The First-Tier Tribunal has today handed down two important decisions in appeals concerning requests for disclosure of information relating to the Government’s controversial policy to radically overhaul the NHS: Department of Health v IC & John Healey MP (EA/2011/0287) and Department of Health v IC & Cecil (EA/2011/0286). Healey concerned a request for disclosure of a ‘transition risk register’ (TRR), essentially a set of risk assessments relating to the transition from the NHS as it was in 2010 to the NHS as it is proposed it should be once the reforms set out in the July 2010 White Paper have been implemented. Cecil concerned a request for disclosure of the ‘strategic risk register’ (SRR). The SRR contains the risk assessments for the NHS as a whole on a strategic and ongoing basis. In both cases, the DOH refused disclosure on the ground that disclosure of the registers would have a ‘chilling effect’ on the development of government policy and, accordingly, were exempt from disclosure under s. 35(1)(a) FOI (a.k.a. ‘the safe space’ exemption). The IC found that, whilst s. 35(1)(a) was engaged in respect of the registers, the public interest balance tipped in favour of their disclosure. Interestingly, the Tribunal dismissed the DOH’s appeal in respect of the TPRR but allowed it in respect of the SRR. The written reasons, which have yet to be promulgated, are no doubt going to make for interesting reading; so watch this space.
REFUSING STUDENT VISAS DUE TO WMD CONCERNS: NEW NATIONAL SECURITY DECISION
Mahmud Quayum (on behalf of the Camden Community Law Centre) v IC and FCO (EA/2011/0167) is the second First-Tier Tribunal decision in recent weeks on section 24 of FOIA (national security). The other is Summers, on which see Anya’s post here. In both cases, the Tribunal has found the exemption to be engaged and the public interest to favour its maintenance.
Quayum concerned the Academic Technology Approval Scheme. The Scheme, introduced in November 2007, aims to prevent the spread of knowledge and skills useful in the proliferation of weapons of mass destruction. All students from outside the EEA and Switzerland who wish to embark on certain designated post-graduate courses must apply to the FCO’s Counter Proliferation Department for an ATAS certificate before they apply for a student visa. The requester expressed concern that, in some cases, the applicant’s nationality could count decisively against them in a manner that breached equalities legislation. He requested details of refused applications, broken down by applicants’ nationalities and proposed study subjects. He argued that unsuccessful applicants lacked adequate rights of appeal, that much information about the scheme (as well as about countries who were a particular concern from a WMD perspective) was already public, and that non-disclosure would foster “an atmosphere of secrecy over openness”. As usual with s. 24 cases, those arguments went both to the engagement of the exemption and to the public interest.
The Tribunal found those arguments insufficient in both respects. The Equality Act 2010 contains an exemption for national security matters (s. 192). While there was no formal right of appeal, unsuccessful applicants could seek a review of refusals; this dispelled concerns about a “surreptitious mechanism”. The information in the public domain was materially different to that which had been requested. The Tribunal recognised that disclosure would assist in the transparency of an arguably controversial Scheme, but found this to be outweighed by the risk of disclosure undermining the effective operation of an important national security measure, including by discouraging universities (who risked being identified from the disputed information) from co-operating with the Scheme.
Regarding the approach to s. 24, the following extracts from the decision are worth noting:
“… national security is predominantly the responsibility of the government and its various departments. The Second Respondent has contended, correctly in the Tribunal’s view, that the Tribunal must at least initially afford due weight to what is regarded as the considered view of such departments, even though the exemption entails an element of public interest and the balancing test. In particular, and again the Tribunal endorses this approach, particular weight should be afforded to the views of the government or its appropriate department with regard to its or their assessment of what is required to safeguard national security in any given case and the prejudice likely to result from disclosure” (paragraph 43), and
“.. the Tribunal is equally firmly of the view in accepting the contention advanced by the Second Respondent that the particular weight to be applied in favour of maintaining the exemption will be proportionate to the severity of the perceived threat. Thus, to take the point which is in issue here it can with some justification, in the Tribunal’s judgment, be argued that since the proliferation of WMD would constitute one of the severest threats to the security of the state, given its potential wide-ranging effect, so must the countervailing public interest in disclosure be a weighty one, such that disclosure becomes a viable option. The Tribunal stresses that nothing that has just been said in any way converts the present exemption into an absolute one” (paragraph 44).
Finally – as is often the case of late – the requester sought to rely on Article 10 ECHR. Interestingly, the Tribunal in this case observed that Article 10 would make no difference to the analysis, given the checks and balances built into the meaning of s. 24 and the public interest test.
11KBW Information Law Reports with JUSTIS, 2nd and 3rd edition updates
The second edition of the Information Law Reports is now available. Reported cases include: OFCOM v Information Commissioner, Department of Health v IC, University of Newcastle upon Tyne v Information Commissioner and BUAV.
The third edition of the Information Law Reports will be released in late March 2012. Reported cases include: Birkett v DEFRA, Colleen Smith v IC and Devon & Cornwall Constabulary, Voyias v IC and Camden, Keiller v IC and University of East Anglia.
The reports are edited by Timothy Pitt-Payne QC, Anya Proops, and Robin Hopkins, three of the leading practitioners in the field of information law and members of 11KBW’s Information Law Group.
For more information on the Information law reports and how you get your free trial click here
NEW NATIONAL SECURITY JUDGMENT – SUMMERS v IC & COMMISSIONER OF THE POLICE FOR THE METROPOLIS
In Summers, the First-Tier Tribunal has revisited the application of the national security exemption which was previously examined in the case of Kalman v IC (application of s. 24 to airport security arrangements – see my earlier post on the Kalman case). The principal issue in Summers was whether the IC had erred in concluding that information comprising the total amount spent by the Metropolitan Police’s Royal Protection Unit in a particular year was exempt from disclosure under s. 24 FOIA. In a robust judgment, the Tribunal held that the Commissioner had been right to conclude both that s. 24 was engaged in respect of the information and that the public interest balance weighed in favour of maintaining the exemption. Notably, the Tribunal rejected the Appellant’s case that the Royal Family was not integral to our domestic constitutional arrangements and, hence, could not give rise to national security considerations. In reaching this conclusion, the Tribunal adopted the broad approach to construing the concept of national security approved in Kalman. The Tribunal also found that, whilst taken in isolation the information may not be significant, when placed within a larger mosaic of information already available within the public domain, the information could be of use to terrorists and other criminals wishing to target members of the Royal Family (see further the discussion of the ‘mosaic effect’ at paras. 73 et seq). The Tribunal went on to conclude that, in all the circumstances, the public interest balance weighed firmly in favour of the s. 24 exemption being maintained. The Tribunal also considered the application of the exemptions provided for in ss. 31 (prevention of crime) and 38 (health and safety). It found that the information was also exempt under these sections.
Finally, the Tribunal was asked to consider whether the public interest considerations applicable to all three exemptions should be aggregated together, as per Ofcom v IC (Case C-71/10 (ECJ)). The Tribunal held that the issue was strictly academic as it had found that the information was exempt under each of the three individual exemptions in any event. However, it went on to comment obiter that, had aggregation been in issue, it would have ‘unhesitatingly’ held that the aggregated interests in maintaining the exemptions outweighed the public interests in disclosure (para. 96).
INFORMATION RELATING TO SECURITY BODIES
The Tribunal has considered the scope of the absolute exemption in section 23 FOIA, where information relates to one of a number of specified security bodies (Dowling v Information Commissioner and the Police Service for Northern Ireland, EA/2011/ 0118).
The requester, a journalist, asked the Police Service for Northern Ireland to provide him with a copy of a report known as Stevens III. The summary of this report by Mr John Stevens (as he then was) had been published in 2003 and recorded that he had found “collusion between the RUC and loyalist groups, whereby RUC agents were allowed to engage in terrorist attacks, indeed murder, evidence of such attacks was mishandled by investigators, important intelligence was suppressed and warnings of threatened attacks were provided to Catholic targets much less frequently than to Loyalist. Agents were allowed to operate beyond any control. Sir John concluded that his investigations had been subject to widespread obstruction both by RUC and army personnel, even involving arson. Lives, including the lives of Finucane and Lambert, could have been saved and serious crimes prosecuted to conviction but for such disgraceful misconduct” (judgment at [8]). The full report had not been published due to security concerns.
The Police Service for Northern Ireland refused the request, relying on a number of exemptions (including the absolute exemption in section 23). The issue for the Tribunal was the meaning of “relates to” in section 23. It found that the section 23 exemption “has nothing to do with any direct damage to national security (see s.24). It expressly protects any direct or indirect security source of requested information but goes much further” (judgment at [18]). “Information describing a [specified security body] or its activities is clearly covered but “relates to” plainly extends beyond that” (judgment at [19]). It concluded that “any significant connection between such a body and such information is caught” (judgment at [20]).
Interestingly, the Tribunal commented that “As the appellant observes in his grounds and as has been said in Parliament, it is difficult to conceive of more serious charges made against organs of the state than those contained in the published Stevens III” (judgment at [8]) … “Whilst the personality and motives of a requester under FOIA are immaterial, it is hard to imagine a subject in which the Irish public, hence Irish journalists, could have a greater legitimate interest than the full content of Stevens III, recording, as it does, the conduct of certain elements of the police and the security forces. That said, the public interest is not an issue here since the exemption under scrutiny is absolute” (judgment at [9]). Given these comments, it may be that this was a case where the Tribunal would have welcomed some discretion.
Rachel Kamm, 11KBW
IDENTITY OF DONOR TO THINKTANK NOT ACCESSIBLE UNDER FOIA OR EIR – MONTAGUE v INFORMATION COMMISSIONER
Thinktanks are now a well-entrenched feature of our political landscape. They potentially wield significant influence over policies and policy-makers. However, they are plainly not ‘public authorities’ for the purposes of the information access regime and, hence, are not susceptible to the application of FOIA or the EIR. That said, information relating to these organisations may in certain instances be held by public authorities which do fall within the purview of the access legislation. The question of whether that information is disclosable under FOIA or the EIR is one which was recently considered by the First-Tier Tribunal in Montague v IC (EA/2011/0177). In Montague, a request was made by a journalist for disclosure of the identity of an individual who had made a sizeable donation to Global Warming Policy Foundation (GWPF), a climate change sceptic thinktank chaired by Lord Lawson. The information in question was held by the Charity Commission (CC) as it had been provided to the CC by GWPF in the course of GWPF applying for charitable status. The requested information clearly amounted to the ‘personal data’ of the donor. The principal issue which arose in Montague was therefore whether the IC had correctly concluded that that data was exempt from disclosure under s. 40(2) FOIA. Mr Montague argued before the Tribunal that the IC had erred when he concluded that the information was exempt. This was not least because he had underestimated the GWPF’s influence over Government and policy-makers and, by extension, the public interest in accessing information which revealed who had funded GWPF.
The Tribunal rejected Mr Montague’s case. In a conclusion which will no doubt raise eyebrows in certain quarters, the Tribunal found that there was no evidence before it that GWPF exerted any actual influence over policy-makers. This was despite the fact that GWPF had itself claimed in its annual report that it exerted ‘significant influence’ over policy-makers. Importantly, the Tribunal also found that the donor in question was not an individual who had sought a career in the public eye. It went on to conclude that the charity was not ‘so influential as to make the disclosure of its financial affairs a matter of legitimate public interest outweighing the privacy rights of the data subject’ (para. 36). The Tribunal found that the result would have been the same had the EIR rather than FOIA been the applicable regime. However, it also commented obiter that the EIR did not apply to the information in any event as it did not amount to ‘environmental information’.