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

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.