11KBW Information Law Reports with JUSTIS, 4th edition update released

Posted on | by Panopticon Blog

The fourth edition of the Information Law Reports is now available. Reported cases include: Kennedy v IC, All Party Parliamentary Group on Extraordinary Rendition v IC & FCO, Breeze v IC and the Chief Constable of Norfolk Constabulary and the Crown Prosecution Service, Bolton v IC & East Riding Yorkshire Council and Cranfield University v IC

The reports are edited by Timothy Pitt-Payne QC, Anya Proops, and Robin Hopkins, three of the leading practitioners in the field of information law and members of 11KBW’s Information Law Group.

The reports were written by Members of the Information law team including  Timothy Pitt-Payne QC, Anya Proops, Robin Hopkins, Jane Oldham, Clive Lewis QC, Akhlaq Choudhury, Julian Milford, Holly Stout and Rachel Kamm.

For more information on the Information law reports and how you get your free trial click here

Restriction on Local Authority surveillance

Posted on | by James Goudie KC

The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2012, SI 2012/1500 (“the 2012 Order”), made on 11 June 2012 and coming into force on 1 November 2012, restricts the circumstances in which local authorities may authorise directed surveillance under the Regulation of Investigatory Powers Act 2000 (“RIPA”).  The 2012 Order amends the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010, SI 2010/521 (“the 2010 Order”), which prescribes the offices, ranks and positions of the individuals within a public authority who have power to grant authorisations for the carrying out of directed surveillance, as defined by s26(2) of RIPA, and sets out the restrictions on the circumstances in which authorisations can be granted.

Article 2(4) of the 2012 Order inserts a new Article 7A into the 2010 Order, to impose a new restriction on individuals holding a prescribed office, rank or position in any county council in England, a London borough council, the Common Council of the City of London in its capacity as a local authority, the Council of the Isles of Scilly, or any county council or county borough council in Wales. Such an individual may not now grant an authorisation for the carrying out of directed surveillance unless it is for the purpose of preventing or detecting a criminal offence and it meets the condition set out in New Article 7A(3)(a) or (b). Those conditions are that the criminal offence which is sought to be prevented or detected is punishable, whether on summary conviction or on indictment, by a maximum term of at least 6 months of imprisonment, or would constitute an offence under sections 146, 147 or 147A of the Licensing Act 2003 or section 7 of the Children and Young Persons Act 1933.

Information Law in the Facebook Age

Posted on | by Anya Proops KC

Facebook has now been in existence for some eight years. Its active users exceed 900 million. However, we are still very much in the early days of understanding how information law applies to information, including personal data, which is stored and shared on Facebook. In this context, it is worth noting two recent judicial decisions which bring into sharp focus the way in which information on Facebook may be both used and misused.

The first case involved a claim brought in the High Court by Nicola Brookes. Ms Brookes had been subject to extremely serious abuse on Facebook after she posted a comment online supporting a contestant on the X-Factor. The abuse included the setting up of a fake Facebook page which purported to be in her name and which resulted in Ms Brookes being falsely accused of being a paedophile and drug-user. Ms Brookes’ abusers of course operated anonymously so there was no way for Ms Brookes to identify them merely by use of the site. Having then apparently failed to obtain details of the identity of the abusers directly from Facebook, Ms Brookes was obliged to apply to the court for a Norwich Pharmacal order requiring Facebook to disclose the names, email addresses and IP addresses of the people who had launched the abusive messages. It is understood that this may be the first case in which an individual has been able to secure a court order requiring Facebook to disclose personal data about its users. No doubt, this judgment (which it seems has yet to be reported) sends out an important message to those individuals who would wish to engage in anonymous cyber-bullying. However, query just how much reassurance the judgment gives to those who realistically are not in a position to incur the considerable costs entailed on engaging in the type of litigation which Ms Brookes was obliged to undertake.

The second case involved the application of s. 40 FOIA (the personal data exemption) to the names of a number of Youth Councillors, including a number of Youth Councillors who were minors, in circumstances where it was discovered after the Commissioner issued his decision notice that many of the names could be found by accessing an effectively public-facing Facebook page: Morley v IC & Surrey Heath Borough Council (EA/2011/0173).

The background to the Morley case was as follows: in 2010, the Council approved a planning application to allow for the creation of a recreation park within its area; as part of the planning process the Council unofficially consulted the Surrey Heath Youth Council; the Youth Council is funded by Surrey County Council and comprises youth councillors who are all aged between 13 and 19; after the planning application was approved, Mr Morley, who objected to the development, requested disclosure of the names of the members of the Youth Council who had been consulted by the Council; that request was refused by the Council on the basis that the names amounted to personal data which were exempt from disclosure under s. 40. It appears that after the Council refused Mr Morley’s request, Mr Morely discovered that the Youth Council had a Facebook page and, further, that information on that page included the names of various Youth Council members along with their photographs. Mr Morley’s position was that all the names should be released on the basis that there is a strong need for the planning process to be fully transparent and that this principle applied equally to those who are unofficially consulted and, indeed, irrespective of whether they may have been minors at the time they were consulted or, further, at the time of the request. He further submitted that there was in any event no proper justification for withholding the names of those Youth Councillors who had voluntarily agreed to place their data on a Facebook page which was open and accessible to anyone who registered with Facebook. The Commissioner and the Council argued before the Tribunal that all of the names should be withheld, not least because it could not be assumed that the individual Youth Councillors listed on the Facebook page had been listed at the time of the request.

By a majority decision, the Tribunal concluded that s. 40 was not engaged with respect to the Youth Councillors who were listed on the Facebook page but that it was engaged in respect of the other Youth Councillors. With respect to those Youth Councillors who were listed on Facebook, the Tribunal held as follows:

’77. … their decision to put their names and photographs into the public domain considerably diminishes the strength of the respondent’s arguments for why disclosure of their names would not be fair. In particular, arguments that they may not have expected that the information would be disclosed, that they have not consented to their names being disclosed, and that disclosure would cause them distress, rapidly fall away, in our view, where the Youth Councilors have themselves chosen to make the information available in a widely used and easily accessible social networking site, without placing any restrictions on access. In our view, it cannot be said to be unfair to disclose the names of the Youth Councillors whose names appear on Facebook’.

With respect to the argument that the names should still be withheld because it could not be assumed that the individuals in question were listed on Facebook at the time of the request, the tribunal said this:

’80. However, while we acknowledge the problems identified by the Council and Commissioner, FOIA does not require a public authority to comply with a request only when the information it holds precisely matches what the requester has asked for. A requester will often have the disadvantage of not knowing exactly what the public authority holds. What the public authority must do in this situation is to engage with the requester, pursuant to its obligations under section 16 (obligation to provide advice and assistance), to explore whether the information it does hold, even if imperfect, can satisfy the request. The Council has not done this. We do not criticise it. We are mindful that the Council was not aware of the Facebook page at the time that it refused the request, and in any event has taken the position that the information is exempt. However, the mismatch between what the Appellant has requested and what the Council can provide is not itself a reason for refusing to disclose the information under section 40(2), nor is it a basis on which disclosure can be said to be unfair’.

With respect, it is not entirely clear how these points answer the argument which the Commissioner and the Council was advancing. But perhaps the more important point emerging from this decision is that it suggests that individuals, even where they are minors, must have a substantially lower expectation of privacy in respect of their personal data in circumstances where they opt to place that data on an effectively unrestricted Facebook page.

Anya Proops

Important new privacy judgment: police retention of protestor’s data not an Article 8 infringement

Posted on | by Robin Hopkins

The Admin Court (Gross LJ and Irwin J) has handed down judgment this week in Catt v Association of Chief Police Officers and Commissioner of Police of the Metropolis [2012] EWHC 1471 (Admin). It is an extremely important judgment on Article 8 ECHR in the context of personal information retained for policing purposes. It is also notable for its analysis of protest as an inherently public activity.

The background

ACPO launched a National Domestic Extremism Database containing information provided by police forces. The Metropolitan Police subsequently assumed responsibility for the database. The database contained information relating to the attendance by the claimant (an 87-year old protestor of good character) at various political protests made by a group called “Smash EDO”. Smash EDO opposes a US arms manufacturer with a factory in Brighton; its activities have often involved violent disorder and criminality (though apparently not by the claimant), necessitating a substantial police presence. Police officers overtly gathered information (including photographic and video material) at those protests. They then compiled reports on the protests, identifying a number of individuals including the claimant. The information at issue in this case comprised those sorts of reports – they were about incidents rather than the claimant per se, although the claimant was identified in the reports. The defendants retained that information pursuant to the statutory Code of Practice on the Management of Police Information, made under the Police Acts 1996 and 1997, and associated Guidance on the Management of Police Information.

The issues

The overarching issue was whether this infringed Mr Catt’s rights under Article 8 ECHR, the right to respect for private life.

It is important (if not entirely surprising) to note how the parties and the Court saw Article 8 and the Data Protection Act 1998 interacting (see paragraph 6(iv)). All agreed that the DPA was theoretically in play, but added nothing: if the Article 8 claim succeeded then the DPA claim was not needed; if Article 8 was engaged, but the interference was justified, then the DPA claim would automatically fail; if Article 8 was not engaged, the prospects of success under the DPA were negligibly remote.

The issues were therefore: (i) whether there was an interference with the claimant’s rights under Article 8(1), and (ii) if so, whether this interference was justified. The Court said no on both counts, by application of the authorities to three crucial findings.

Crucial findings

First, the Court accepted the need for such information to be retained by the police. Gross LJ said this at paragraph 19:

“… the use of intelligence is a fundamental policing tool.  Investigators need the ability to identify relationships within protest groups. Likewise, they need to be able to identify individuals associated with the use of particular tactics, together with those with a propensity to violence, disorderly behaviour and organised coordinated actions.  Although Mr. Catt has not been convicted of any offence, the evidence, which again I accept, is that his close association with violent members of Smash EDO and knowledge of this association is of intelligence value.  Such knowledge forms part of a “far wider picture of information”… needed by the police, inter alia, to investigate incidents of criminality and to assist the policing of future events.”

Secondly, “the essential nature of such activity [protesting] is that it is of a public nature. Indeed, its very object is to make others aware of his views and the causes to which he lends his support” (paragraph 36).

Thirdly, given the violent disorder which characterised Smash EDO’s activities, it was reasonable to expect the police to gather and retain such information. This was especially so as this information had been gathered by over rather than covert policing.

Issue 1: Article 8(1) neither engaged nor infringed

Given those findings, the Court concluded that the claimant’s rights under Article 8(1) were not engaged at all. The claimant’s reliance on R (Wood) v Commr of Police of the Metropolis [2009] EWCA Civ 414 did not assist: the facts were different, and it would be “unreal and unreasonable” to find an infringement of Article 8(1) in the present case.

Issue 2: interference would in any event be justified

The Court went on to conclude that even if there had been an interference with Article 8(1), this would be justified. The claimant had argued inter alia that he was not personally suspected of criminality and that there was no democratic oversight of the database system. The defendant argued inter alia that, given Smash EDO’s activities, the retention of this sort of information – police reports as opposed, for example, to photos or video material – was reasonably necessary and proportionate.

Gross LJ (with whom Irwin J agreed) had “no hesitation in concluding that any interference with Mr. Catt’s rights was amply justified under Art. 8.2”.

His reasons included the following (paragraph 64):

“Any interference with Mr. Catt’s Art. 8.1 rights was at the margins. The reports, the product of overt policing, did no more than record Mr. Catt’s public activities, the very object of which was to convey his views to as wide an audience as possible.  The reports were compiled and retained for intelligence purposes, in accordance with the Code and the Guidance, with a view to an appropriate police response to a campaign marred by serious, persistent criminality and posing a significant public order problem.”

Irwin J agreed that there was no expectation of privacy here, applying the approach in Campbell v MGN [2004] UKHL 22.

At paragraph 70 he added that it was not easy to see “… how it can affect the engagement of Art 8.1 that the material is recorded by police officers as opposed, say, to journalists; or collated and held within the National Extremism Database, as opposed to a local history archive in the town where the demonstrations have been held.  The latter distinction was advanced by Mr Owen (“the entries were not recorded on any database…”).  The issue is not whether the individual concerned likes or dislikes the thought of the data being held by this or that body: the issue is whether a reasonable expectation of privacy arises.  In my judgment, it does not arise in respect of any of the information in this case.”

Irwin J did, however, add this observation at paragraph 70, which might give rise to interesting arguments in future cases on such issues:

“Different questions might arise if material recorded in that context were collated with material which was private in its nature.  That does not arise in this case.”

What about ongoing retention of this information?

Gross LJ thought it sensible for the police to review its retention of this sort of information when the Smash EDO campaign concludes, but he agreed with Irwin J’s comments at paragraph that 73:

“… even when the Smash EDO campaign ends, it may yet be justifiable to retain some or all of this information.  The picture here is that there are connections between this group and parts of the animal rights movement, active before this group was formed.  It may be a legitimate function of intelligence to keep records of this group after it has ceased to be active, the better to understand the risks associated with after-coming groups with overlapping membership.  To my mind, there is no expectation that a review at a suitable point in the future will conclude otherwise.”

Robin Hopkins

Statutory bars on disclosure: don’t construe too widely

Posted on | by Robin Hopkins

The Tribunal’s decision in Cubells v IC and Wrightington, Wigan & Leigh NHS Foundation Trust (EA/2011/0183) is notable for the approach taken to construing a statutory bar on disclosure for the purposes of s. 44 of FOIA. There are hundreds of bars. Usually, they were drafted prior to FOIA. Tricky issues often arise as to how widely the prohibition extends, especially in a FOIA world.

Mr Cubells’ mother died while in the care of the Trust. He complained to the Parliamentary and Health Service Ombudsman, who declined to investigate. Mr Cubells then made a request under FOIA for information passed by the Trust to the Ombudsman pursuant to his complaint, and internal Trust information about the complaint.

The Trust refused the request, relying on s. 44 of FOIA and the prohibition of disclosure imposed by s. 15 of the Health Service Commissioners Act 1993, which provides that:

“Information obtained by the [Ombudsman] or his officers in the course of or for the purposes of an investigation shall not be disclosed except-

(a) for the purposes of the investigation and any report to be made in respect of it…”

The Commissioner agreed – but the Tribunal did not. Interestingly, it allowed and considered submissions by Maurice Frankel of the Campaign for FOI in support of Mr Cubells’ appeal. Relevant points from those submissions included the following. The prohibition was designed to provide reassurance to those supplying information that no improper disclosure of that information will occur. The prohibition should not interpreted as meaning that any third party holding information which it happens also to have supplied to the Ombudsman was itself bound by the same prohibition. Otherwise, strange results would follow. For example, the Trust would be prevented from even sharing information which had been passed to the Ombudsman with a patient’s GP or another health authority into whose area the patient moved. On the ICO’s reading, the Trust would be bound indefinitely by a prohibition on disclosure apparently aimed not at the Trust but at the Ombudsman. That cannot have been what Parliament intended.

The Campaign for FOI also raised arguments under the European Convention on Human Rights: an outcome that resulted in a blanket prohibition on the disclosure of information about the medical treatment of a family member would breach Article 8 ECHR. Also, on the ICO’s reading, the prohibition would extend to a complainant as well – in other words, if a complainant passed information to the Ombudsman, they would thereafter be prohibited from disclosing it further. That would breach Article 10 ECHR.

Before the Tribunal, the ICO relied on the judgment of Mrs Justice Dobbs in R (on the

application of Kay) v Health Service Commissioner [2008] EWHC 2063 (Admin) in contending that the prohibition should regarded as extending to both those to whom information was passed by the Ombudsman as well as those from whom the Ombudsman obtained it.

The Tribunal disagreed. It distinguished Kay and concluded that the prohibition:

“should be interpreted as imposing a prohibition only on the Ombudsman and her staff. It may follow, from what we have said above, that the prohibition should continue to apply, or should be imposed, if the Ombudsman needs to disclose any of the information she has obtained to a third party. There is no inconsistency there. The information, once obtained during an investigation, should obviously not be released from the prohibition on disclosure just because it becomes necessary for the Ombudsman to disclose it to a third party. There is no logical reason, however, for the prohibition to be imposed on those holding information that has been shared with the Ombudsman. The profoundly unattractive consequences which Mr Frankel outlined demonstrate the absurdity of such an outcome.”

In reaching its conclusion, the Tribunal did not need to consider the ECHR arguments. Those arguments may well, however, be raised again in future cases.

Robin Hopkins

Section 40 FOIA, NCND and the public interest

Posted on | by Robin Hopkins

The requester (anonymised for the purposes of the decision) in Mr A v IC and The Health Professions Council (EA/2011/0223) asked for information about the response given by a named registrant to an investigation allegedly being carried out by the HPC into that registrant’s fitness to practice. The IC found that a ‘neither confirm nor deny’ response was appropriate, given that to confirm or deny (NCND) whether or not the HPC held the information requested would in and of itself disclose to the public whether there a complaint as to the registrant’s fitness to practise had been made. This would breach the first data protection principle. Section 40(5)(b)(i) FOIA therefore applied.

The Tribunal agreed. Curiously, it approached its task under section 58 FOIA thus: “The Tribunal does not take the IC’s decision again, rather its task is to consider the Decision Notice and to consider whether it can be impugned on legal grounds.”

Its decision turned largely on the usual features of a request for personal data: privacy implications, reasonable expectations and so on. The Tribunal’s decision does, however, contain a number of points of interest concerning the correct approach to section 40.

First, when judging whether, for section 40(5) purposes, confirmation or denial would breach any of the data protection principles, the appropriate reference point was disclosure to the public, not disclosure to the individual requester, given the overall wording of section 40 and the ‘motive blind’ approach to FOIA. The Upper Tribunal in All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner [2011] UKUT 153 (AAC) appeared to think otherwise, but its observation was obiter, and the Tribunal in the present case declined to follow it.

Secondly, it followed that for the purposes of condition 6(1) of Schedule 2 to the DPA (which refers to the “legitimate interests of the … third party or parties to whom the data are disclosed”), the appropriate reference point was again the public. Public rather than private interests are what count for condition 6(1) purposes.

Finally, the NCND provisions of section 40(5) do not appear in the list of absolute exemptions at section 2(3)(f) of FOIA. Does this mean the public interest test must be applied, even where – as the Tribunal had found – disclosure would breach the first data protection principle? The Tribunal agreed with the IC and the HPC that the answer is ‘no’. It followed Heath v IC (EA/2009/0020) in finding that the word ‘provision’ at section 2(1) FOIA is sufficiently ambiguous (as to whether it means a section of FOIA as a whole, or rather subsections) to admit of a purposive interpretation. In these circumstances, this allowed for data protection principles to be given primacy; no public interest question under section 2(2) of FOIA arose.

Robin Hopkins