hacked voicemails

This morning, the Court of Appeal gave judgment in Edmonson, Weatherup, Brooks, Coulson & Kuttner v R [2013] EWCA Crim 1026. As is well known, the appellants face charges arising out of the News of the World phone-hacking controversy – specifically, conspiring unlawfully to intercept communications in the course of their transmission without lawful authority contrary to section 1(1) of the Criminal Law Act 1977.

The communications in question are voicemails. Under section 1(1)(b) of RIPA, it is an offence intentionally to intercept, without lawful authority, any communication in the course of its transmission by means of a public telecommunications system (my emphasis). The central provision is section 2(7) of RIPA:

“(7) For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.”

The appellants applied to have the charges dismissed on the grounds that the words “in the course of transmission” in section 1(1) of RIPA do not extend to voicemail messages once they have been listened to (by the intended recipient, that is, rather than by any alleged phone-hacker). They argued that the ordinary meaning of “transmission” is conveyance from one person or place to another and that section 2(7) is intended to extend the concept of “transmission” only so as to cover periods of transient storage that arising through modern phone and email usage, and when the intended recipient is not immediately available. Thus, once the message has been listened to, it can no longer be “in the course of transmission”.

The point had previously been decided against the appellant. The Court of Appeal (the Lord Chief Justice, Lloyd Jones LJ, Openshaw J) took a similar view. While it accepted that the application of section 2(7) may differ as between, for example, voicemails and emails, “there is nothing in the language of the statute to indicate that section 2(7) should be read in such a limited way” (as the appellants had contended) (paragraph 23). Further, the words “has been transmitted” in section 2(7) “make entirely clear that the course of transmission may continue notwithstanding that the voicemail message has already been received and read by the intended recipient” (paragraph 26).

The same conclusion was reached by focusing on the mischief which section 2(7) is intended to remedy, “namely unauthorized access to communications, whether oral or text, whilst they remain on the system by which they were transmitted. As the prosecution submits, unlawful access and intrusion is not somehow less objectionable because the message has been read or listened to by the intended recipient before the unauthorized access takes place” (paragraph 28, quoting an earlier judgment in this matter from Fulford LJ).

The Court accepted that section 2(7) went further than the prohibitions imposed by Directive 97/66/EC concerning the processing of personal data and the protection of privacy in the telecommunications sector (which RIPA sought to implement) and its successor, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (which postdates RIPA).  The Court found, however, that the Directives imposed minimum harmonisation; Parliament was entitled to go further and to set higher standards for the protection of privacy of electronic communications, provided that those additional obligations are compatible with EU law (paragraph 42).

Both the Data Protection Act 1998 and the Computer Misuse Act 1990 also raised their heads. The DPA, for example, contains a public interest defence which is not available under RIPA. It was argued that this risked creation parallel offences without parallel defences, violating the principle of legal certainty. This submission too was rejected (paragraphs 44-45).

The cases will now proceed to trial, apparently to commence in September.

Undercover officers

As regards the activities of undercover police officers, the major issue this week has concerned the alleged smearing of the family and friends of Stephen Lawrence: see for example The Guardian’s Q&A session with undercover-officer-turned-whistleblower Peter Francis.

The other major ongoing case regarding a former undercover officer concerns Mark Kennedy, who (together with others) infiltrated political and environmental activists over a period of years. Claims were commenced in the High Court, with part of the conduct complained of involving ensuing sexual relations between activists/their partners and undercover officers.

Earlier this year, J and others v Commissioner of Police for the Metropolis [2013] EWHC 32 (QB) saw part of the claims struck out. The Court held that the Investigatory Powers Tribunal had exclusive jurisdiction over the claims under the Human Rights Act 1998; it struck out these parts accordingly. It observed that conduct breaching Article 3 (inhuman and degrading treatment) – which included the claims relating to sexual activity – could not be authorised under RIPA, but conduct breaching Article 8 (privacy) could be authorised. Sexual activity with undercover officers did not necessarily engage Article 3.

Those parts of the claims which did not concern the Human Rights Act 1998 (actions at common law and for alleged breaches of statutory duties) were not exclusively within the Investigatory Powers Tribunal’s jurisdiction and were thus not struck out as an abuse of process, notwithstanding the police’s difficulties in presenting its case due to the ‘neither confirm nor deny’ approach to covert sources.

Unlike with the phone-hacking cases, it is not clear when this case will resume before the Court/Tribunal.

Robin Hopkins

Liberty takes action against the British Intelligence Services

Posted on | by Julian Milford

Anyone interested in issues of privacy and data protection cannot have avoided the recent allegations in The Guardian (and now, everywhere else) about blanket surveillance by GCHQ of emails and phone calls between UK residents, when they have been routed in and out of the UK through servers held abroad; and about the use by UK authorities of surveillance information on UK residents collected by the US, without going through the usual domestic legal checks on collection of such information. Liberty has now announced that it is taking legal action against the British Intelligence Services. It will argue that their actions have breached both the provisions of the Regulation of Investigatory Powers Act 2000, and the right to respect for private life, home and correspondence under Article 8 of the European Convention on Human Rights. Liberty’s press release of today (25 June 2013) can be seen at https://www.liberty-human-rights.org.uk/media/press/2013/liberty-issues-claim-against-british-intelligence-servic.php.

Bank Mellat: closed material procedures and FOIA

Posted on | by Julian Milford

Last week, the Supreme Court gave judgment in Bank Mellat v Her Majesty’s Treasury (no.1) [2013] UKSC 38. The Bank Mellat case involved financial restrictions imposed by HMT on the Bank under the Counter-Terrorism Act 2008 (“the 2008 Act”), on the basis that it enabled funding for Iran’s nuclear weapons programme. The High Court and Court of Appeal had both adopted a closed material procedure (“CMP”) – i.e. a procedure in which the court sits in private, and hears evidence and/or submissions without one party either being present or seeing the material – in order to consider sensitive material adduced by HMT which could not be disclosed to the Bank. They had specific statutory authority to do so under the 2008 Act. The Supreme Court did not have such authority. The  relevant questions were whether it was possible for the Supreme Court to adopt a CMP on appeal, in the absence of specific statutory provision; and if so, whether it was appropriate to do so in that particular case. The Supreme Court was faced with the difficulty of reconciling two strong but opposing interests. On the one hand, it was important that the Court should be able to see and consider any relevant material before the High Court and Court of Appeal. On the other, the Supreme Court itself in Al Rawi v Security Service [2012] 1 AC 531 had uncompromisingly set its face against any derogation from the open justice principle. The Supreme Court was divided; but the majority considered that the Court had implied authority to adopt a CMP under its powers conferred by the Constitutional Reform Act 2005, where the lower courts had themselves used a CMP. Nevertheless, the Court was uncomfortable about doing so, and expressed that discomfort in strong terms.

Bank Mellat (no.1) was not, of course, a freedom of information case. But it has important things to say for freedom of information cases. Freedom of information appeals are the classic example of cases which may require a CMP. Submissions must be made about, and evidence given on, the disputed information in the appeal. But that may involve disclosing the content of the information itself. If the party requesting the information was present, this would wholly undermine the purpose of the appeal. So the general points made about CMPs in Bank Mellat (no.1) are of obvious significance for FOIA appeals.

At [68]-[74] of the judgment in Bank Mellat (no.1), Lord Neuberger (giving the majority’s view) made the following general points about the use of closed material by or before appeal courts:

(1)    Where a judge gives an open and closed judgment, it is highly desirable that in the open judgment the judge (i) identifies every conclusion in the open judgment reached in whole or in part in the light of points made or evidence referred to in the closed judgment; and (ii) says that this is what they have done.

(2)    A judge who has relied on closed material in a closed judgment should say in the open judgment as much as can properly be said about the closed material relied on. Any party excluded from the closed hearing should know as much as possible about the court’s reasoning, and the evidence and the arguments it has received.

(3)    On an appeal against an open and closed judgment, an appellate court should only be asked to conduct a closed hearing if it is strictly necessary for fairly determining the appeal. That puts an important onus on legal representatives asking an appeal court to look at closed material. An advocate who wants a closed hearing should carefully consider whether the request should, or even can properly, be made, and advise their clients accordingly. (This would of course be relevant for appeals to the Upper Tribunal from FOIA decisions in the First-Tier Tribunal.)

(4)    If the appellate court decides that it should look at closed material, careful consideration should be given by the advocates and the court to whether it would nevertheless be possible to avoid a closed hearing, on the basis that the court can be addressed on confidential material in open court e.g. by elliptical references. This, again, is particularly relevant to the Upper Tribunal on FOIA appeals.

(5)    If the court decides that a CMP is necessary, the parties should try and agree a way of avoiding, or minimising the extent of, a closed hearing.

(6)    If there is a closed hearing, the lawyers representing the party relying on closed material should give the excluded party as much information as possible about closed documents relied on.

(7)    Appellate courts should be robust about acceding to applications to go into closed session or even to look at closed material.

The general tenor of the judgments is to deprecate any use of CMPs. As Lord Neuberger put it: “any judge, indeed anybody concerned about the dispensation of justice, must regard the prospect of a closed material procedure, whenever it is mooted and however understandable the reasons it is proposed, with distaste and concern.”

Julian Milford