SUGAR v BBC: THE FINAL ROUND

Posted on | by Julian Milford

16 February 2012 by Julian Milford

The Supreme Court has given judgment yesterday (15 February 2012) in Sugar v BBC [2012] UKSC4. The Supreme Court’s judgment in Sugar represents the last stage in a 7-year battle waged by Mr Sugar (and, following his death, the representative of his estate) to compel the BBC to disclose the “Balen report” under FOIA. This was an internal report from 2004 about the quality and impartiality of the BBC’s coverage of Middle Eastern affairs, which dealt among other matters with complaints that the BBC was biased against Israel. Mr Sugar was a well-known solicitor and supporter of the State of Israel, who considered that the BBC’s coverage of the conflict between Israel and Palestine was seriously biased.

FOIA applies to the BBC only in respect of information “held for purposes other than those of journalism, art or literature”: see Part VI of Schedule 1 FOIA. On the assumed premise that the Balen report was held by the BBC partly for the purposes of journalism, and partly for purposes other than those of journalism, the question for the Supreme Court was whether information held by the BBC with a dual purpose was within the scope of the Act.

Answering that question required the Court not only to analyse the wording and purpose of the Act, but also to reason whether Mr Sugar’s rights under Article 10 ECHR required any different outcome. Lord Brown’s reasoning in particular is of general importance as regards the right of access to information under Article 10, and not relevant simply to the narrow question of statutory interpretation in Sugar.

The statutory interpretation point: information held for dual purposes

Parsing the phrase “information held for purposes other than those of journalism” allowed for a number of possible approaches. Approach (1) would be that only information held exclusively for journalistic purposes would be outside FOIA. Approach (2) would be that information held predominantly, but not exclusively, for journalistic purposes would also be outside FOIA (i.e. a “dominant purpose” test). Approach (3) would be that only information held exclusively for non-journalistic purposes would be within FOIA. So if information was held for purposes that included journalism (even as a subsidiary purpose), this would bring the BBC outside FOIA. Mr Sugar argued for approach (1). The BBC argued for approach (3), with approach (2) as a fall-back.

The SCJs held (Lord Wilson dissenting) that approach (3) was correct. That was above all because the intention behind the exclusion was to protect the freedom of public service broadcasters to gather, edit and publish news without the inhibition of disclosure obligations. Per Lord Walker (representing the views of the majority), Parliament decided that the BBC’s right to freedom of expression warranted a more general and unqualified protection for information held for journalistic purposes, than was available under the exemptions in Part II of FOIA. That purpose would be frustrated if the coexistence of non-journalistic purposes resulted in the loss of immunity. So if any part of the BBC’s purpose in holding material was its broadcasting output, it would not be disclosable.

Article 10 ECHR

The SCJs all broadly agreed that an analysis of Mr Sugar’s possible rights under Article 10 ECHR did not carry his case any further. Of particular interest, however, are the conclusions of Lord Brown (giving the only detailed reasoning on the point) on why that was so.

Mr Sugar asserted that the ECtHR had moved towards a general recognition of a right of access to information under Article 10 in three recent cases (Matky v Czech Republic, Tarsasag v Hungary, Kenedi v Hungary). Failing to disclose the report to him interfered with that right: and such interference was not necessary or proportionate.

Lord Brown did not attempt to define exactly what right of access Matky, Tarsasag and Kenedi laid down. However, his starting point was to note the well-established line of Strasbourg jurisprudence, encapsulated in the unanimous Grand Chamber decision in  Roche v UK (2005) 42 EHRR 599, in which the ECtHR has found that Article 10 does not impose on States any positive obligations to disseminate information of their own motion. Lord Brown pointed out that Tarsasag was a decision of the Second Section of the ECtHR; that it relied for its assertion that the ECtHR had moved towards a broader interpretation of the notion of freedom to receive information on Matky alone; and that Matky was a case in which the complainant sought information under a general right to information under the Czech legal system, and in which the ECtHR held that any interference with his rights flowing from the refusal to disclose information was justified. Matky, said Lord Brown, was an “unpromising foundation on which to build any significant departure from what may be called the Roche approach…”

Whatever the significance of the Tarsasag line of authority, Lord Brown was certain that it did not establish any interference with the freedom to receive information under Article 10(1), where a public authority, acting consistently with domestic legislation governing the nature and extent of obligations to disclose information, refused access to documents. In any event, said Lord Brown, it was open to a State to legislate a blanket exclusion for disclosure of information held for the purposes of journalism. Such an exclusion would be proportionate; so that even if there were any interference with Article 10(1), it was justified under Article 10(2).

Plainly, Lord Brown’s reasoning on the scope of Article 10(1) is highly significant for the relevance of Article 10 to disclosure of information covered by FOIA exemptions generally, as well as to the more narrow issue of the BBC’s FOIA obligations. It remains to be seen how that reasoning plays out.

Finally, in this context, I note a number of forthcoming cases in which related issues concerning the applicability of Article 10 in the FOIA context will be considered. Those are Evans v 7 Government Departments and IC (EA/2010/0014) (judgment of UT awaited – involving Jonathan Swift QC, Tim Pitt-Payne QC and Julian Milford of 11KBW); Kirkhope v IC and National Archives (EA/2011/0185) (part-heard in the FTT – involving Jonathan Swift QC, Amy Rogers, Robin Hopkins and Joe Barrett of 11KBW); Kennedy v Charity Commission (due to be heard in the Court of Appeal on 21/22 February 2012 – involving Karen Steyn, Ben Hooper and Rachel Kamm of 11KBW); APPGER v ICO and FCO (due to be heard in the FTT on 27/28 February 2012, involving Karen Steyn, Joanne Clement and Robin Hopkins of 11KBW); R(Guardian News) v City of Westminster Magistrates Court (heard in the Court of Appeal on 7 February 2012 – judgment reserved).


HAZARDOUS ACTIVITIES

Posted on | by James Goudie KC

On 14 February 2012 the European Court of Human Rights gave Judgment in the case of Hardy and Maile v United Kingdom, Application No 31965/07, in which the Applicants alleged that the UK had failed in its duties under ECHR Arts 2 and 8 regarding the regulation of hazardous activities and the dissemination of relevant information.  The Application concerned the construction and operation of two Liquefied Natural Gas terminals on sites at Milford Haven Harbour.  The relevant domestic provisions with respect to dissemination of information were Regulations 5 and 12 of the Environmental Information Regulations 2004 (the EIR).  The complaint was about an alleged lack of information disclosed regarding the risks associated with these terminals.

The Court, at para 245, reiterated that in cases concerning hazardous activities, the importance of public access to the conclusions of studies undertaken to identify and evaluate risks and to essential information enabling members of the public to assess the danger to which they are exposed is beyond question.  The Court further, at para 246, reiterated that respect, under ECHR Art 8, for private and family life, requires that where a Government engages in hazardous activities which might have hidden adverse consequences on the health of those involved in such activities, and where no considerations of national security arise, “an effective and accessible procedure must be established which enables such persons to seek all relevant and appropriate information”.

The Court, at para 248, noted that the provisions of the EIR (and of FoIA) establish an extensive regime to promote and facilitate public access to environmental information; that the definition of “environmental information” is “relatively wide” and can include information relating to public safety; that in the event that information requested is not provided by the relevant authority, a challenge to the Information Commissioner is possible, followed by an appeal to the Information Rights Tribunal, the Upper Tribunal and the Court of Appeal.  Indeed the Applicants had availed themselves of the opportunities afforded by this legislation, and obtained a favourable decision from the Information Commissioner ordering the release of two reports requested by them.  The complaint was that these reports were heavily redacted.

The Court concluded as follows:-

“249.     The Court reiterates the importance of informing the public of the conclusions of studies undertaken and to other essential information to identify and evaluate risks. As the Information Commissioner explained in his decision notice disclosure of environmental information of the type requested by the applicants can add significantly to public knowledge of the risks posed by the development and better inform public debate. However, the Court considers that in the present case, a great deal of information was voluntarily provided to the public … The applicants have failed to demonstrate that any substantive documents were not disclosed to them. In any event, in respect of any information which they allege was not provided, they had access to a mechanism established by law to allow them specifically to seek particular information, a mechanism which they employed successfully. In the circumstances, the Court is satisfied that the authorities provided information as required by Article 8 and that there was an effective and accessible procedure by which the applicants could seek any further relevant and appropriate information should they so wish.

 250.      In conclusion, having regard to the information provided during the planning stage of the projects, to the provisions of the Environmental Information Regulations allowing access to environmental information and to the routes of appeal available in the FOI Act, the Court finds that the respondent State has fulfilled its positive obligation under Article 8 in relation to these applicants. There has accordingly been no violation of this provision.  …”

PRIVATE EMAILS AND FOIA: AAAARGGGHH!

Posted on | by Robin Hopkins

I blogged before Christmas about the ICO’s guidance on the circumstances in which emails sent from private accounts could come within the scope of FOIA. That guidance was prompted by a complaint to the ICO alleging that the Secretary of State for Education had used a private email account to communicate about departmental business. The complainant was the Financial Times‘ Chris Cook. A few hours ago, he published one of the emails about which he complained: https://blogs.ft.com/ftdata/2012/02/13/how-do-you-define-official/#axzz1mHjkKGlL

The ‘Goudie’ referred to in the email is 11KBW and Panopticon’s own James Goudie QC; the litigation prompting Mr Gove’s ‘aaargh!’ is the Building Schools for the Future judicial review, heard in January 2011, whose large cast of counsel included a smattering of Panopticonners (James Goudie, Rachel Kamm and me).

I also discussed the ICO’s guidance in an editorial comment piece, written at the end of 2011 and appearing in the latest issue of the Freedom of Information Journal: FOI Journal Vol 8 issue 3.

Robin Hopkins

CALL FOR EVIDENCE ON THE EUROPEAN COMMISSION’S DATA PROTECTION PROPOSALS

Posted on | by Rachel Kamm

The Government is seeking evidence on the  new legislative proposals for data protection, which were published by the European Commission on 25 January 2012. Responses are due by 6 March 2012 and can be submitted online here. The European Commission aims to have a final agreed legislative framework by 2014.

The European Commission has published in draft both a Regulation and a Directive. The proposed Regulation will set out a general EU framework for data protection to replace the 1995 Data Protection Directive, which is implemented into UK law by the Data Protection Act 1998. The proposed Directive will cover the protection of personal data processed for the purposes of prevention, detection, investigation or prosecution of criminal offences and related judicial activities (to replace the existing Data Protection Framework Decision).  For those of you who have not looked  at the proposals yet, the Government’s Call for Evidence is a good place to start for a summary.

Rachel Kamm

NICK GRIFFIN IN THE TRIBUNAL: APPLICANT BLINDNESS, THE “JOURNALIST’S ROUTE” AND ARTICLE 10

Posted on | by Robin Hopkins

BNP leader Nick Griffin was convicted in 1998 for publishing material likely to stir up racial hatred. In 2009, Ian Cobain, an investigative journalist at The Guardian, requested sight of all Crown Prosecution Service papers relating to that prosecution. The Commissioner upheld its refusal. In Cobain v IC and Crown Prosecution Service (EA/2011/0112 & 0113), the Tribunal considered 3 exemptions, namely ss. 40(2), 32(1) and 30(1) of FOIA. For the most part, Mr Cobain’s arguments prevailed.

The decision is notable – indeed, essential reading – for a number of its key points. For example: when it comes to journalists requesting sensitive personal data, FOIA is not “applicant blind”. More generally, the decision affirms the importance of FOIA in facilitating investigative journalism. The approach to Article 10 ECHR from the Kennedy “report” is boldly affirmed. General guidance on s. 30(1) is set out. I’ll look at the key points from each exemption in turn. The decision is worth quoting in some detail.

Section 40(2) (personal data)

A number of important points emerge. First, in general, just because information emerged during evidence in a public trial, this does not mean it should automatically be disclosed under FOIA:

“Much of the information… was freely publicised at the trial in 1998… Where the public interest is engaged (as here where s. 30(1)(c) is invoked) it does not by any means automatically follow that such publication in the past determines the question of disclosure today. Most witnesses are entitled to expect that their exposure to public scrutiny ends with the conclusion of their evidence. Those who make statements do so in the expectation that, if not used at trial, they will not surface later.”

Secondly, just because information is in a prosecution file, it does not follow that it is necessarily personal data. The Commissioner was criticised for insufficiently granular analysis:

“It was clear that the broad and unparticularised approach adopted in the First Decision Notice could not be upheld. The fact that it is information held in a file assembled for the purposes of criminal proceedings against Mr. Griffin (see DPA s.2(g)) does not make it sensitive personal data, unless it is personal data in the first place.”

Some of the disputed information was therefore outside s. 40(2) because it was not personal data in the first place. Other information, however, was sensitive personal data. This meant that not only would the usual conditions need to be met (fairness, lawfulness, condition 6(1)) but a Schedule 3 condition was also mandatory. Those can be difficult to meet – unless you are a journalist. Condition 10 triggers the Data Protection (Processing of Sensitive Personal Data) Order 2000. This contains particular “lawful processing” conditions for the purposes of, among other things, journalism: see article 3 of the Order, which also imposes other conditions such as the disclosure being in the “substantial public interest” and “in connection with” issues such as “the commission of an unlawful act”. Paragraphs 31-33 of the Tribunal’s decision contain a useful summary of how the relevant provisions work.

This “journalist’s route” (my term, rather than the Tribunal’s) to obtaining sensitive personal data has been considered in a number of Tribunal decisions. In this case, it was given full effect:

 “Disclosure of the sensitive data would be “in connection with” the commission of an unlawful act (hence the conviction), seriously improper conduct and arguably Mr. Griffin`s unfitness for political office. It would be for the purpose of journalism, Mr. Cobain`s occupation, and would be intended for publication in his newspaper and possibly thereafter, in a book. Given the issues involved, namely racial and/or religious hatred and the right to express even extreme views, we find that disclosure would be in the substantial public interest. We do not consider that the passage of eleven years before the request renders disclosure unfair, or unwarranted by reason of prejudice to Mr. Griffin`s interests nor likely to cause substantial damage or distress to him. In making that judgement we have regard to Mr. Griffin`s age ( 50 at the date of the request, 39 at the date of trial), his continuing political prominence and his apparent claim to be an educated, reasonable and responsible MEP and party leader who has rejected any racial extremism formerly associated with his party.”

How does this “journalist’s route” square with the usual “applicant blindness” FOIA principle? The ICO argued that the latter prevails, such that the former only applies to pure DPA cases, not to FOIA ones. It emphasized the wording of s. 40(3)(a): disclosure to “a member of the public otherwise than under [FOIA]”. It argued that the average member of the public is the reference point for a FOIA disclosure. The average member of the public is not a journalist. The “journalist’s route” therefore has no place in FOIA.

The Tribunal disagreed (as the First-Tier Tribunal has done on a number of occasions now). It relied on the Upper Tribunal’s judgment in the APPGER case on this point, and said that:

 “… a requester who fulfils one or more of the schedule conditions is also a member of the public ( and is not the data processor ) who is receiving the information under FOIA. If this were not so, FOIA would be a valueless tool for the serious researcher, journalist, writer, politician or scholar seeking to investigate serious wrongdoing within the preceding thirty years. If that were the case, it would be reasonable to ask whether FOIA was worth enactment.”

The effect in this case was that s. 40(2) did not apply at all.

Section 32 (court records)

Next, the CPS relied on s. 32, the ambiguous wording of which has opened the door for Article 10 ECHR arguments: see the Kennedy v Charity litigation (Panopticon passim) in which the First-Tier Tribunal’s “report” on the application and effect of Article 10 on s. 32 will be considered by the Court of Appeal later this month. The Tribunal in Cobain wholeheartedly adopted the Kennedy report:

“We adopt with gratitude and respect the very careful reasoning of the report on this issue, which we believe accurately states the law as to Article 10 as recently developed… We do not doubt that s. 32(1) can be read down in a way which is consistent with Article 10. We consider that limiting the restriction in [s. 32(1)] so that it ends once a reasonable time has elapsed after the exhaustion or evident abandonment of the available appeal process would avoid a breach of Article 10.”

Consequently, s. 32 was not available as a ground for refusal in this case.

The Article 10 issue is obviously of enormous importance to the interpretation of FOIA – particularly, but not exclusively for journalists. As things stand, the role of Article 10 is uncertain. At least two other First-Tier Tribunals have heard or will hear argument on it this month (in the contexts of ss. 23, 40(2) and 41); the Court of Appeal will consider it in two cases this month, and the Supreme Court gives judgment in Sugar v BBC next week. Watch this space.

Section 30(1) (investigations)

In the context of this case, this exemption was “unarguably” engaged. The Tribunal made the following observations about the public interest in maintaining this exemption:

“The Tribunal acknowledges the substantial public interest in many circumstances in protecting from disclosure information gathered for the purposes of a criminal case, including the need to offer informants and witnesses protection from public exposure and a prosecuting authority a proper space in which to discuss and decide issues that arise.”

As against that, it said this about the public interest in disclosure:

“On the other hand, the public has a legitimate interest in criminal investigations and resulting court proceedings, especially where the defendant was a prominent political figure charged with an offence of great current importance in proceedings that he was keen to publicise. The passage of time is also a consideration. Legitimate public interest in such a case continues due to the profile of the defendant but the risk of any impact on the resulting proceedings disappeared long ago. More importantly, the relevant information in this appeal does not include statements from potentially vulnerable witnesses or highly sensitive material”.

The Tribunal therefore concluded that, in general, the public interest favoured the disclosure of the disputed information in this case, except for three categories which could properly be withheld.

On s. 30(1), this decision is a useful summary of the most relevant considerations. It is on ss. 40(2) and Article 10, however, that it has given a fresh boost to requesters.

Robin Hopkins

ARTICLE 8 CHALLENGE TO ENHANCED CRIMINAL RECORDS REGIME FAILS (AT FIRST INSTANCE)

Posted on | by Robin Hopkins

Yesterday, the High Court(Kenneth Parker J) gave judgment in R (T) v (1) Chief Constable of Greater Manchester Police, (2) Secretary of State for the Home Department (Secretary of State for Justice an interested party) [2012] EWHC 147 (Admin). The judgment is available here:  T_v_Greater_Manchester_Police.

In July 2002, the Claimant was 11 years old. He received a warning (a private procedure, under the Crime and Disorder Act 1998) from Greater Manchester Police for the theft of two bicycles. His subsequent conduct was apparently exemplary. By section 113B of the Police Act 1997, Enhanced Criminal Record Certificates (ECRCs) must contain all convictions, cautions and warnings. The Claimant, a 20-year old student applying for a sports studies course, obtained his ECRC in December 2010. It contained details of the bike theft warning.

He argued that the inflexible requirement under the 1997 Act for all convictions, cautions and warnings to be disclosed in ECRCs was incompatible with Article 8 of the ECHR.

With overt reluctance, Kenneth Parker J dismissed the claim. His decision was based on the analysis of R (L) v Commissioner of Police for the Metropolis [2009] UKSC 3 [2010] 1 AC 410, where the majority of the Supreme Court decided that the disclosure of “information” (under s. 115(6) of the 1997 Act) potentially breached Article 8. Such a breach would be justified only if (a) the information is relevant to the decision for which the ECRC is required, and (b) disclosure is proportionate, taking into account factors such as the gravity of the material, the reliability of the information on which it was based, the relevance of the material to the particular job application, the period since the relevant events and the impact on the applicant of including the material in the ECRC.

The disclosure of “information” was, however, a separate matter from the disclosure of convictions, cautions and warnings. It was clear from L that, insofar as it required the latter, the 1997 Act was not open to challenge under Article 8.

Kenneth Parker J had great sympathy with the Claimant’s analogy with R (F) v Justice Secretary [2010] UKSC 17; [2011] 1 AC 331, in which the subjecting of the claimants to indefinite reporting requirements under the Sexual Offences Act 2003 was found to violate their rights under Article 8. As in F, the provisions under challenge in the present case provided for no reviews, and no exceptions. This caused the learned judge great concern. He observed that:

“… a system that allows no exceptions imposes a very heavy cost in terms of effect on the fundamental rights protected by Article 8 ECHR.  I am not persuaded that the marginal benefit that a system which admits no exceptions brings to, admittedly important, competing interests is justified as a matter of proportionality when the serious detrimental effects of such a system, particularly on child offenders, are weighed in the balance.  A system that permitted exceptions would probably be more prone to error, but only marginally so if the criteria for review were themselves conservative and risk averse.  The consequential improvement to the protection of Article 8 rights on the other hand, would be likely to be substantial.”

Nonetheless, his hands were tied by L: the requirement to disclose convictions, cautions and warnings did not violate Article 8. It may be a “bright line rule”, and arguably a harsh one, but the law has condoned such rules in other circumstances (see for example R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC).

The Claimant also sought to challenge the lawfulness of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 – which removes, in certain circumstances, the protections concerning spent convictions. This claim failed for the same reasons. Kenneth Parker J added this notable observation:

“In these circumstances I do not believe that there is any real independent issue about the legality of the Order under Article 8 ECHR.  The conclusion must be the same.  However, I should perhaps add that the reverse argument does not necessarily apply.  In other words, even if it were disproportionate under Article 8 ECHR for the state to disclose, say, a warning long ago given to a child for a minor criminal matter, it would not automatically be an infringement if the state permitted a private employer to enquire about all criminal convictions, to insist on truthful answers and to take appropriate action in response to the answers given.”

The learned judge also observed that, if he had had to decide the issue of whether the state had a positive obligation in these circumstances, he would have found that it did not.

The claims were accordingly dismissed. However, given their general importance and Kenneth Parker J’s reluctant conclusions, he granted leave to appeal.

11KBW’s Jason Coppel appeared for the Secretaries of State.

Robin Hopkins