Update on recent Tribunal decisions part 1: the evolving approach to vexatiousness and manifest unreasonableness

Posted on | by Robin Hopkins

In recent months, the major information law issues have involved the government’s vetoing disclosure of the Prince Charles ‘black spider’ letters, its response to the draft new EU Data Protection Regulation, a number of Article 8 decisions concerning police and criminal records and changes to RIPA. On this last point, note that as of last Thursday, local authorities require a magistrate’s approval for authorising directed surveillance.

There have also been a number of First-Tier Tribunal decisions of late, touching on some of the issues most commonly encountered by public authorities and requesters. Over the next week, Panopticon brings you a summary of these recent decisions, beginning with insights into “vexatious” (s. 14(1) of FOIA) or “manifestly unreasonable” requests (regulation 12(4)(b) of the EIR). These are cases in which the underlying concepts appear straightforward, but their practical application can often be tricky. These provisions are important for those – local authorities in particular – who need to make robust judgment calls about persistent and burdensome exercises of rights to information.

Requests by members of groups: aggregate with caution

The potential pitfalls for public authorities are illustrated by Pringle v IC and Bury MBC (EA/2012/0062), where the Tribunal overturned a s. 14(1) decision. The case concerned a prominent site, the Longfield Suite in Prestwich, to which the local “Save our Suite” group was committed. Mr Pringle was a member of that group; his one and only request for information had 11 parts, some of which apparently chimed with the group’s history of requests about business plans for the Suite.

The Council’s s. 14 decision was based on this collective pattern of requests and its resultant burden. On the evidence, however, the Tribunal found that the Council and the IC had too readily treated Mr Pringle’s requests together with those of the campaign group, and had given too much weight to questions asked through other fora, such as public meetings, the Audit Commission and the local MP. These were “legitimate avenues of enquiry, outside of the Freedom of Information Act and necessary in a democratic society.” The Council had also failed to ask Mr Pringle to narrow his request, and had not sought to answer as much of the 11-part request as possible.

One-man investigations can cross the line

In contrast, in Bragg v IC and Babergh DC (EA/2012/0107), the Tribunal upheld a refusal based on regulation 12(4)(b) of the EIR. The Council had taken enforcement action, culminating in an injunction and consent order, against a landowner (not the requester) for impermissible use of a private airfield.

The requester sought information about the enforcement and associated legal actions, his belief being that information was improperly withheld during disclosure for a planning inquiry. He questioned the “honesty and integrity” of the witnesses and argued that there was nothing in the EIR to prevent it being used as an investigative tool for the exposing of what the requester alleged was unlawful conduct which the public authority had covered up.

The Tribunal was unimpressed by his allegations. It concluded that:

“The Appellant has not challenged the High Court decision… by way of any of the routes of challenge such as judicial review or even direct complaint to the police and/or the Crown Prosecution Service. He appears to have set himself up as an investigator of wrongdoing that he perceives but he has not allowed other more appropriate bodies to investigate and consider any of the issues he believes lie at the heart of his information requests.”

The Tribunal found that he had crossed the thin line between persistence and obsession, straying into unreasonableness and becoming hectoring in his tone of enquiry in his 14 requests to the Council.

The Tribunal also took into account that Babergh District Council is a small public authority, with limited resources to devote to information requests.

Interestingly, the Commissioner submitted that, because this request was vexatious, the requester was not entitled to seek the same information in future requests. Here the Tribunal disagreed: “If the request is made several years from the date of the original there may well be entirely different considerations in play. At the very least, whether the request could be regarded as manifestly unreasonable after the passage of several years without other requests on the same matter in the intervening period would have to be re-examined and judged on the facts at that time”.

Conspiracy theories: groups and individuals

The Tribunal’s decision in Beswick v IC and Thames Valley Police (EA/2012/0040) draws together some of the themes discussed above. The requester sought information about the position in which the body of Dr David Kelly, the weapons inspector whose death in 2003 was investigated by the Hutton Inquiry, was found. He contributed to online discussion groups focusing on suspicions about Dr Kelly’s death and dissatisfaction with the conclusions of the Hutton Inquiry. Some other members of those groups had also made requests for related information to the same police authority. It contended that these requests were made in concert, and that this reinforced its reliance on s. 14 in refusing Mr Beswick’s request.

The Tribunal’s approach was first to consider Mr Beswick’s request in isolation. It noted the Commissioner’s long-standing five-part guidance on applying s. 14, but “felt that there was a compelling counter-argument that the Commissioner’s guidance should not even guide the Tribunal’s deliberations since this might have the appearance of giving  the approach of one party a higher status than those from the other parties”. The same point was made by the Tribunal in E Rex Makin v IC and Legal Services Commission (EA/2011/0163).

The Tribunal in Beswick did, however, derive assistance from the sorts of questions considered by the Tribunal in the oft-cited case of Rigby v IC and Blackpool NHS Trust (EA/2009/0103); [2011] 1 Info LR 643. These questions include: whether the request formed part of an extended and unfounded campaign to expose alleged improper or illegal behaviour, whether there was a tendentious and haranguing tone, whether the request indicated obsessiveness and the overall burden imposed (by Mr Beswick’s requests only, excluding those of the other members of the online discussion groups). By applying these factors and in light of the Hutton Inquiry’s conclusions, the police’s reliance on s. 14 was upheld.

Unreasonable burden can suffice for a s. 14 finding

Historically, the Commissioner and Tribunal have been reluctant to support reliance on s. 14(1) for reasons solely attributable to the cost and burden of compliance with the request. It was felt that s. 12 was intended to cater for those concerns. The costs of redaction, however, cannot be taken into account for s. 12 purposes. In Salford CC v IC and TieKey Accounts (EA/2012/0075), the Council sought to rely on s. 14 to argue that the burden imposed by the redactions that were likely to be required in order to comply with the request was unreasonable and disproportionate. The Commissioner initially disagreed, but – following the decision Independent Police Complaints Commission v IC (EA/2011/0222) – agreed that cost burden alone could support reliance on s. 14. The Tribunal in Salford agreed, and the Council’s appeal was allowed.

The evolving approach

As the above decisions illustrate, there is no uniform approach to s. 14 at a Tribunal level. The Commissioner’s five guiding questions remain helpful, but Tribunals are increasingly disinclined to give them much weight at all. A broader, dictionary-definition approach is preferred by some Tribunals, who ask simply whether the request tends to cause unjustified trouble or interference (see for example Graham and Ainslie). The questions posed in Rigby can, depending on the case, be very instructive. There is an increasingly strong case for giving the cost burden serious weight under s. 14.

Two upcoming developments should be followed with care. First, the Commissioner is in the process of revising his guidance on how to approach s. 14. Secondly, the Upper Tribunal is to hear a number of appeals on these issues together in the coming weeks: Ainslie, Dransfield and Craven. Its decision will hopefully bring some clarity to these issues.

In general however, most cases of this type turn on the quality of the evidence and the public authority’s efforts to be reasonable. That is likely to remain true whatever these new developments bring.

Robin Hopkins

Enhanced criminal records certificates and the right to make representations

Posted on | by Anya Proops KC

Last week I blogged about an important High Court judgment concerning the legality of the Government’s Child Sex Offender Disclosure Scheme: X(South Yorkshire) v Secretary of State for the Home Department. In that judgment, the court held that, in order to be lawful, the scheme would need to build in a requirement that, in general, registered sex offenders be given an opportunity to make representations prior to the disclosure of their data to third parties. It is worth noting that the approach adopted in X chimes very closely with the approach adopted in a case concerning enhanced CRB checks which was decided on 18 October 2012: R (on the Application of J) V Chief Constable Of Devon & Cornwall [2012] EWHC 2996 (Admin).

The case of J involved a nurse who objected to the fact that information had been recorded in her enhanced criminal record certificate (EHRC) without her knowledge. The information concerned allegations which had been made against J in connection with incidents in which she had apparently been heavy handling elderly patients. J claimed that the information, which was contained within the ‘certain other information’ section of the certificate, was partial and did not give a complete picture of the circumstances surrounding the incidents in question. She claimed that inclusion of the information in the EHRC, which had been provided to J’s prospective employers, was disproportionate and constituted an unlawful interference with her right to privacy under Article 8. The court agreed. The court went on to make clear that the decision-making process relating to the EHRC had in any event been fatally flawed as a result of the fact that J had not been given an opportunity to make representations about the information prior to its inclusion in the certificate.

What we see emerging from both X and J is a re-affirmation of the importance of the principle of natural justice in the context of the disclosures of information about individuals which are designed in principle to protect vulnerable third parties against the risk of harm.

Anya Proops

Disclosure of sex offender information – new high court judgment

Posted on | by Anya Proops KC

The High Court has today handed down an important judgment on the legality of the Government’s Child Sex Offender Disclosure Scheme (CSOD): X(South Yorkshire) v Secretary of State for the Home Department [2012] EWHC 2954 (Admin). CSOD is a non statutory scheme which police forces nationally have been free to adopt since 2010. It enables members of the public to ask the police to provide details of a person who has some form of contact with children with a view to ascertaining whether that person had convictions for sexual offences against children or whether there is other relevant information about him or her which ought to be made available.

X is a registered child sex offender. In February 2011, South Yorkshire Police contacted X and informed him that it had adopted CSOD and that its adoption might affect him. X went on to mount a judicial review challenge to the guidance under which CSOD had been constituted (the guidance). The challenge was brought on two separate grounds. First, it was argued that the guidance did not adequately recognise the imperative for police forces to consult with individual sex offenders prior to disclosing information about them under CSOD. Second, it was argued that because, in its opening paragraphs, the guidance provided that there was a presumption in favour of disclosure, the guidance did not properly reflect the need for a balancing exercise to be conducted prior to any decision to disclose being taken.

On the first of these issues, the High Court, presided over by the QB President and Hickenbottom J, accepted that the guidance did not sufficiently reflect the need to consult with individual sex offenders prior to effecting disclosure. In particular, the court held that:

In the light of the considerations we have set out, it follows, in our judgment, that the CSOD Guidance ought to have set out a requirement that the decision maker consider, in the case of any person about whom disclosure might be made, whether that person be asked if he wishes to make representations.  In the generality of cases without that person being afforded such an opportunity, the decision maker might not have all the information necessary to conduct the balancing exercise which he is required to perform justly and fairly.  Whilst each case will turn on its own facts, it is difficult to foresee cases where it would be inappropriate to seek representations, unless there was an emergency or seeking the representations might itself put the child at risk´(§41)

On the second issue, the court held that, notwithstanding the allusion to a ‘presumption’ in favour of disclosure in its opening paragraphs, the guidance did properly incorporate a requirement that the police undertake a balancing exercise which took into account both the rights of the sex offender not to have the information disclosed and the need to protect individual children from harm. The court held that the regime embodied in the guidance properly complied with the approach which was approved
in R v Chief Constable of North Wales ex p Thorpe [1999] QB 396.

The judgment is interesting and important not least because it suggests that the current legal regime governing the disclosure of information relating to sex offenders is still far removed from a ‘Megan’s law’ US-style approach to disclosure. Thus, in contrast with Megan’s law, where the general public are allowed access to details of convicted sex offenders living in a particular area, sex offenders in this country retain a right to privacy in respect of information relating to their offences, albeit that that right may lawfully be interfered with on a case by case basis. 11KBW’s Jason Coppel appeared on behalf of the Home Secretary.

Anya Proops

Only smarties have the answer – collective cabinet responsibility and the sale of Rowntree Mackintosh

Posted on | by Anya Proops KC

The question of whether the convention on collective cabinet responsibility operates, in effect, as a trump card in the FOIA context has been considered in a number of tribunal cases (see further for example the Lamb case concerning a request for disclosure of the Iraq war cabinet minutes and the Cabinet Office case concerning cabinet discussions over the Westland takeover (“the Westland case”)). Last week, in Cabinet Office v IC, the First-Tier Tribunal handed down a decision in which it reconfirmed the principle that the convention, whilst undoubtedly an important consideration in the FOIA context, does not create any absolute bar against disclosure.

The facts of the Cabinet office case were as follows. In 1988, Rowntree Mackintosh, the well-known UK confectionary group, was acquired by Nestlé. The takeover was hugely controversial at the time. The decision to approve the takeover and not to refer it to the Monopolies Commission was taken by Lord Young, then Secretary of State for Trade and Industry. In 2008, a request was made by a Mr Aitcheson (A) for disclosure of all documents held by the Cabinet Office (CO) relating to the takeover dated between April and August 2008. That request was largely refused by the CO on an application of ss. 35(1)(a) and (1)(b) (respectively the government policy exemption and the ministerial communications exemption). In September 2010, the tribunal handed down its decision in the Westland case. In that case, the tribunal decided that the convention on collective cabinet responsibility did not operate so as to prevent disclosure of the minutes of the meeting of the cabinet in 1986, in which Michael Heseltine resigned due to his disagreement with colleagues over whether the government should intervene in the investment by an American company in the British helicopter manufacturer Westland plc. That decision was not vetoed by the Government (cf. the Lamb decision which was vetoed by the government). In light of the decision in the Westland case, A resubmitted his request to the CO for disclosure of information relating to the Rowntree takeover. The request was again refused. On this occasion the CO took the position that there were five documents which were exempt from disclosure under ss. 35(1)(a) and (b). It also refused to confirm or deny whether it held information revealing cabinet discussions of the takeover on an application of s. 35(3)).

The Commissioner concluded that, whilst the five documents fell within the ambit of the exemptions provided for under s. 35, the public interest balance fell in favour of disclosure. He also concluded that, whilst the CO had been entitled to conclude that s. 35(3) was engaged, the public interest balance weighed in favour of the CO being compelled to confirm or deny whether it held information revealing cabinet discussions of the takeover. The CO appealed against the Commissioner’s decision. It did so particularly on the basis that the decision failed to give due weight to the very strong public interest in upholding the convention on collective cabinet responsibility.

The CO’s appeal was unsuccessful. The Tribunal (chaired by Judge Angel) agreed with the Commissioner that both under s. 35(1) and under s. 35(3)  the public interest balance weighed in favour of disclosure. In reaching this conclusion, the Tribunal relied in particular on the following considerations:

–       the age of the information – the decision in question was now more than 20 years old

–       the move to a ’20 year rule’ – at the time of the request, the government had already made a policy decision to amend existing legislation so as to reduce the 30 year rule for historical records to be transferred to the National Archive to 20 years and the age of the requested information should be considered in that context

–       key characters had left the political stage – Lord Young was no longer in government at the time of the request and whilst he continued act as an adviser to the government he did so in relation to policy issues which were unrelated to takeover issues; he was not even performing that advisory role by the time of the internal review

–       ‘chilling effect’ unlikely – the CO’s arguments that disclosure would have a chilling effect on Cabinet discussions could not be accepted. This was particularly given the age of the information in issue. (The Tribunal was no doubt influenced on this issue by the fact that the disclosure in the Westland case had not apparently had any notably chilling effect on subsequent cabinet discussions)

–       diminished need for a ‘safe space’ – the CO’s  arguments that it needed to preserve a ‘safe space’ for cabinet discussions were in any event weakened by the fact that the regime governing takeovers had fundamentally changed by the time of the request. Thus, there was no live policy debate within government which required protection

–       strong public interests in disclosure – there were particularly strong public interests in favour of disclosure. Relevant here was not only the particularly controversial nature of the Rowntree takeover but also the fact that Lord Young had been exercising a ‘quasi-judicial’ role in respect of the takeover. Given his quasi-judicial role, there was a particularly strong public interest in revealing information which showed whether or not his decision had been compromised by improper political or other pressure.

It remains to be seen whether the government will now exercise its powers of veto to prevent the information being disclosed. 11KBW’s James Cornwell acted for the CO. Robin Hopkins acted for the Commissioner.

Anya Proops

Prince of Wales Correspondence Vetoed

Posted on | by Christopher Knight

In his post of 19 September 2012, Robin Hopkins commented on the decision of the Administrative Appeals Chamber of the Upper Tribunal in Evans v IC & Seven Government Departments [2012] UKUT 313 (AAC), in which Walker J held that it was in the public interest that the majority of the correspondence from The Prince of Wales to those Government departments to be disclosed.

Instead of bringing an appeal, the Attorney-General today announced that he was vetoing disclosure under s.53 FOIA. In a ten page Statement of Reasons the AG stated that he had taken account of the views of the Cabinet, former Ministers and the Information Commissioner (who had not supported disclosure). Of particular note is the reason given by the AG that “it is of very considerable practical benefit to The Prince of Wales’ preparation for kingship that he should engage in correspondence and engage in dialogue with Ministers“. Urging views upon Ministers comes, in the view of the AG, within the ambit of advising or warning the Government under the tripartite convention. The AG adds that the contents are very frank and concern The Prince’s deeply held personal beliefs, but contain nothing improper.

The veto is concerned only with the correspondence of The Prince of Wales at issue in the Evans case. It remains to be seen whether the ongoing FOIA litigation concerning access to the Duchy of Cornwall’s information will result in a similar response.

Update: Following the announcement of the Attorney-General’s veto, the Guardian (for which Mr Evans writes) has announced that it intends to seek judicial review of the decision under s.53. As far as I am aware, the small number of vetoes previously issued have not been challenged by way of judicial review (see Lamb v IC (EA/2009/0108) at [5]).

Christopher Knight

Board minutes of a public/private joint venture confidential and commercially sensitive

Posted on | by Robin Hopkins

Joint ventures between the public and private sectors are increasingly common. They are often a focus for vigorous political debate over issues such as the costs involved, the savings to the public purse, the profit to the private sector partner, and allegations of conflicts of interest. While those are political arguments on which Tribunals take no view, they do point to the significant public interests that are engaged when considering access to information. So said the Tribunal in David Orr v IC and Avon and Somerset Police Authority (EA/2012/0077), a recent decision notable for grappling with access to information about such a public/private joint venture.

South West One Limited (“SW1”) is a company formed in 2007 as a joint venture by three West country public authorities (together owning 25% of the company) and IBM (75%) to create for their own use and promote and sell to other authorities IT support systems of various kinds. Given its membership of the board of SW1, the second respondent police authority held minutes of its board meetings. The requester asked for that information. The police authority refused, relying on ss. 41 (actionable breach of confidence) and 43(2) (prejudice to commercial interests) of FOIA. An important feature here was that the joint venture agreement contained confidentiality clauses, including one providing that “each of the parties… shall hold in confidence… any financial or other information in respect of the company or the business”. The Commissioner upheld the refusal, finding no evidence that the agreements were being used to circumvent FOIA improperly.

The Tribunal agreed. It rejected the requester’s argument that SW1 should be treated as a public authority for FOIA and EIR purposes. It also upheld reliance on s. 41. It found that redactions would not suffice to remove confidentiality:

“… removal of the name of the targeted purchaser might not conceal its identity from well – informed readers. More fundamentally, board minutes are, by their nature, confidential information. They record disagreements and minority opinions. They should frankly describe the inner workings of the company, whenever significant issues are discussed. It is important in the shareholders` interests, that board minutes fully reflect what has been transacted.”

As to the prospects of success for a public interest defence to an action for breach of confidence, the Tribunal noted the police authority’s sympathy with the requester’s position: “any loss of transparency or “democratic deficit” arising from the creation of SW1 was an inevitable consequence of joint ventures involving public and private sector entities working together through a limited company.”

The Tribunal approached the public interest defence as follows (paragraph 32):

“We have regard, on the one hand, to what is already in the public domain and, on the other, to the undoubted importance of transparency in the operation of joint ventures, in so far as that is consistent with the proper commercial interests of the company thereby created, here SW1. If a joint venture company has been formed for the specific purpose of frustrating the duties of disclosure enacted in FOIA; if public funds are being needlessly squandered in a badly – managed business; if serious conflicts of interest are or may be distorting the company`s operations, then there may be a strong case for disclosing information which reveals such facts.”

None of those concerns arose here, and an action for breach of confidence would not be defeated.

Similar considerations meant that reliance on s. 43(2) would also succeed here. On this issue, the Tribunal observed (paragraph 37) that even where a joint ventures is between public authorities alone (i.e. without the involvement of a private sector partner), the case for reliance on s. 43(2) may be equally strong.

For further analysis of this case, see the Local Government Lawyer.

Anya Proops represented the police authority.

Robin Hopkins