KENNEDY IN THE COURT OF APPEAL – THE WRITTEN JUDGMENT

Posted on | by Anya Proops KC

The question whether the right to receive information under Article 10 ECHR affords members of the public a specific right of access to information held by public authorities is an important one for information law practitioners. This is a question which was explored in some detail by the Supreme Court in the case of Sugar v BBC. In Sugar, Lord Brown, who gave the principal judgment on the Article 10 issue, concluded that, the fact that: ‘every public authority has in one sense “the sensorial power of an information monopoly” in respect of its own documents’ does not mean that the Article 10 right to receive information was interfered with whenever a public authority refused access to information, particularly where the authority was acting consistently with domestic legislation governing access to information (§94). Thus, the fact that the BBC was not obliged under FOIA to disclose to Mr Sugar a particular report on its coverage of Middle Eastern affairs did not amount to an interference with Mr Sugar’s Article 10 rights (see further Julian Milford’s detailed post on the Sugar judgment).

The conclusions reached in Sugar have very recently been considered by the Court of Appeal in Kennedy v Charity Commission [2012] EWCA Civ 317 (see Robin Hopkins’ earlier post on the convoluted history of the Kennedy litigation). In Kennedy, a request had been made to the Charity Commission for disclosure of information relating to a charity set up by George Galloway. The Charity Commission refused to disclose the information on the ground that it was exempt under s. 32(2) FOIA (information held for the purposes of an inquiry). The effect of s. 32(2), when read together with ss. 62 and 63 FOIA, is that any information which is exempt under s. 32(2) remains exempt for 30 years. As the Court of Appeal observed, this ‘30 year rule’ applies irrespective of the content of the information, the harmlessness of the disclosure, the public interest in disclosure and the willingness of those who deployed the information in the course of the inquiry for it to be disclosed (§7). Mr Kennedy, a journalist, argued that this result unlawfully interfered with his right to receive information under Article 10. He went on to argue that the provisions of FOIA should be read down so as to enable the s. 32 exemption to be disapplied once the relevant inquiry has concluded. The tribunal (which decided Mr Kennedy’s appeal on the Article 10 issue before the Supreme Court’s judgment in Sugar was handed down) accepted Mr Kennedy’s argument. The Court of Appeal concluded that it was bound by the judgment in Sugar and, hence, Mr Kennedy’s case failed.

The Court of Appeal analysed the Sugar judgment in this way: 

  • Only three members of the Supreme Court panel addressed the Article 10 issue: Lord Brown; Lord Mance and Lord Wilson. Lord Brown gave the principal judgment.

 

  • Having analysed the relevant Strasbourg jurisprudence, Lord Brown concluded that the Article 10 right to receive information did not embrace a general right to access information held by the State. He went on to comment that, even had Article 10 embraced such a general right, there would have been no unlawful interference with that right on the facts of the Sugar case. This was because it was open to the State to legislate for a blanket exclusion for information held for the purposes of journalism, as was the case under FOIA. Lord Mance agreed with Lord Brown (§§42-45).

 

  • Lord Wilson may have analysed the issues under Article 10 somewhat differently. However, as he made clear in his judgment, he agreed with the essence of Lord Brown’s judgment (§46 & 50).

 

  • Their Lordships’ analysis of the Article 10 issue did not amount to obiter commentary. Instead, it formed part of the ratio of the judgment in Sugar (§§48-52).

 

  • The judgment in Sugar was determinative of the Kennedy appeal. This was notwithstanding that Kennedy was factually distinguishable from Sugar, particularly as Mr Kennedy was a journalist and Mr Sugar was not. Lord Brown had specifically considered whether it would have made any difference to the application of Article 10 if Mr Sugar had been a journalist or some other variety of ‘social watchdog’. He concluded that it would have made no difference (see §§53-55).

 

  • Even if Lord Brown’s judgment did not amount to the ratio of Sugar, the Court of Appeal would still have followed that judgment on the basis that it was a ‘very recent authoritative pronouncement by the Supreme Court’ (§59). 

Thus, Sugar was fatal to Mr Kennedy’s appeal before the Court of Appeal. However, importantly, the Court of Appeal gave Mr Kennedy permission to appeal to the Supreme Court. In granting permission, the Court of Appeal took into account that Mr Kennedy’s case was factually distinguishable from Mr Sugar’s case, particularly because Mr Kennedy was a journalist, whereas Mr Sugar was not, and also, in contrast with the BBC, the Charity Commission was not itself discharging journalistic functions. In taking these factually distinguishing features into account, the Court of Appeal appears to have been of the view that the Article 10 question may call for a different answer to the one arrived at in Sugar where the applicant is himself a journalist and the applicant’s request for disclosure does not bring into play the public authority’s own right to freedom of expression under Article 10. The Court also alluded to the seemingly draconian effects of the 30 year rule, as applied under s. 32(2) (see §62). For further analysis of the arguments in play in the Kennedy litigation, see Tim Pitt-Payne QC’s discussion of the Article 10 arguments in his paper which is posted here.

BREEZE v INFORMATION COMMISSIONER – INVESTIGATIONS

Posted on | by Rachel Kamm

The FTT has considered the public interests relating to the section 30 FOIA exemption, where  information was held for the purposes of investigation, in Breeze v IC and the Chief Constable of Norfolk Constabulary and the Crown Prosecution Service EA/2011/0057.

Mr Breeze  requested  ‘A copy of the 400 page case report or similar document compiled by Norfolk police for submission to the CPS as part of Operation Meridian’ from the Chief Constable of Norfolk Constabulary. The background to his request was that in about September 2007 his brother, Mr. Andrew Breeze (“AB”), had been charged jointly with a fellow director, Dominic Wilson (“DW”), with conspiring to defraud the National Health Service of about £2,000,000 by dishonestly claiming very substantial fees for extra care for patients at the private psychiatric hospital, Cawston Park in Norfolk which they owned and ran. The case had been referred to the police by NHS Counter Fraud Service, a department within the NHS. They had been tried in 2009. Several weeks into their trial at Norwich Crown Court the judge directed verdicts of not guilty following acknowledgement by the prosecution that the jury could not properly be invited to convict either of them on the evidence adduced. The judge emphasised that both left the court “with their heads held high”. It was subsequently accepted by the CPS that the case should not have come to court.  HM Solicitor General made a statement to the House of Commons acknowledging this, apologising to both defendants and repeating the judge`s exoneration. T he Chief Constable of Norfolk Constabulary launched an investigation under the auspices of the Independent Police Complaints Commission (“the IPCC”) into the conduct of the police investigation (“Operation Meridian”). Mr Breeze complained to the CPS which established its own inquiry as to what had gone wrong after the matter had been referred for a decision as to prosecution.

The Information Commissioner decided that section 30(1)(a)FOIA was engaged (as information that had been held at any time for the purposes of any investigation which the public authority has a duty to conduct with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it). He found that the public interest in maintaining the exemption prevailed. In the circumstances, the Commissioner did not go on to consider whether section 40 FOIA was also engaged. Mr Breeze appealed against the Commissioner’s decision.

The FTT commented that the consequences for the defendants were disastrous financially and, for a considerable time, in terms of reputation. The wasted financial cost to the exchequer was considerable. There is plainly a substantial public interest in righting such wrongs, if or in so far as that can be achieved and discovering why such a costly mistake occurred. On the other hand, there are substantial public interests involved in the protection of confidential information generated by a criminal investigation and of the identity of witnesses, potential witnesses and, very obviously, patients receiving treatment in any kind of hospital. The ICO had considered the public interest issues raised in relation to the performance of the Norfolk Constabulary in Operation Meridian i.e. the public interest in protecting the flow of future information to the police by shielding witnesses and potential witnesses from public identification and preserving, where possible, the confidentiality of police inquiries. However, the IPCC had subsequently been involved and therefore the FTT joined the CPS as a party, so that it could also consider the public interest in knowing the role of the CPS in the investigation and the evidential basis on which the CPS took the decision to charge, given the failure of the prosecution before the intended close of its case.  The FTT “invited the CPS to consider waiving privilege as to the content of counsel`s advice as to charging and later as to the sufficiency of the evidence. The CPS courteously declined to waive, as it was fully entitled to do. We draw no adverse conclusions from a perfectly legitimate decision“.

The FTT considered the rationale for section 30 and found that it was for (a) the protection of witnesses and informers to ensure that people are not deterred from making statements or reports by the fear that they may be publicised, (b) the maintenance of the independence of the judicial and prosecution processes  (c) the preservation of the criminal court as the sole forum for determining guilt and (d) the importance of ensuring that the police and CPS communicate frankly and fearlessly, free of any concern that every recommendation or reservation will be routinely exposed to public scrutiny, if the prosecution fails. The protection from prolonged exposure to publicity of witnesses and those who made statements but were not required as witnesses was a further factor in this case, though its importance varied from one witness to another. The FTT concluded that the Solicitor General`s statement in Parliament said all that could reasonably be said about the shortcomings of the CPS performance and therefore to a very substantial degree the information which might be provided by disclosure of the Case Summary was already in the public domain, in a more readily accessible form. The FTT therefore upheld the Commissioner’s decision that the balance of the public interest was in favour of maintaining the exemption in section 30(1).

Rachel Kamm, 11KBW

COMPLAINT AGAINST SENIOR COUNCIL OFFICER: TRIBUNAL OVERTURNS VEXATIOUS REQUEST FINDING

Posted on | by Robin Hopkins

In many cases concerning s. 14(1) of FOIA – vexatious requests – a relevant factor is that the requester has complained about the conduct of an employee, but that complaint has not been upheld. Ensuing requests are often considered by some to be harassing and obsessive. The Tribunal has recently overturned a decision notice in which the Commissioner had agreed with the local authority on those points.

Conway v IC (EA/2011/0224) concerned a requester who had been in communication with the Council for some years, in the course of which he had raised concerns that the role of “Senior Responsible Officer” and the “Section 151 Officer” were held by the same individual, which, in his view, represented a conflict of interests. His complaint to the Chartered Institute of Public Finance & Accountancy was not upheld. He had sight of the redacted version of its investigation report. He then contacted the Council with a number of detailed questions about its input into the Institute’s investigation.

The Council refused the request, relying on s. 14(1). The Commissioner agreed. The Tribunal did not.

The Tribunal found that “harassing” should be given its ordinary meaning, that is, to disturb persistently, bother continually, pester or persecute. In this case, the Council officer concerned was very senior; the subject matter concerned a high profile project that involved many millions of pounds of public money over 10 years. This had attracted a high degree of public interest in the press and on the internet. The Tribunal found that, in such circumstances, the public is likely to raise questions, and “such questions may be numerous and may on occasion be repeated”. It was not satisfied that a “harassing effect” had been demonstrated. The present case was, in the Tribunal’s view, entirely unlike the leading s. 14 case of Rigby v IC and Blackpool NHS Trust [2011] I Info LR 643.

The Council had also argued that the requester’s complaint giving rise to the Institute’s investigation constituted harassment of the senior Council officer. The Tribunal disagreed: it found “no evidence of a personal attack or comments of a provocative nature made by the Appellant against the named council employee”.

The Tribunal also disagreed that the request was obsessive: the request was concise and precise, and arose out of the Institute’s report which had recently been received – in those circumstances, the Tribunal could not see any relevant context or history which would demonstrate obsessiveness.

The Tribunal also observed that “whether the request creates a “strain on resources”, that is not relevant to the question of whether it is vexatious. If the Council wished to argue that they ought not to be required to comply with the request on this basis, then it ought to have relied on section 12 FOIA. It did not do so.”

The Council was ordered to deal with the

Robin Hopkins

LOCAL AUTHORITY’S LEISURE CENTRE BUSINESS PLAN: RELIANCE ON S. 43 FOIA UPHELD

Posted on | by Robin Hopkins

Local authorities are frequently asked to disclose information about their business arrangements with private sector partners: contracts, tender documents, business plans, financial models and the like. In Visser v IC and LB Southwark (EA/2011/0188), the appellant had requested the most recent business plan approved by the Council for Fusion Ltd, a leisure centre management company with whom the Council had contracted. The Council’s reliance upon s. 43 of FOIA – commercial interests – had been upheld by the Tribunal. While the case turned on the clarity and persuasiveness of the evidence of commercial harm, a few general observations are worthy of note.

The first concerns the way the Council had approached its disclosure decision. The Council had discussed the matter with Fusion, and the parties had disagreed on whether disclosure was appropriate. The Council had concluded that, since public money was being expended, the amount that the Council was paying Fusion ought to be in the public domain and open to scrutiny to ensure that public money was being used effectively. This was duly disclosed. However, the Council accepted Fusion’s argument that disclosing the profit and loss schedule would be damaging. It considered that the profit and loss account demonstrated Fusion’s approach and methodology to determine income and managing risks including its ratios and allowances for all expenditure items including staff costs, overhead, surplus and contingency.

The passage of time is often a pivotal factor in commercial sensitivity cases. By the time of the request in this case, the disputed information was two years old. Having considered the evidence, however:

“The Tribunal was satisfied that there was a continuity of approach to [Fusion’s] budgeting and business processes by Fusion which would be revealed by the disclosure of the 2007/8 business plan. This knowledge would be of value to Fusion’s competitors in future tendering processes relating to similar facilities and services. It therefore concluded that the age of the information was largely irrelevant, the commercial sensitivity of this specific information did not diminish over time and so the information remained commercially sensitive.”

The Tribunal also had this to say on the importance of preserving fair competition:

“The tribunal was satisfied that the Commissioner was right to emphasise the importance of the functioning of a fair market in this case. The evidence before the tribunal was that the provision of management services for leisure facilities owned by public authorities is a competitive market with a significant number of strong players within it. If the commercial secrets of one of the players in the market were revealed then its competitive position would be eroded and the whole market would be less competitive with the result that the public benefit of having an efficient competitive market would be to some extent eroded.”

Lastly, it agreed that there was a significant public interest in maintaining commercial confidences, as identified in Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council and others [2010] EWCA Civ 1214, [2011] BLGR 95 CA.

Robin Hopkins