Right to withdraw children from sex education classes

Posted on | by Robin Hopkins

Under s. 405 of the Education Act 1996, any parent has the right to withdraw a child from sex education at a maintained school up to the age of 19, except to the extent that the subject is covered in a science lesson that forms part of the national curriculum. On 5 November 2009, the Labour government announced that a proposed new bill, the Children Schools and Families Bill would include a provision that would remove a parent’s right of withdrawal once a child had reached the age of 15 years. The next day, the Family Education Trust made a FOIA request for all correspondence, notes and reports on this issue. This was refused. The proposed legislative change was abandoned when the Coalition government came to power in May 2010. The requester made the same request again, seeking only information created prior to May 2010, i.e. under the last government. The Department for Education again refused, continuing to rely on s. 35(1)(a) of FOIA (formulation or development of government policy). The requester’s appeal to the Tribunal concerned the public interest balancing test only. The appeal in Family Education Trust v IC and Department for Education (EA/2011/0244) was dismissed.

Three points are of interest as regards the public interest in maintaining the exemption for the formulation and development of government policy.

First, the appellant argued that there had been a lack of transparency about this decision. The Tribunal thought this a valid type of argument in general: it could “envisage cases in which public dissatisfaction with the rigour or comprehensiveness of a public consultation may add weight to the public interest in having information disclosed”. This did not, however, have purchase on the facts of this case.

Secondly, what of the fact that the relevant provision had been abandoned during the “wash up” of outstanding legislative business immediately before the May 2010 election? The appellant said this meant no ‘safe space’ was then needed, as policy development on this issue was no longer live (this was raised as a public interest argument, but it seems to me it could equally well be an argument against the engagement of s. 35(1)(a) in the first place). Again, on the facts this point did not have force, as the issue remained live after the election. The Tribunal did, however, add this note of caution:

“It does not follow, from our conclusion on this aspect of the case, that the period during which the “safe space” must be protected will be without limit. Some elements of the public debate on sex and relationship education may be perennially controversial but, in the event of a further information request being made at any time in the future, it will be necessary for the Department to consider the state of policy development at that time.”

Thirdly, the Department also argued that there was a public interest in protecting from disclosure contributions made by those consulted on policy matters in this area. The Tribunal gave this factor less weight, “in that those submitting views with the intention of influencing policy decisions by government should in most cases accept that the consultation process will be conducted in public view. We nevertheless accept that a degree of protection may be required in the context of a particularly contentious issue, such as the right of withdrawal and that, had we been inclined to order to disclosure generally, it might have been appropriate to make special provision for some elements of the consultation process.”

Robin Hopkins

Wheat and chaff: advice to ministers on answering parliamentary questions

Posted on | by Robin Hopkins

Some years ago, the government commissioned the Tasker Report into the conduct of senior managers in the prison service, which had given rise to extensive and adverse publicity. A number of parliamentary questions were asked about the report. As is the usual practice, civil servants prepared advice for use by the prisons minister, Maria Eagle, in responding to those questions.  Kikugawa v IC and MOJ (EA/2011/0267) involved a request for copies of those advice notes. The MOJ refused to disclose them, relying on s. 36(2)(b) FOIA (prejudice to the free and frank provision of advice or exchange of views), the prerequisite for which is the issuing of a ‘reasonable opinion’ by the ‘qualified person’ (here, the minister) as to the likelihood of those prejudices.

The Tribunal found the exemption to be engaged. Points to note as regards the ‘reasonableness’ of the opinion this, which points towards a margin of discretion:

“The opinion must be her opinion so she cannot simply sign a submission without reading it, though nobody suggests that she did so. Deciding to approve a submission by flipping a coin (an example given by the ICO) does not fail the test because the opinion adopted is unreasonable but because the minister formed no opinion at all. The same principle would apply, though perhaps less vividly, where the minister received a submission advocating this opinion which offered no reason, however slight, to form it. Nobody can truly form an opinion where he or she is deprived of any shred of information on the issues involved. Provided the opinion is formed by the minister, however, it may be debatable how far the Tribunal is entitled to inquire into the mental processes adopted. A degree of caution may be appropriate when approaching the supposed requirement for a “reasonable opinion reasonably formed”.

The requester said the opinion had been biased. The Tribunal disagreed:

“The test is reasonableness, not the apparent objectivity of the QP. If the QP has formed an untenable opinion because of a conflict of interest, then the opinion does not satisfy s.36(2), not because it is the opinion of a biased QP but because it is unreasonable. In fact, the complaint that it is the minister concerned with the PQs whose opinion is sought is unrealistic since it is she who is by far the best placed to form a judgement on the matter. Equally, it is hard to see how officials who had no involvement whatever with the PQs or the background facts could provide an informed submission.”

The requester alleged that the submissions to the minister had been “bogus”, false or “deliberately misleading”. Although the Tribunal noted colourfully that “it is inevitable that, in the stream of advice and comment passed to ministers in the process of answering hundreds of PQs there will be chaff as well as wheat”, it did not find the requester’s allegations to be well founded.

Finally, this was one of those (increasingly rare, it seems) cases where the Tribunal saw force in the ‘chilling effect’ argument:

“The Tribunal is frequently pressed by government departments with claims as to the “chilling effect” on frank communication of disclosure of internal discussions and reports. The Tribunal is not always impressed by them. Here, though, we are dealing with a vital and sensitive interface between minister and civil servant. This is an area of government where the need for confidentiality is clear because the points that need to be made to a minister may be based on evidence of varying strength and may involve strong criticism of the questioner or another member or third party. The official offering advice may be understandably reluctant to make them public, whilst properly concerned that they should be before the minister. It is for the minister to decide what should be used, what rejected, what is too tenuous to be relied upon.”

For all these reasons, the Tribunal firmly rejected the appeal.

Robin Hopkins

“Yo, Blair!” Bush/Blair conversations and the Iraq war

Posted on | by Timothy Pitt-Payne KC

In Plowden and FCO v Information Commissioner EA/2011/0225 and 0228, the First-tier Tribunal considered a FOIA request for the record of a telephone conversation that took place on 12th March 2003 between President Bush and Mr. Blair.  The Tribunal largely upheld the ICO’s decision notice, and ordered that part of the record should be disclosed.

The significance is in the date, of course:  the conversation took place just 8 days before the start of the Iraq war.  The UK and US had been seeking a further UN Security Council resolution relating to Iraq.  On 10th March 2003, during a television interview, the French President Jacques Chirac commenced about the proposed resolution.  The requester, Mr. Plowden, wished to establish whether, during their telephone conversation on 12th March 2003, President Bush and Mr. Blair agreed to take the position that it was the French who had made it impossible to secure a second resolution.

Mr. Plowden’s request was prompted by evidence given by Mr. Straw (Foreign Secretary at the time of the Iraq war) to the Chilcot Enquiry.  As well as seeking the record of the Bush/Blair conversation, he sought other information about messages from France to the UK at the relevant time, and about a discussion between Mr. Blair and President Chirac. The FCO initially refused to disclose any of the information sought, but by the time of the Tribunal hearing the Bush/Blair conversation was the only item in dispute.

In relation to that conversation, the ICO’s decision notice distinguished between those parts of the record that contained or reflected information provided by President Bush (“the Bush information”) and those that did not (“the Blair information”); the ICO ordered disclosure of the relevant record, but with the Bush information redacted.  The FCO appealed, contending that the entire record was exempt under FOIA section 27 (prejudice to international relations) and section 35(1)(b) (Ministerial communications).  Mr. Plowden appealed against the decision to redact the Bush information.

So far as material, section 27(1) provides a qualified exemption for information the disclosure of which would or would be likely to prejudice relations between the UK and any State.  Section 27(2) provides a class-based exemption for confidential information obtained from another State (and section 27(3) further defines what is meant by confidential information in this context). Section 35(1)(b) provides a qualified exemption for Ministerial communications.

The Tribunal heard evidence from four witnesses, including Mr. Plowden and Ms Clare Short.  The latter was, of course, a member of the Cabinet in 2003: this appears to be the first occasion when a former Cabinet minister has given evidence in a FOIA case about matters that arose during their time in office.

The disputed information consisted of an internal note between the private secretaries to the Prime Minister and the Foreign Secretary, recording the main points discussed in the Bush/Blair conversation.  It was common ground between all parties that section 35(1)(b) and section 27(1) were engaged in relation to all of the disputed information.  It was also common ground that section 27(2) was engaged for the Bush information.

The Tribunal considered the extent of the information covered by the section 27(2).  In their view the ICO had taken too narrow a view of what constituted the “Bush information”.  Section 27(2) would cover three things:  what President Bush said; any record of whether Mr. Blair agreed; and any record of what President Bush and Mr. Blair discussed and agreed together, where the record did not disclose who originated the subject of discussion.  Section 27(2) applied, given the expectations of confidentiality in relation to discussions at this level, even though there was no formal confidentiality agreement.

The Tribunal also considered the public interest balance.  It regarded the public interest in disclosure as very weighty indeed.  It also considered that there were weighty factors in favour of maintaining the exemptions.  As far as section 27(2) was concerned, the likelihood of relations with the US being prejudiced by disclosure of confidential information provided by President Bush to Mr. Blair just before the Iraq war was very high indeed.  As to section 27(1)(a), any disclosure could lead to severe prejudice to the UK’s security and diplomatic interests.

The Tribunal reminded itself of the need to consider the actual content of the disputed information, and not just the category of information to which it belonged.  It was appropriate to consider the disputed information sentence-by-sentence.  The FCO’s approach was unsatisfactory, because it came perilously close to asserting that no information about communications with the US (at any rate at head of state level) should ever be released, and this would turn the qualified exemption under section 27 into a quasi-absolute exemption.  Points of this nature are often made in Tribunal discussions of qualified exemptions.

The Tribunal considered that the decision to go to war in Iraq was of exceptional gravity and controversy, and that information that could provide a better understanding of that decision was subject to an exceptionally strong public interest in disclosure.  The strength of that interest was somewhat lessened by the existence of the Chilcot Inquiry into the Iraq war; but it was also relevant that Chilcot would probably not be able to disclose the record of the relevant Bush/Blair conversation.

In relation to the Bush information (and on the Tribunal’s wider interpretation of what that information comprised), the public interest balance narrowly favoured maintaining the relevant exemptions; the fact that section 27(2) was engaged tipped the balance.  In respect of the Blair information, however, the balance narrowly favoured disclosure.

The case illustrates how, some 9 years on, the Iraq war continues to generate acute controversy in the FOIA context.  No doubt it is requests of this kind that prompted Mr. Blair’s notorious statement that he was a “nincompoop” to introduce FOIA.  But, as is reflected in the title of this post, political embarrassment cannot always be blamed on FOIA:  the well-known “Yo, Blair!” exchange, taking place at a G8 summit in July 2006, came into the public domain because the conversation was unexpectedly picked up by a microphone.

Legal professional privilege under the Environmental Information Regulations

Posted on | by Timothy Pitt-Payne KC

DCLG v Information Commissioner and WR [2012] UKUT 103 (AAC) is an important decision of the Upper Tribunal about the significance of legal professional privilege (LPP) under the Environmental Information Regulations 2004 (EIR). The decision is likely to mean that the approach taken to LPP under the EIR and under the Freedom of Information Act 2000 (FOIA) will in most cases be broadly similar, despite differences in drafting between the two provisions.

The three-member panel hearing the DCLG case was exceptionally strong. It included Lord Justice Carnwath (as he then was), sitting shortly before the end of his term of office as the Senior President of Tribunals; some three weeks after the decision was issued, he was sworn in as a Justice of the Supreme Court.

Under section 42 of FOIA, there is a specific qualified exemption for information in respect of which a claim for LPP could be maintained.  There is no equivalent express provision under the EIR.  However, regulation 12(5)(b) contains a qualified exception for information the disclosure of which would adversely affect the course of justice.  The appeal in DCLG raised two questions:  what was the significance of LPP in determining whether the exception in regulation 12(5)(b) was engaged; and what weight should be attached to LPP in carrying out the public interest balancing test.

The context was an unsuccessful application for planning permission for the erection of an anemometer mast (to measure wind speed and direction).  The applicant appealed against the local authority’s refusal, indicating that if the planning inspectorate (PINS) determined that the appeal should be decided on written representations without a hearing then permission would be sought for judicial review.  Nevertheless, PINS decided that the appeal should proceed on the basis of written representations.  The applicant tried to persuade PINS to reverse that decision. In their response, PINS referred to and relied upon the advice of an in-house legal adviser.

The applicant then sought disclosure of that legal advice, under the EIR; PINS refused to disclose it, relying on regulation 12(5)(b).  The Information Commissioner (ICO) upheld the refusal, but the First-tier Tribunal (FTT) allowed the applicant’s appeal.

The Upper Tribunal referred to the approach taken under FOIA section 42, as set out in DBERR v Information Commissioner and O’Brien [2009] EWHC 164 (QB).  The Upper Tribunal summarised that approach as follows:  in applying the public interest test, a heavy weight was to be given to the exemption, by reason of the risk that disclosure would weaken the confidence of public bodies and their advisers in the efficacy of LPP; that weight might vary from case to case, so that it would be reduced if the requested information was very old or related to matters that were no longer current; further, the factors in favour of maintaining the exemption would not be limited to these general considerations, and might also include the effect which disclosure would have in the individual case.

In discussing whether regulation 12(5)(b) was engaged, the Upper Tribunal stated that it was material to consider the general effect which disclosure of legal advice would have in weakening confidence in LPP, as well as the effect on the particular case in which disclosure was sought.  The exception would be engaged, only if an adverse effect on the administration of justice would be more probable than not.  The Upper Tribunal doubted whether the requirement for the course of justice to be adversely affected meant that the relevant advice must have been given in a litigious context, while stating that it did not need to decide the point.  Likewise, the Upper Tribunal did not need to decide whether the fact that information was protected by LPP would necessarily mean that regulation 12(5)(b) was engaged.

In relation to the public interest balance, the Upper Tribunal considered that the approach to be taken under regulation 12(5)(b) was broadly similar to that under FOIA section 42, subject to the fact that (by regulation 12(2)) the EIR is subject to a presumption in favour of disclosure.

In relation to the particular appeal, the Upper Tribunal considered that regulation 12(5)(b) was clearly engaged.  The advice was given at a time when judicial review had been threatened; disclosure would have had an adverse effect on the course of jusice, by weakening general confidence in LPP.  This was a strong factor in favour of maintaining the exemption.  A further factor was that it was unfair to require PINS to reveal its legal advice in circumstances where those seeking to overturn its decision would not have to do so.  The factors in favour of disclosure were relatively weak: the presumption in favour of disclosure was rebutted.

Is there now any scope for a difference of approach between FOIA section 42 and EIR regulation 12(5)(b)?

In any case where disclosure is sought under FOIA of material protected by LPP, FOIA section 42 will be engaged.  By contrast, it is still theoretically possible that disclosure could be sought under the EIR of material protected by LPP, without engaging regulation 12(5)(b)  The Upper Tribunal expressly refrained from finding that every LPP case would automatically engage regulation 12(5)(b); but they also doubted whether regulation 12(5)(b) could be confined to cases where there was a threat of litigation. My own view is that, in the light of the decision, arguments that regulation 12(5)(b) does not apply to the disclosure of LPP material will be difficult to maintain, and will succeed (if at all) only in rather unusual circumstances.

Where regulation 12(5)(b) is engaged, the approach to the public interest test will be broadly similar to that under section 42.  The only difference (and its practical significance is doubtful) is that under the EIR there is an express presumption in favour of disclosure.

FOUR NEW LOCAL AUTHORITY DECISIONS BY THE FIRST-TIER TRIBUNAL

Posted on | by Robin Hopkins

The bulk of the First-Tier Tribunal’s most recent decisions under both FOIA and the EIR have concerned local authorities. Adequate searches, deleted emails and hard drives and listed building consent feature prominently. Here are some notable points from four of the decisions.

Deleted email account: Tribunal finds against Council

Councillor Jeremy Clyne v IC and London Borough of Lambeth (EA/2011/0190) merits close attention from local authority information officers. Southern Rail carried out work at its Streatham cleaning depot without planning permission. The Council considered taking enforcement action, and instructed a consultancy to report on this option. The requester asked for all reports and communications about the consultant’s draft report. The Council provided some information, but the requester was dissatisfied. He maintained, as requesters often do, that it was ‘incredible’ that further information did not exist. The Council insisted that it had not deleted any relevant information. This was enough to satisfy the Commissioner – but not the Tribunal.

One issue went in the Council’s favour: the Tribunal agreed that information held by its external solicitors was not held on its behalf in the circumstances. Otherwise, the key issues went against the Council.

First, the Tribunal disapproved of the Council’s approach to the wide request for information:

“Lambeth argued that in light of the broad scope of the request it had been reasonable to limit its searches to the planning department which was most likely to hold information. The Tribunal disagrees.  It is not for the public authority unilaterally to redraw the ambit of the request; if the scope is too wide to enable a proper search to be carried out, efforts should be made to refine the request.”

The Council further argued that “the breadth of the request meant that it was too difficult to ensure that every loose end was tied up. They argued that Mr Clyne should resubmit targeted individual requests to follow up these loose ends”. Again, the Tribunal disagreed.

Secondly, as to the adequacy of search and whether, on the balance of probabilities further information was held, the Tribunal applied the established approach from Bromley v IC and Environment Agency (EA/2006/0072) [2011] 1 Info LR 1273. A number of further documents were discovered only after the Commissioner’s decision; the Council had used incorrect or inadequate search terms; important communications about the consultant’s report appear to have gone unanswered (which seemed unlikely) and there was no paper trail accounting for the substantial changes between the draft and final versions of the report. The Tribunal noted that:

“Such a fundamental change as happened between the October 2007 and February 2008 versions of the report in [the requester’s] experience could only happen upon instruction and

not spontaneously. Consequently there ought therefore to be a paper trail.  Planning and legal departments are in different buildings, therefore more likely to communicate by email rather than “pop their head around the corner”. The practice of the Council and their preferred method of communication is by email… The Tribunal has not received an explanation that satisfies it that no recorded information was generated, nor an adequate explanation as to why if generated it has not been retained.”

This led to the third important feature of the decision: following Keiller, the Tribunal ordered the Council to restore the email account of the planning officer who was the focus of the requested information (his account had been expunged some time after the complaint to the Commissioner), to search that account and then to provide the requested information or issue a refusal notice.

Deleted hard drive: Tribunal finds for Council

The requester in Gilbert v IC and Northumberland County Council (EA/2012/0274) was a public transport campaigner seeking records about the 681 bus service (and the Council’s alleged ‘decimation’ of bus services). The Council provided some information, and again the Commissioner was satisfied.

As with Clyne, there were some difficulties with the Council’s case before the Tribunal. The Appellant provided four items he possessed which fell within the scope of his request, including correspondence between the Council and his MP. He argued that: “the Council has withheld or destroyed correspondence which confirms the depth of opposition to its highly unpopular bus cuts.” Further, the Council’s former Head of Transport, to whom the MP had written, had left the Council in March 2011 and his hard drive was wiped on his departure (which was after the handling of the request). The Tribunal observed that:

“the Council’s systems for locating information appear not to have functioned well in this case, as illustrated by the initial failure to identify relevant correspondence with an MP. Wiping the hard disc of a departed senior member of staff, without first checking that it did not contain information which might not be available elsewhere is a practice which might merit review.”

However – again by application of Bromley – the Tribunal was satisfied that on balance the Council had done enough and that no further information was likely to be held. This was largely down to the quality of the searches carried out by the relevant officer in response to the request:

“He circulated a communication to all members of the integrated transport unit  ‘who are either known to be involved in the discussions relating to service 681 or may have been party to documents or other forms of relevant evidence during this period’.  Further he made a search of the Council’s CRM using a range of search terms relating to the bus, the

operator and the route.”

In the Tribunal’s view, that was an adequate search, and the appeal was dismissed.

Statutory nuisance and listed buildings are not ‘private’ interests

In Kuschnir v IC and Shropshire Council (EA/2011/0273), the requester’s (listed) property suffered from damp attributable to a problem at the (listed) bicycle shop next door, Hawk Cycles. The Council deemed this a statutory nuisance and ordered Hawk Cycles to undertake remedial works. Hawk Cycles provided the Council was a schedule of works. The requester sought a copy of that schedule. His request was refused, based on regulation 12(5)(f) EIR (adverse effect on the interests of the person providing the information).

The Tribunal found that the exception was not engaged. It did find there to be sufficient adverse interest to engage the exception, although it saw “no evidence that the disclosure of the information would have made litigation against Hawk Cycles more likely, and if any claim was started by Mr Kuschnir, it is abundantly clear that he would have been entitled to disclosure of the information in the context of the litigation.  In our view the potential litigation context therefore adds little to the debate.”

Another requirement for the engagement of regulation 12(5)(f) is, however, that the provider of the information “was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority”. This was the stumbling block for the Council: the Tribunal construed section 80(1) of the Environmental Protection Act 1990 – which empowers councils to take “such other steps as may be necessary” for requiring the abatement of a statutory nuisance – as meaning that the Council could have compelled Hawk Cycles to provide it with the schedule of remedial works.

The Tribunal went on to find that even if the exception was engaged, the Commissioner and the Council had got the public interest balance wrong. The public interest in disclosure was not great, but the Commissioner had been wrong to find it to be of a private nature. This was in part because the case involved statutory nuisance. The Tribunal added that “it is also relevant we think that Mr Kuschnir’s property was a listed building and one that the Council itself features on guided walks of Shrewsbury.”

The Commissioner had also wrongly characterised the public interest in maintaining the exception. It could not be said that disclosure would undermine the voluntary provision of information to the Council in circumstances Hawk Cycles “where were clearly under threat of an abatement notice requiring them to execute works to prevent a recurrence of the nuisance if they did not co-operate with the Council”.

The requester was therefore entitled to a copy of the schedule.

PDF sufficient

The requester in Forster v IC and Westminster City Council (EA/2011/0235) wanted to park his motorbike in Westminster. He asked for “a list of motorcycle parking bays (the addresses where they are located) so that I can plan trips into town.” The Council refused the request, relying on section 21 FOIA (information accessible by other means). It provided a link to the website which contained about 100 pages of images of a list – in a pdf file – of the names of all the streets in the City of Westminster on which motorcycle bays are located. The requester complained that the information was not “accessible” because it did not allow him to search, re-order or edit the data in the list for his own purposes without having to type the data into another file. He argued that the Commissioner has confused accessibility to a document which contains information, with accessibility to the information contained in a document. The Tribunal found, however, that those arguments were premised on the assumption that the Council held the list in the form that he wanted – but it did not; it had outsourced its IT, and the pdf was all it held. It could therefore rely on section 21.

Robin Hopkins

MINISTERIAL VETO STRIKES AGAIN – MINISTER’S STATEMENT PUBLISHED

Posted on | by Anya Proops KC

On Tuesday, I blogged about the decision of the Secretary of State for Health to veto the order requiring disclosure of the transition risk register in the NHS risk registers case. Today the Secretary of State published his statement as to the reasons for the imposition of the veto. You can read the statement here: https://www.dh.gov.uk/health/2012/05/statement-transition-register/. The statement is notable not least because it suggests that, in the Government’s view, there is a very strong public interest in avoiding the disclosure of risk registers, which are used as a tool across government, particularly where the advice they contain ‘is required at highly sensitive times on highly sensitive issues’. The statement also reveals that, so far as the Government is concerned, despite being concerned with policy implementation rather than policy development, transition risk registers may yet retain a high degree of sensitivity, particularly where they are being used against a backdrop of shifting policy priorities. Finally, it is worth noting that one of the factors which apparently influenced the decision to issue the veto is the fact that the publication of the transition risk register would have acted as ‘a serious distraction from progressing the [NHS reform] proposals’. This is something which is likely to be leapt on by opponents to the reform proposals, many of whom take the view that the Government is deliberately seeking to avoid disclosure of the registers because it is concerned that they will reveal fundamental flaws in the proposals.