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

JUDICIAL REVIEW AND THE DPA: PATIENT’S CONSENT VITAL

Posted on | by Robin Hopkins

The Court of Appeal last week gave judgment in R (on the application of TA) v North East London NHS Trust (not yet reported or publicly available). The case is an interesting illustration of (a) the Data Protection Act 1998 being used as a ‘shield’ in an application for judicial review, and (b) the vital importance of patient consent in the use of medical records.

TA was engaged in family court proceedings with his ex-wife concerning custody of their children. Part of her evidence in support of her suitability to care for the children was the report of a psychiatrist at the defendant NHS Trust. According to that report, TA’s ex-wife did not suffer from a mental health disorder. TA complained to the Trust about this report. It refused to investigate the refusal because to do so would require it to access his ex-wife’s medical records. She had refused her consent to that access, and the Trust’s position was therefore that it could not investigate TA’s complaint without breaching the data protection principles in its processing of his ex-wife’s (sensitive) personal data. TA’s application for judicial review of the Trust’s refusal failed. So too did his appeal to the Court of Appeal.

Robin Hopkins

THREE NEW PUBLIC AUTHORITIES SUBJECT TO FOIA

Posted on | by Robin Hopkins

The Freedom of Information (Designation as Public Authorities) Order 2011 came into force on 1st November 2011. It brings the following three public authorities within the scope of FOIA: the Associaton of Chief Police Officers of England, Wales and Northern Ireland (ACPO); the Financial Ombudsman Service and the Universities and Colleges Admissions Service (UCAS).

VEXATIOUS REQUESTS: LOOK TO THE DICTIONARY, AND TO COMMON SENSE

Posted on | by Robin Hopkins

Readers with an eye on the correct application of section 14 of FOIA – vexatious requests – will be familiar with the ICO’s guidance on and approach to deciding whether a request meets that definition. The touchstones are obsessiveness, imposing a significant burden, lacking a serious purpose and/or causing distress, disruption or annoyance. The Tribunal has on many occasions approved those touchstones as being useful guidance. Two very recent decisions, however, have seen the Tribunal preferring to emphase a common-sense and dictionary-led approach in preference to a checklist of tests: see Graham v IC (EA/2011/0133-34) and Ainslie v IC and Dorset County Council (EA/2011/0097).

This fresh emphasis is encapsulated in the following words of the Tribunal:

“While the Information Commissioner may have developed his own guidance with respect to this matter; from the perspective of the tribunal the common sense application of the ordinary meaning of the word to the actual circumstances of an individual case must be the correct approach to adopt. The Oxford English dictionary provides useful guidance as to the meanings of vexatious and associated words. While this guidance extends over several columns it seems to the tribunal that a definition of “tending to cause trouble or harassment by unjustified interference” fairly summarises the meaning.”

Robin Hopkins

CAN REQUESTERS ASK FOR SUMMARY INFORMATION?

Posted on | by Robin Hopkins

Suppose a FOIA request is refused in reliance upon exemptions. Is the requester entitled to submit a further request, asking for summaries of that same information such that the summaries do not contain any exempt information?

This question was considered in Pounder v IC and MOJ (EA/2011/0116). The Tribunal agreed with the Commissioner that the answer to this question is ‘no’. A requester is only entitled to ‘information held’, so if a summary document exists at the time of the request, then that is within scope and (subject to exemptions) must be disclosed. Otherwise, public authorities are not required to create or compile summaries so as to help requesters ‘get round’ exemptions.

Section 11(1)(c) of FOIA provides that where a complainant specifies a preference for the requested information to be produced in the form of a summary or similar précis, the public authority should give effect to that request and preference where reasonably practical to do so. This provision, said the Tribunal, comes into play only once this prior question has been determined, namely: to what information is the requester entitled? The public authority must consider the scope of the request, identify the information it holds within that scope and apply exemptions as it sees fit. Only then must a ‘section 11 preference’ be given effect to where reasonably practical. If a ‘summary’ is not held at the time of the request, then it need not be created.

Robin Hopkins

CRITICISM OF RIPA

Posted on | by Rachel Kamm

Justice has published a report, Freedom from Suspicion, calling for “a fundamental overhaul of the Regulation of Investigatory Powers Act in order to protect the right of individual privacy from unnecessary, unwarranted and unchecked state intrusion“. The press notice highlights some of the report’s findings:

  • Since RIPA came into force in 2000, there have been 20,000 interception warrants (e.g.secretly listening to phone calls and reading emails), more than 30,000 authorisations for directed surveillance (e.g. following someone in public), and more than 2.7 million requests for communications data (e.g. access to phone bills). The true extent of surveillance activity since 2000 is unknown because full numbers have never been published;
  • Of the nearly 3 million surveillance decisions taken by public bodies under RIPA since 2000, fewer than 5,000 (or 0.5%) were approved by a judge;
  • The highly secretive Investigatory Powers Tribunal, the main complaints body under RIPA, has only dealt with 1,100 complaints since RIPA began. In the last decade, it has only upheld ten complaints;
  • RIPA is poorly-drafted and lacks sufficient safeguards against abuse. This has contributed to the failure of the Metropolitan police to properly investigate phone-hacking, the illegal recording of privileged conversations between lawyers and clients, the spread of CCTV cameras, and the use of snooping powers by local authorities.
The report argues that the proposed amendments to RIPA put forward in the Protection of Freedoms Bill are nowhere near enough to bring Britain’s surveillance laws in line with human rights standards.