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Timothy Pitt-Payne QC and Robin Hopkins spoke at the 11KBW Information law seminar; Data Protection for the 21st Century: The EU Reform Proposals on 21st February 2012. The papers from this seminar are now available to download – Robin Hopkins paper – click here ; Timothy Pitt-Payne QC paper click here

The question of whether and to what extent the personal data of public servants should be disclosed under FOIA is often a difficult one for public authorities to resolve. In the MPs’ expenses cases, the Commissioner and the Tribunal took a firm view that the legitimate interests of the public in accessing information relating to expenses outweighed any claims to privacy which the MPs might have. More recently, the Secretary of State has issued a code of recommended practice to local authorities inviting publication of salaries of senior officers (see further this earlier post on the code). But what level of data transparency is required if the personal data in question does not concern the expenditure of public monies but rather the way in which the private lives of public servants may intrude on their public duties? How does the s. 40 exemption play out in those circumstances? It was precisely these questions which the Tribunal was called upon to consider in the recent case of Greenwood & Bolton Metropolitan Borough Council v IC (EA/2011/0131).

In Greenwood, a request was made for disclosure of information revealing the declarations of interest which had been made by officials employed by Bolton MBC. The request was not limited either by reference to the nature of the interests in question or the seniority of the individual officers, although as it happened the relevant register of interests only recorded declarations from principal officers and above. The withheld information by its very nature comprised information about what individual officers got up to when they were not at work and, as such, was inherently private information. However, it was private information which plainly had a bearing on the discharge of the officers’ duties, hence its inclusion on the register of interests.

In a nuanced judgment, the Tribunal concluded that: the names, departments, sections and job titles of all officers who had made entries on the register should be disclosed and that, in addition, in relation to chief officers, information revealing other professional commitments (e.g. consultancies) should be disclosed but that the remainder of the information should be withheld. In reaching these conclusions, the Tribunal rejected arguments advanced by the Council that disclosure of any of the data would have a ‘chilling effect’ on the system of declarations. In its view, officers would still be inclined to make declarations, the disclosure notwithstanding, particularly because of the ‘auditor effect’, namely ‘disclosure would enable members of the public to scrutinize the information and challenge any inaccuracies or omissions’ which was ‘likely to add frankness in declaration’ (para. 30). However, it accepted that withholding the bulk of the requested information was justified. This was particularly in view of the facts that disclosure of some of the information would be likely to cause substantial distress and would be extremely intrusive into the lives of officers and, further, disclosure would interfere with the private lives of third parties involved in the interest in question (paras. 33-43). The decision effectively leaves the public in a situation where it knows that an officer has identified a potential conflict of interest but not why the conflict arose, unless that is the conflict relates specifically to the professional commitments of a chief officer.

It is a clear feature of access regime embodied in the EIR that the right of public access to environmental information does not apply to bodies to the extent that they are ‘acting in a … legislative capacity’ (r. 3(3)). This exclusion is permissible under both Article 2(2) of the Directive 2003/4/EC on Public Access to Environmental Information and Article 2(2) of the Aarhus Convention. The exclusion is no doubt derived from the constitutional principle that legislators are democratically elected and are directly accountable to the public (see further the Implementation Guide to the Aarhus Convention, p. 34). But what is the position if a legislative act does not in practice involve any kind of democratically driven legislative process? What if the legislation in question amounts to the mere rubber stamping of a decision by administrators? Will that act still fall within the scope of the exclusion, despite lacking any meaningful democratic credentials? Following a recent judgment of the CJEU, it would seem that the latter question must be answered in the negative. In Solvay & Ors v Région Wallone Case C-182/10 (judgment delivered on 16 February 2012), the Walloon Parliament had legislated to ratify the granting of certain planning consents in respect of a number of major developments. A question arose as to whether the Aarhus Convention applied to the ratifications. The CJEU were in no doubt that the legislation in question could not fall within the ambit of the exclusion provided for in Article 2(2) of the Convention. This was because that legislation ‘simply ratified’ a pre-existing administrative act. It was not derived from a substantive legislative process of the kind required by the Aarhus Convention (see paras. 29-43 of the judgment and note in particular in those paras. the consideration of Article 1(5) of Directive on the assessment of the effects of certain public and private projects on the environment, which provides for a specific right of access to information relevant to environmentally significant developments). It follows that administrative acts cannot be rendered immune from the full force of the environmental information access regime merely by being covered in a thin legislative veneer (see also the judgment in Boxus & Ors [2011] ECR 1-0000 where the Court reached a similar conclusion).

The judgment in Solvay is also interesting for what it says on the question of the effect of the Implementation Guide to the Aarhus Convention. In response to the question whether the Convention must be interpreted in accordance with the Guide, the Court concluded that the Guide, which was drawn up by international experts, was designed to be an ‘explanatory document’ which contained observations which were ‘capable of being taken into consideration if appropriate among other relevant material for the purpose of interpreting the Convention’ but which had ‘no binding force and do not have the normative effect of the provisions of the Aarhus Convention’ (para. 27).

Dalley v Information Commissioner, EA/2011/0180, FTT Decision on 15 February 2012, concerns EIR Regulation 12(5)(d), on breach of confidence, and a refusal by the Ombudsman of an information request.  The confidentiality was provided by Section 32(2) of the Local Government Act 1974 in relation to Ombudsman investigations and conducting them efficiently.  The question was whether the public interest in maintaining that confidentiality outweighed the public interest in awareness of investigations on environmental issues conducted by the Ombudsman.  The subject matter was drainage issues and the alleged failure of the Local Planning Authority to address them in a satisfactory manner.  The FTT concluded that the balance of public interest was against disclosure.  The FTT emphasized (para 11) that there is a public interest in enabling the Ombudsman to receive information in confidence, so as not to affect adversely his ability to investigate complaints and thus to maintain the accountability and transparency of local government.

Yesterday the High Court handed down a judgment which highlights the potentially nuanced approach which the courts will take when considering the privacy rights of minors. In Spelman v Express Newspapers [2012] EWHC 239, the Court was asked to consider the question whether an interim injunction should be granted to the seventeen year old son of Caroline Spelman, Secretary of State for DEFRA. The injunction was designed to restrain the publication of private and indeed sensitive information relating to the Spelmans’ son by Express Newspapers (“EN”). Having found that the son would have a reasonable expectation of privacy in respect of the information in question, Lindblom J went on to consider how the son’s privacy rights under Article 8 should be balanced against EN’s right to freedom of expression under Article 10. He concluded that the balance tipped in favour of protecting the son’s right to privacy. In reaching this conclusion Lindblom J took into account in particular: that the claimant was a minor who ‘faced considerable press scrutiny in a tabloid newspaper’ [para. 17]; that publication of the story by EN would ‘not of itself advance the public interest claimed for it to a material degree’, as that public interest would ‘be protected and advanced in any event’ [para. 24] and, further, that publication of this story was ‘likely to have a very significant harmful effect on the claimant’ [para. 25].

However, notably the claimant’s status as a minor was not sufficient to incline Lindblom J to allow his application for anonymity in respect of the order itself. He held that the fact that subject matter of the application and the precise nature of the relief granted would not enter the public domain was sufficient to protect the claimant’s interests and that the fundamental importance of the principle of open justice meant that the claimant should be identified as the person who sought injunctive relief against EN. Lindblom J went on to comment that this seemed ‘properly to reflect the course which the court ought now normally to take in situations such as these’ [para. 35]. See further the relevant jurisprudence referred to in the judgment including: Cream Holdings Ltd v Banerjee [2005] 1 AC 253 (Supreme Court judgment on the test to be applied under the Human Rights Act when seeking injunctive relief restraining freedom of expression), Murray v Express Newspapers plc [2009] Ch 481, (Court of Appeal judgment on the privacy rights of JK Rowling’s son) and DFT v TFD [2010] EWHC 2335 (hearings in private to prevent unlawful publication of private information).