Article 10 and Access to Information (again…) – the view from the Grand Chamber

Posted on | by Joe Barrett

Loyal readers know that the past 18 months have seen a succession of cases address whether Article 10 of the ECHR (the right to freedom of expression) comprehends a right of access to information held by public bodies.

As previously blogged by Julian Milford, in Sugar v BBC the UK Supreme Court (per Lord Brown, in his own inimitable style…) gave the argument that Article 10 could confer a right of access to information exceedingly short shrift. The Court of Appeal in Kennedy v Charity Commission [2012] EWCA Civ 317 (blogged by Anya Proops) then handed down a judgment that, notwithstanding the CoA’s somewhat quixotic decision to grant permission to appeal, appeared to signal that in Sugar the Article 10 ‘access to information’ argument had been given its quietus.

However, the plot simply continues to thicken as the Grand Chamber of the ECtHR has just handed down a judgment – Gillberg v Sweden, Application no. 41723/06, 3 April 2012 – which (while far from a model of clarity) appears to endorse the proposition that Article 10 can (in certain circumstances, the scope of which are almost entirely unclear) confer a right of access documents held by public bodies. The crucial paragraph of the Grand Chamber’s judgment is at [93] where it is stated that:

“…In the Court’s view, finding that the applicant had such a right under Article 10 of the Convention would run counter to the property rights of the University of Gothenburg. It would also impinge on K’s and E’s rights under Article 10, as granted by the Administrative Court of Appeal, to receive information in the form of access to the public documents concerned, and on their rights under Article 6 to have the final judgments of the Administrative Court of Appeal implemented (see, mutatis mutandis, Loiseau v. France (dec.) no. 46809/99, ECHR 2003-XII, extracts; Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III; and Hornsby v. Greece, judgment of 19 March 1997, § 40, Reports 1997-II).”

It should be noted immediately that: (i) the issue as to whether Article 10 connotes a right of access to documents was very much peripheral to the case, and so the Grand Chamber’s observation is very much obiter dictum (or the Strasbourgian (sic) equivalent); (ii) the passage does not cite the recent Strasbourg case law said to support the proposition that Article 10 confers a right of access to information e.g. Tarsasag v Hungary etc; and (iii) the critical part of the passage appears premised on the assumption that the content of the ‘Article 10 right’ of access to documents is defined by Swedish domestic law (rather than enjoying an autonomous ambit as defined by the ECHR itself).

However, notwithstanding these important caveats, this does appear to be the first occasion on which the Grand Chamber has endorsed the proposition that Article 10 (at least in some circumstances) is capable of conferring a right of access to documents held by public bodies. Could this prompt the UK Supreme Court in Kennedy to reappraise the stance towards the ambit of Article 10 advocated by Lord Brown in Sugar ? Watch this space.

Joe Barrett

TRIBUNAL’S DECISION IN DEPARTMENT OF HEALTH RISK REGISTER CASE

Posted on | by Robin Hopkins

The First-Tier Tribunal’s decision in Department of Health v IC, John Healey MP and Nicholas Cecil (EA/2011/0286 & 287) played a central role in the highly-charged political debates about the Health and Social Care Act. The Tribunal dismissed the Department’s appeal in part, but was unable to give written reasons before the Act entered the statute books. The Tribunal’s written reasons have now been promulgated and are available here:

2012_04_05; DOH v IC Healey final decision

Panopticon analysis will follow, but we thought some of our readers would like a hot-off-the-press look at the decision in the interim.

Robin Hopkins

INTERNET SURVEILLANCE – A SNOOPER’S CHARTER?

Posted on | by Anya Proops KC

In 2004, the former Information Commissioner, Richard Thomas, commenting on the then Labour Government’s proposed ID card scheme, warned us to take care that we do not ‘sleepwalk into a surveillance society’. That warning appears to have particular resonance this week following announcements by the Coalition Government of plans to extend current surveillance legislation so as to allow for the instantaneous tracking of internet usage by individuals within the UK. The plans would reportedly allow GCHQ to access all internet traffic (including information about webmails, web-browsing, internet calls and social networking activities) in real-time and on demand. Whilst the detail of the plans remains decidedly obscure, some media reports suggest that they are directed not only at capturing new technological modes of communication but also at loosening current restrictions on accessing tracking information so that, for example, warrants would not have to be sought in individual cases. The Government, which appears to be facing a huge backlash over the proposals, has indicated that current laws need to be updated so as to capture modern modes of communication which are not (or not adequately) caught by the existing regime, e.g. Skype calls and Facebook messaging. It has also suggested that rights of access under the new legislation would be limited to tracking information (e.g. who sent an email to whom, when and from where) and would not embrace any automatic right of access to the substantive content of the communication. However, critics have been swift to point out the potential threat to civil liberties posed by the plans, not to mention the inevitable risk of function creep. They highlight the dangers of a system which potentially draws, not only criminals and those posing a danger to our society into the snooping net, but potentially all innocent law abiding citizens as well. In an effort to defuse the current controversy, the Deputy Prime Minister has now promised  that open Parliamentary hearings would be held to examine draft clauses of any new bill based on the plans. However, it remains to be seen how the Government will seek to reconcile any draft bill with both the restrictions on the processing of personal data embodied in the existing 1995 Data Protection Directive the right to privacy afforded under Article 8 ECHR. It is of course inevitable that, as technology advances, so too will State surveillance systems need to evolve. However, the critical question is whether those systems can effectively be crafted so as to ensure that the surveillance society is kept within proper bounds.

IPCC v IC: IMPORTANT NEW DECISION ON VEXATIOUS REQUESTS AND COST OF COMPLIANCE

Posted on | by Robin Hopkins

 

The First-Tier Tribunal’s recent decision in Independent Police Complaints Commission v IC (EA/2011/0222) is very interesting and important. It concerns sections 14 (vexatious requests) and 12 (cost of compliance) of FOIA. The Tribunal has confirmed in resounding terms that cost alone can justify a section 14 finding, that a requester’s improper motive is relevant for section 14 purposes, and that the principle of aggregation of costs across separate requests is to be interpreted widely. On all these points, this decision will be welcomed by public authorities responding to unduly burdensome FOI requests.

The case concerned a requester with a keen interest in the work of the IPCC. The Tribunal said that his pattern of requests “focussed on no particular topic but appeared to range widely, even indiscriminately, over the whole spectrum of complaints that the IPCC investigates”. In particular, this case was concerned with two requests. One asked for IPCC managed investigation reports over a 3-year period (covering some 438 cases), the other was a multi-part request about a specific case which had been the subject of an earlier request. The IPCC had clearly had enough. It applied section 14 in refusing both requests.

While the Commissioner sympathised with aspects of the IPCC’s position (cost burden in particular), his overall conclusion – based on his five guiding questions for section 14 cases – was that the requests were not vexatious.

At Tribunal level, the IPCC relied on both section 14 and section 12. The Tribunal found in its favour on both counts.

Section 14 (vexatious requests)

On vexatious requests, the decision is worth quoting in some detail. At paragraph 14, it – like a number of Tribunals in recent cases – disapproved of an overly rigid application of the Commissioner’s five questions:

“The Tribunal considers that these requests were plainly vexatious when considered in the context of earlier requests or indeed in isolation. The criteria proposed in the ICO`s guidance are very helpful as a reference point. However, an approach which tests the request by simply checking how many of the five “boxes” are “ticked” is not appropriate. It is necessary to look at all the surrounding facts and apply them to the question whether the request is vexatious, a term not defined in FOIA but familiar to lawyers.”

It also found that cost alone can suffice for a section 14 finding – see paragraph 15:

“A request may be so grossly oppressive in terms of the resources and time demanded by compliance as to be vexatious, regardless of the intentions or bona fides of the requester. If so, it is not prevented from being vexatious just because the authority could have relied instead on s.12”.

This will be welcomed by those who find themselves unable to rely on section 12 due to the restricted list of activities which can be taken into account for cost purposes.

While cost can suffice regardless of motive, the Tribunal was emphatic that motive is relevant for section 14 purposes. In trenchant terms, it urged responsible use of FOIA (see paragraph 19):

“Abuse of the right to information under s.1 of FOIA is the most dangerous enemy of the continuing exercise of that right for legitimate purposes. It damages FOIA and the vital rights that it enacted in the public perception. In our view, the ICO and the Tribunal should have no hesitation in upholding public authorities which invoke s.14(1) in answer to grossly excessive or ill – intentioned requests and should not feel bound to do so only where a sufficient number of tests on a checklist are satisfied.”

In the present case, the Tribunal was not convinced of the requester’s good faith, and it considered his requests to be “not just burdensome and harassing but furthermore wholly unreasonable and of very uncertain purpose and dubious value, given the undiscriminating nature of the first request”. It had no hesitation in finding that section 14 had been correctly applied to the first request.

Section 12 (cost of compliance)

This provision was relied upon by the IPCC for the first time before the Tribunal. Interestingly, the Tribunal interpreted the Court of Appeal’s judgment on the late reliance issue (under the EIRs) in Birkett as meaning that the IPCC could rely on section 12 of FOIA late as of right – despite the Upper Tribunal’s rather different approach in APPGER (which is not referred to in this decision).

It was agreed that the cost limit was reached for the first request. The issue was whether section 12 applied to the second request. This turned on whether the costs of complying with that request could be aggregated, ie taken together with those for the first. Aggregation is provided for under the Information and Data Protection (Appropriate Limits and Fees) Regulations 2004. By regulation 5(2)(a), costs can be aggregated for requests which “relate, to any extent, to the same or similar information”. The Tribunal agreed with the IPCC that the requests in this case came within that provision. It said as follows (paragraphs 25-26):

“The second request was for specific details of a report which was a subject of an earlier request than those with which this appeal is concerned. It was the same kind of report as the 438 reports requested in the first request. We agree with the IPCC that the wording of Regulation 5(2) (a), for good reason, requires only a very loose connection between the two sets of information, hence the insertion of “to any extent” and “similar”. The information covered by the second request was quite obviously very similar in character to that described in the first. They were simply different reports.”

From a public authority perspective, this broad approach will be a welcome departure from the more restrictive analysis in cases such as Benson.

For a different take on the IPCC case, see this post from the ever-incisive FOI Man.

Robin Hopkins

APPLICATION OF S. 40 TO PUBLIC SECTOR RECRUITMENT PROCESS – BOLTON V IC & EAST RIDING YORKSHIRE COUNCIL

Posted on | by Anya Proops KC

The First-Tier Tribunal has recently considered the application of the personal data exemption to a local authority recruitment process. In Bolton v IC & East Riding Yorkshire Council  (EA/2011/0216), the applicant requested disclosure of information concerning the appointment to the authority of a new CEO, Mr Pearson. The tribunal construed the request as amounting to a request for disclosure of information relating to the recruitment process as a whole, rather than a request merely for disclosure of information relating to Mr Pearson. On this wide construction, the information in issue included: the content of the confidential application forms submitted by all the candidates; a presentation prepared by Mr Pearson as part of the recruitment process and information contained in a number of other documents relating to the authority’s decision-making process. The central issue in the case was whether this information was exempt from disclosure under s. 40(2) read together with s. 40(3)(a)(i) FOIA (exemption for personal data where disclosure would breach the first data protection principle).

So far as the information in the application forms was concerned, the tribunal took the view that this had properly been withheld under s. 40. In reaching this conclusion, the tribunal took into account a number of factors including the following:

  • the applicants would not have expected the forms to be disclosed unless this was required as part of the recruitment process

 

  • the application forms contained information relating, not to the performance of the public role applied for, but rather to the candidate’s personal professional history (it was part of their ‘life story’ and was ‘deeply personal’)

 

  • disclosure would damage the career prospects of most of the individual applicants as it would result in their current employer knowing that they were looking for alternative employment (this point did not apply to Mr Pearson who was already employed by the authority at the time of the recruitment process)

 

  • the provision of biographical information by applicants in the context of recruitment into an official role could not be compared with the disclosure to the public of biographical information relating to candidates for election to political office

 

  • whilst the interests of data subject are not paramount where the data in question relates to their public lives, the application process leading to appointment did not bring into play the discharge of public functions by the individual applicants as compared with their conduct once appointed.

 

The tribunal refused to accept that there were specific factors applicable to Mr Pearson’s form rendering that form more susceptible to disclosure. In reaching this conclusion, the tribunal appears to have taken into account in particular that the recruitment process itself appeared to have been conducted in a proper open and transparent manner. The tribunal went on to conclude that Mr Pearson’s presentation was also exempt from disclosure.

However, the tribunal also went on to hold that other information falling within the scope of the request has been improperly withheld, particularly as that information did not in fact amount to personal data. In this respect, the tribunal criticised the authority for having been too broad brush in its assessment of whether the withheld information amounted to personal data: tge fact that certain documents contained some personal data was no justification for withholding the remaining information in the document; the authority ought to have dealt with such mixed information by redacting the personal data and disclosing the impersonal data. Thus, for example, it held that the authority should have disclosed a blank version of the application form so as to increase transparency around the application process. The tribunal also held that the authority ought to have disclosed the identity of those officers in senior roles who were involved in the recruitment process.

The fact that the tribunal found in Bolton that the substantive content of the application forms was lawfully withheld under s. 40 is likely to prove reassuring both for public authorities conducting recruitment exercises and for potential recruits. However, the decision should not be construed as implying that such information will always be treated as exempt under s. 40. It may well be that the tribunal would have reached a different conclusion had there been evidence of nepotism or discrimination tainting the recruitment process.

PROVING COMMERCIAL PREJUDICE – CRANFIELD UNIVERSITY v INFORMATION COMMISSIONER

Posted on | by Anya Proops KC

The notion that s. 43 can operate to prevent the disclosure of commercially sensitive pricing information is not a new one (see further e.g. Department of Health v IC (EA/2008/0018)). Of course, that does not mean that all pricing information will fall within the ambit of the s. 43 exemption. Certainly, where the information has effectively become historic at the time of the request, it may well be that any attempt to rely on s. 43 will be doomed to failure. However, just how far does a public authority need to go to prove to the tribunal that pricing information was current and commercially sensitive at the time of the request? This was one of the questions which arose in the recent case of Cranfield University v IC (EA/2011/0146). In Cranfield, a request was made to Cranfield University for disclosure of information, including certain pricing information, which was integral to a contract which the University had entered into with the MOD. The University presented detailed evidence to the tribunal to support its case that disclosure of the pricing information would prejudice its commercial interests, particularly by enabling competitors to steal a march in the context of any retendering exercise.

Far from demonstrating a deferential approach to the University’s evidence, the tribunal showed itself willing to interrogate all the assertions and assumptions made by the University during the course of its evidence. Not least, the tribunal accepted that the pricing information embodied commercial assumptions which had been made by the University but rejected the argument that this rendered the information particularly commercially unique or original (§26). It also relied on the fact that the MOD had previously expressed concerns about the pricing mechanism used by the University to challenge the University’s assumption that the mechanism would come into play in the context of any retendering exercise (§27). Perhaps most notably, the tribunal rejected the argument that the information would be of use to competitors on the basis that the University had itself represented to the MOD that it provided a high quality cost-effective service which could not be matched by other educational institutions (§§33-34). The latter conclusion will no doubt send shivers down the back of many public authorities which provide commercial services to third parties, particularly as it will presumably be a rare authority which will not want to proudly proclaim that the services which it offers are highly competitive and offer value for money. (Compare the Visser case, discussed in Robin’s post, where the tribunal found the authority’s evidence as to commercial prejudice to be rather more compelling). Note, the tribunal were rather more forgiving when it came to the University’s case that some of the information should be withheld on an application of the personal data exemption contained in s. 40.