REASONABLE OPINION OF A QUALIFIED PERSON: GUIDANCE FOR USERS

Posted on | by Robin Hopkins

In William Thackeray v IC (EA/2011/0069), the requester asked the Home Office for information it holds about Scientology. The resultant appeal to the Tribunal is the latest consideration of the FOIA exemptions for prejudice to the effective conduct of public affairs (s. 36) and legal professional privilege (s. 42). The appeal failed, and reliance on both these exemptions was upheld.

The s. 42 point was short: can litigation privilege be relied upon where judicial proceedings which have been formally instituted are subsequently withdrawn? Answer: yes. The established test with regard to the application of this kind of privilege is whether there is a reasonable prospect of litigation existing at the time of the creation of the document.

Thackeray is an important decision for its review of the general principles underpinning reliance on s. 36. Public authorities often run into difficulty in seeking to obtain the opinion of the qualified person (the precondition for engaging that exemption). Particular issues arise as to the timing of and basis for the QP’s opinion, i.e. when is the latest an opinion can be obtained, and what material must the QP consider if his or her opinion is to be reasonable?

The Tribunal in Thackeray considered these two issues. As to timing, it addressed this particular question: can the opinion of the QP be obtained after the statutory 20-day period for responding to a request, but before the conducting of the public authority’s internal review? In part, this is about whether an internal review is capable of remedying flaws in an original refusal notice. Here there was a refusal in June 2009, and the QP’s opinion was obtained in November 2009. The Appellant argued that this delay undermined the reasonableness of that opinion.

In answering that question, the Tribunal made the following general observations about the use of s. 36:

  • There is a strong argument for saying that the qualified person should be at or towards the very top level of accountability.
  • This responsibility cannot be delegated.
  • The precise role of the opinion is to state whether, in that person’s view, the prejudices under s. 36 are likely to arise from disclosure. An opinion is not about the public interest.
  • The Commissioner’s role is to assess that opinion for reasonableness, akin to a Wednesbury analysis in judicial review claims. The Commissioner can only reject the substance of the opinion if it was one that no reasonably qualified person would have taken.
  • The manner and timing of the obtaining of that opinion can be considered as part of that scrutiny of reasonableness.
  • To obtain the opinion ‘late’ (i.e. after the initial refusal) is not akin to ‘late reliance’ upon an exemption.
  • The provision of the opinion by the internal review stage is sufficient. The Tribunal endorsed the approach in McIntyre v IC and MoD (EA/2007/0061), where it was held that an opinion can suffice to engage s. 36 where it is reasonable in substance, even if it was arrived at in a flawed or unreasonable manner.

As to content (i.e. the question of what must be before the QP when he or she forms her opinion), the Tribunal considered whether the QP must give consideration to the application of that FOI exemption, and whether he or she must consider the actual disputed information before reaching their opinion. This arises particularly in relation to government ministers, who in practice often make such decisions based on submissions from civil servants, rather than on the basis of actual consideration of the underlying material for themselves.

Does such an approach undermine reliance on s. 36? No, said the Tribunal. Failure to inspect the disputed information will not without more render the opinion redundant or unreasonable. It is sufficient if it is shown that the qualified person’s opinion was based on a proper understanding of the disputed information. The civil service approach, and other such approaches to obtaining the opinion of a QP, survives intact.

Robin Hopkins

ABSOLUTE EXEMPTION AN UNJUSTIFIED INTERFERENCE WITH ARTICLE 10 ECHR

Posted on | by Robin Hopkins

Article 10 of the European Convention on Human Rights – the right to freedom of expression – has begun to make its presence felt in FOIA and EIR case law. For example, I have recently reported on Sinclair v IC and Department for Energy and Climate Change (EA/2011/0052), in which Article 10 was raised in the context of exceptions under the EIR, but was held not to make a difference. In particular, the First-Tier Tribunal in that case took the view that there was as yet no clear and consistent Strasbourg jurisprudence supporting Mr Sinclair’s reliance upon Article 10.

A differently constituted First-Tier Tribunal (FTT) has taken the opposite view. Readers may recall the unusual twist to the Court of Appeal’s decision of May this year in Kennedy v IC and Charity Commission [2011] EWCA Civ 367: Mr Kennedy requested information concerning the Charity Commission’s inquiry into the Mariam Appeal (founder: George Galloway). The CC refused, relying on the absolute exemption at s. 32(2) FOIA, which applies to documents created or held for the purposes of an inquiry or investigation. The crucial question of construction was this: does the exemption apply to past/closed investigations, or only to current/live ones? The Court of Appeal favoured the former, broader interpretation on conventional construction grounds, but was then persuaded that, given the ambiguity of the statutory language, Article 10 ECHR may have a bearing. It stayed the Court of Appeal proceedings and remitted the following question to the FTT for determination:

“Whether s.  32(2) of FOIA should in the circumstances be read down pursuant to s. 3 of the Human Rights Act 1998 and Article 10 of the ECHR, so that the exemption that it provides from disclosure of information ends upon the termination of the relevant statutory inquiry.”

Although it admitted to finding this a “daunting task”, involving “extremely complex analysis of human rights law more suited to higher courts”, the FTT has answered yes to the above question. This is not an FTT decision in the usual sense. Rather, the FTT’s recent determination in Kennedy v Charity Commission (EA/2008/008) is a (perhaps) unprecedented legal specimen, namely a “report to the Court of Appeal”.

The FTT began its report by noting the case law on the importance of the media in a modern democracy.

It then considered the crucial issue of whether Article created a general right to receive information from public authorities. The task for a domestic court (see Ambrose v Harris of 2011, per Lord Hope) is to “identify “as best it can where the jurisprudence of the Strasbourg court clearly shows that it stands on the issue.”

By way of simplified synopsis of the FTT’s survey of Strasbourg jurisprudence on whether Article 10 creates a general right of access to receive information: a number of Strasbourg authorities – Leander v Sweden, Gaskin v UK, Guerra v Italy, Roche v UK – have said no. In other more recent cases – Társaság v Hungary, Kenedi v Hungary – the court appears to have said yes. In the FTT’s view, recent Court of Appeal decisions in the UK – A v Independent News & Media, BBC v Sugar (No 2) – suggest that the latter has crystallised into a new Strasbourg stance, and the recent Divisional Court decision in R(Guardian News & Media) v City of Westminster Magistrates’ Court did not cast doubt on that general drift.

The FTT summed up its conclusions thus:

“As best we can the FTT considers that this developing jurisprudence is not necessarily granting a general right to receive information under Article 10. Such a general right of access still only exists as set out under Leander. It has advanced, however, towards a broader interpretation of the notion of freedom of information which has recognised an individual right of access conferred by Article 10(1) but which is subject to certain “formalities, conditions, restrictions or penalties” described in Article 10(2). This may be where a social watchdog is involved and there is a genuine public interest as in Társaság or where historical research is being hindered on a matter of public importance as in Kenedi. It appears to us that this extension of scope of Article 10(1) is now being consistently applied and recognised by a number of chambers of the ECtHR. Our Court of Appeal has also recognised this as a clear development. In our view this has not led to a general right to receive information as that would be going too far. However it is now clear that the ECtHR has developed a wider approach from that first established in 1978 to the notion of “freedom to receive information”. There is now recognition of an individual right of access to information in certain circumstances.”

The FTT did not decide whether or not a prerequisite for Article 10 is the public authority’s having a “monopoly” over that information – the CC had such a monopoly in these circumstances in any event.

As Mr Kennedy represented a “social watchdog”, his right under Article 10(1) was engaged, and the absolute exemption at s. 32(2) (if interpreted to extend beyond the duration of the inquiry) was an interference with that right.

The FTT also decided that this interference could not be justified in these circumstances. Although the exemption pursued a legitimate aim, it was a disproportionate interference. It observed that where a social watchdog is involved, any balancing of interests is more likely to weigh in favour of individual rights. It expressly rejected the proposition that this outcome could only arise where applicants are journalists.

Finally, the FTT decided that this unjustified interference was to be remedied by the following interpretation: “by limiting s 32(2) to documents held by inquiries that have not concluded, Mr Kennedy’s Article 10 rights will not be interfered with in a disproportionate way”.

What now? The hearing will be resumed in the Court of Appeal, which will have the benefit of the FTT’s report. Panopticon can also confirm that there a number of other cases dealing with other absolute exemptions currently in the court and tribunal systems which will consider the application of Article 10. The FTT’s “report” in Kennedy therefore does not represent a settled position. It is, however, a very interesting twist.

Rachel Kamm appeared for the Charity Commission in the FTT.

Robin Hopkins

CAMPAIGN AGAINST ARMS TRADE – SECTION 27

Posted on | by Rachel Kamm

The First Tier Tribunal (Information Rights) has been considering international relations in Campaign Against Arms Trade v Information Commissioner and Ministry of Defence, EA/2011/0109.

The Campaign Against Arms Trade contacted The National Archive by email on 22 May 2009 to request access to files held under reference nos. DEFE68/133 and DEFE68/136. File 133 was entitled or described as relating to the “[MOD]: Central Staff: Registered Files and Branch Folders: sale of arms to Saudi Arabia”. The file was said to be made up predominantly of “telegrams, memos and general correspondence to deal with the negotiations which took place during 1971/72 regarding the Saudi Arabian Air Defence Program (SADAP)”. File 136 was stated as dealing with the follow-up to the Saudi decision not to renew a contract for the training and maintenance of aircraft operated by the Royal Saudi Air Force with the British firm, Airwork, but to give it to the Pakistani Air Force instead.

The National Archive released the files with redactions and invoked section 27(1) and section 27(2) of the Freedom of Information Act 2000 (FOIA).  Section 27(1) provides that “Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice –(a) relations between the United Kingdom and any other State, (b) relations between the United Kingdom and any international organisation or international court, (c) the interests of the United Kingdom abroad, or (d) the promotion or protection by the United Kingdom of its interests abroad.” The MoD relied on (a), (c) and (d) of section 27(1). They also relied section 27(2), which provides that  “Information is also exempt information if it is confidential information obtained from a State other than the United Kingdom or from an international organisation or international court”. Both of these are qualified exemptions.

The Information Commissioner found that the exemptions in sections 27(1)(a), (c) and (d) and also section 27(2) were engaged. Having considered the balance of the public interest, he ordered limited disclosure of the previously redacted material. The appellant did not challenge this decision with respect to section 27(2) and therefore the Tribunal’s decision is only concerned with section 27(1).

The Tribunal considered the decision of Gilby v Information Commissioner and Foreign & Commonwealth Office (EA/2007/0071, 0078 and 0079).  The Tribunal commented that it was not bound by Gilby but that it was following the same general approach: “If corrupt activities on the part of UK officials are evident from the papers, as defined in paragraph 59 of the Gilby decision, there is a strong public interest in disclosure“. However, it had “real difficulty in applying a workable and justifiable approach to partial disclosure of documents through redaction“.

The Tribunal concluded that section 27(1) was engaged and that the Commissioner had properly applied the public interest considerations. It rejected the argument that, given the level and extent of disclosure in the wake of the Gilby decision and indeed in another context, disclosure of much although not all of the requested information would not necessarily lead to an unfavourable reaction on the part of Saudi Arabia.

Interestingly, the Tribunal commented on its approach where the parties have agreed to an appeal being determined on the papers without a hearing. Where the parties so consent, the Tribunal “is firmly of the view that it must therefore approach this appeal with a proper sense of proportion and also with a due sense and degree of proportionality. The costs which would be attendant on a more protracted exercise means that a minute dissection of what is a substantial body of information cannot properly be justified at least in the present case and the Tribunal so finds“. The parties should bear this comment in mind, when deciding whether or not to request an oral hearing of an appeal.

DATABASE RIGHTS AND BREACH OF CONFIDENCE

Posted on | by Rachel Kamm

The Chancery Division has considered the scope of the database rights in the Copyright, Designs and Patent Act 1998  in Forensic Telecommunications Services Ltd v Chief Constable of West Yorkshire [2011] EWHC 2892 (Ch).

The Claimant was a forensic services company, which recovered digital evidence from mobile phones for criminal investigations. It had a list of the permanent memory absolute addresses for different types of phone (known as PM Abs addresses) and it created software from this list. The Claimant had granted the security service a licence to use the software, but this did not extent to law enforcement agencies. A police officer (who was the Second Defendant to the claim) received several PM Abs addresses from a security operative and he posted them on the internet. Other law enforcement officers added to the list. The police officer created a list which contained 32 of the Claimant’s 33 PM Abs addresses. The police officer used this list to create software that was similar to the Claimant’s software.

The Claimant issued a claim against the police officer’s force (the Chief Constable of West Yorkshire) and the police officer personally, alleging infringement of its copyright and database rights.

The Court found that no copyright subsisted in the individual PM Abs addresses because the skill, judgement and labour expended in ascertaining the addresses was not of the right kind to attract copyright protection. The PM Abs list was however a database because the addresses were systematically arranged and individually accessible (meeting the test in section 3A of the Copyright, Designs and Patents Act 1988) and therefore it was not protected by copyright. The Claimant had made a substantial investment in obtaining and verifying the data on the list and therefore a database right subsisted in the list. The police officer had extracted and re-utilised a substantial part of the database and thereby infringed the Claimant’s database right. The police force was vicariously liable for this act of infringement.

The Claimant also succeeded in a claim for breach of confidence against both Defendants. The PM Abs list had the necessary quality of confidence, since it was valuable information collated by  the Claimant through the exercise of skill, judgement and labour which was not in the public domain. The police officer had misused this confidential information by posting the list on the website forum and making copies of it for his own use. The police force was again vicariously liable for the police officer’s actions.

SECTION 38 FOIA: MEANING OF “ENDANGER”; IN-BUILT PUBLIC INTEREST

Posted on | by Robin Hopkins

The British Union for the Abolition of Vivisection’s requests for information from Newcastle University have reached the Tribunal system before: see my post from May this year on the Upper Tribunal decision concerning the meaning of “held”. The latest First-Tier Tribunal litigation between these parties, BUAV v IC and Newcastle University (EA/2010/0064), again considered information about project licences for experimentation on non-human primates. The Tribunal found that the University was required to disclose that information, except for a small amount which it was entitled to withhold on the basis of sections 38(1) (health and safety) and 43(2) (prejudice to commercial interests).

Section 38(1) crops up relatively infrequently at Tribunal level (for another notable example, see my post on the PETA case of 2010 – which, interestingly, also concerned a request to a university for information concerning animal experimentation). This BUAV decision is arguably now the leading case on this exemption.

There are four important points to note. First, what does “endanger” mean? BUAV submitted that it is the section 38 equivalent of “prejudice” as used in other exemptions. The University submitted that the “endangerment” requirement was met where there was a weighty chance of a risk to health or safety. The Tribunal drew a distinction between “risk” and ”danger”, saying this:

“We do not fully accept either submission. We must take into account that in s38(1) Parliament chose to use the word “endanger” and did not refer either to “injury” or to “prejudice”. On the other hand, considering the statutory purpose of freedom of information, balanced by exemptions, we are not persuaded that it would be right to read the word “endanger” in a sense which would engage the exception merely because of a risk. A risk is not the same as a specific danger. Every time a motorist drives on the road there is a risk that an accident may occur, but driving is only dangerous when a particularly risky situation arises. So, for example, there is always a risk that a researcher might become a target for persons opposing animal research by unlawful and violent means, but the researcher’s physical health would not be endangered unless a specific attack were made. We need to consider the likelihood of such an attack, and the likelihood of other conduct which would endanger mental health or other aspects of safety.”

Secondly, the Tribunal emphasised the importance of establishing a causal link between disclosure of the particular information and the envisaged danger:

“There is also a causation criterion to be met. We are not required to consider in the round the likelihood of the researchers or other persons being endangered, but specifically the likelihood of such endangerment as a result of disclosure of the requested information.”

For most of the requested information, section 38(1) was not engaged: the evidence showed the risk of harmful action by animal rights extremists to be low, and the evidence in support of engaging the exemption mainly comprised expressions of fear. A small amount of information did, however, come within the exemption because of how it was likely to be misconstrued. This raises the third important point, on which the Tribunal said this:

“In this connection we wish to make clear our view that information cannot generally be withheld simply because it might be misunderstood or taken out of context. A public authority can publish together with information released under FOIA whatever explanations or additional information it wishes. But we recognise that there comes a point where a particular piece of information may be so liable to be misunderstood and misused that the exemption is engaged.”

The fourth notable point concerns the in-built weight of the exemption. Section 38(1) is difficult to engage, but where it is engaged, the public interest in maintaining it is strong:

“Self-evidently, there would need to be very weighty countervailing considerations to outweigh a risk to health or safety which was of sufficient severity to engage section 38(1).”

Tim Pitt-Payne QC appeared for Newcastle University.

Robin Hopkins

AGGREGATION AND ARTICLE 10 IN THE FIRST-TIER TRIBUNAL: NEITHER NEEDED

Posted on | by Robin Hopkins

Sinclair v IC and Department for Energy and Climate Change (EA/2011/0052) concerned a request under the EIR from the Taxpayers’ Alliance for information on the potential financial and/or economic cost of Britain meeting a pledge to cut emissions by 42 per cent from 1990 levels by 2020. This pledge had been considered in connection with the Copenhagen Conference on climate change in 2009.

DECC refused this request, relying on regulations 12(5)(a) (disclosure would adversely affect international relations) and 12(4)(e) (internal communications).

In one of the first applications of the “aggregation” approach to the public interest test approved by the ECJ in the OFCOM case (on which, see here), the Commissioner held that the composite aggregated weight of the public interest factors in maintaining the two exceptions outweighed those which favoured disclosure – the international relations exception alone would not have sufficed.

The Tribunal was sufficiently impressed by DECC’s evidence to conclude that aggregation was not needed – the public interest in maintaining the international relations exception was sufficient to outweigh that in disclosure.

Interestingly, the Tribunal also considered an Article 10 ECHR argument: the appellant relied on that Article in support of his right to the requested information. The Tribunal found that Article 10 did not assist the appellant on the facts of his case. Its views on the application of Article 10 to information rights more generally was as follows.

In terms of authorities supporting the application of Article 10 to information rights, the high point was the Second Chamber decision in the ECtHR in Társaság a Szabadságjogokért v Hungary (Application no. 37374/05), in which the state had conceded that Article 10 rights were engaged where a civil liberties pressure group requested information about a complaint to the Constitutional Court.

Previous Grand Chamber authorities, however, had consistently rejected the proposition that Article 10 supported a right of access to official information.

The Tribunal is required to follow any clear and consistent Strasbourg jurisprudence. It found that “there is as yet no clear decision that Article 10 extends as far as Mr Sinclair submitted”.

11KBW’s Holly Stout appeared for the Information Commissioner.

Robin Hopkins