UFO OFFICIALS’ PRIVACY PROTECTED

Posted on | by Robin Hopkins

This afternoon’s Tribunal decision in McGonagle v IC and MOD (EA/2011/0104) brings a sci-fi twist to FOIA caselaw. The decision is a straightforward application of the s. 40(2) exemption for personal data. The context is rather quirkier: the requester had sought the names of former Ministry of Defence officials responsible for UFO matters (note: that role has now been disbanded). The Tribunal found that the exemption applied. For those with an interest in such things, however, the MOD’s publication scheme provides rather a lot of UFO-related material.

Robin Hopkins

DUCHY OF CORNWALL IS A PUBLIC AUTHORITY

Posted on | by Robin Hopkins

The Tribunal’s decision in Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182) was published yesterday. The issue was whether the Duchy is a “public authority” for the purposes of the Environmental Information Regulations 2004. The Tribunal decided that it is. 11KBW’s Karen Steyn and Joseph Barrett appeared for the Appellant, Amy Rogers (led by Jonathan Crow QC) appeared for the Duchy and Attorney General, and I appeared for the Information Commissioner. Panopticon will provide some analysis of the decision shortly – but in the meantime, there has been considerable press coverage: see for example here and here.

Robin Hopkins

AGGREGATION UNDER S. 12 FOIA: STICK TO THE STATUTORY TEST

Posted on | by Robin Hopkins

In Benson v IC and the Governing Body of Buckinghamshire New University (EA/2011/0016), the public authority relied upon s. 12 FOIA (cost of compliance) in refusing the multi-part request. In so doing, it aggregated the requests, i.e. it looked at the cost of complying with all parts of the request cumulatively, rather than on a part-by-part basis. Regulation 5(1) of the 2004 Fees Regulations allows for the aggregation of requests where two or more requests made by or on behalf of the same person within a 60-day period “relate, to any extent, to the same or similar information”. The Commissioner agreed with the public authority. He referred to Fitzsimmons v IC and DCMS (EA/2007/0124), where the Tribunal had emphasised the width of the test for aggregation (“to any extent”; “same or similar”).

The Commissioner also took the view that requests were similar where there was an “overarching theme” or “common thread” running between them in terms of the nature of the information requested.

The Tribunal allowed Mr Benson’s appeal. Much turned, of course, on the specific facts. But those who encounter or apply s. 12 FOIA will wish to note the following more general observations (see paragraph 29).

First, tests such as “overarching theme” or “common thread” were, in the Tribunal’s view, not compelling, because they raised concepts not used in the legislation itself.

Secondly, any consequent uncertainty should be resolved in the requester’s favour (though it is not immediately clear whether this last point was intended to be case-specific or more general).

Robin Hopkins

PUBLIC AUTHORITY

Posted on | by James Goudie KC

The Irish Commissioner for Environmental Information, Emily O’Reilly, on 30 September 2011 ruled that Anglo Irish Bank is subject to requests from the public relating to the environment, on the basis that for environmental information purposes the Bank, which was nationalised in January 2009, is a public authority.  The Bank had, under the European Communities (Access to Information on the Environment) Regulations 2007, refused requests relating to matters such as travel expenses and properties on the basis that it is a company, as indeed it is.  The Bank argued that it is not a public body, even though all its shares are held by the Minister of Finance.  The Commissioner, Case CEI/10/0007, disagreed.  The Bank can appeal to the High Court.

A company in which all the shares are directly held by a Minister of the Government is not amongst the entities specifically listed in EU Directive 2003/4/EC or the Aarhus Convention, but is specifically listed in the Irish Regulations, on their plain and ordinary reading.  The Commissioner ruled that the meaning of the Irish Regulations is clear and unambiguous, without any further conditions applying as to public administrative functions and responsibilities.  Nor did she regard this as being at odds with the Directive.  On the contrary she said that “it is very arguable that the Directive, in particular Recitals (11) and (24), encourages and enables Member States to take an expansive approach” to what constitutes a “public authority”.   (The same can be said of the Aarhus Convention, in particular Article 2.2.)  She did not accept that the definition of “public authority” in the Irish Regulations should be interpreted restrictively where a Member State has apparently chosen to take an expansive approach to the definition.

In the UK under FoIA and the Environmental Information Regulations 2004, and their Scottish equivalents, a company which has no members other than a Minister of the Crown (including a Northern Ireland Minister) is a public authority.  No doubt a UK Court would agree that this is not at odds with the Directive, either as being in accordance with it or as being a legitimate expansion of it (and, in the case of the Environmental Information Regulations, made under the European Communities Act 1972, intra vires).

DUTY TO PUBLISH

Posted on | by James Goudie KC

Part 2 of the Local Government, Planning and Land Act 1980 (Sections 2 to 4) relates to publication of information by local authorities.  These provisions implemented some of the proposals which were contained in a consultation document, “Publication of Financial and Other Information by Local Authorities”, issued by the Department of the Environment in October 1979.  As originally envisaged, the placing of a duty upon local authorities to publish information with regard to the discharge of their functions was to be secured primarily by regulations made by the SoS under the Act, but with supplementation from a Code of Practice prepared jointly by CIPFA and SOLACE.  As enacted, s2 makes a Code of Recommended Practice (or more than one) the primary vehicle for securing publication by specified authorities of this information, the SoS retaining a fallback power to enable him to make regulations requiring authorities to comply with any provision in the Code or Codes if in some way they fail to do so.  S3 gives the SoS power to make regulations in order to secure that where they are not already doing so authorities publish the information which is required by any code of recommended practice issued under s2.

Pursuant to s2, on 28 September 2011 the SoS published a Code of Recommended Practice for (English) Local Authorities on Data Transparency.  Paragraph 12 states that, as a minimum, the public data, meaning the objective, factual data, on which policy decisions are based and on which public services are assessed, or which is collected or generated in the course of public service delivery, that should be released are:

  • Expenditure over £500, (including costs, supplier and transaction information).  Any sole trader or body acting in a business capacity in receipt of payments of at least £500 of public money should expect such payments to be transparent.

 

  • Senior employee salaries, names (with the option for individuals to refuse to consent for their name to be published), job descriptions, responsibilities, budgets and numbers of staff.  ‘Senior employee salaries’ is defined as all salaries which are £58,200 and above (irrespective of post), which is the Senior Civil Service minimum pay band.  Budgets should include the overall salary cost of staff reporting to each senior employee.

 

  • An organisational chart of the staff structure of the local authority including salary bands and details of currently vacant posts.

 

  • The ‘pay multiple’ – the ratio between the highest paid salary and the median average salary of the whole of the authority’s workforce.

 

  • Councillor allowances and expenses.

 

  • Copies of contracts and tenders to businesses and to the voluntary community and social enterprise sector.

 

  • Grants to the voluntary community and social enterprise sector should be clearly itemised and listed.

 

  • Policies, performance, external audits and key inspections and key indicators on the authorities’ fiscal and financial position.

 

  • The location of public land and building assets and key attribute information that is normally recorded on asset registers and

 

  • Data of democratic running of the local authority including the constitution, election results, committee minutes, decision-making processes and records of decisions.

Paragraph 20 states that the Government believes that local transparency can be implemented in a way that complies with the DPA.

FROM NAKED PHOTOS TO NUCLEAR ENRICHMENT: ROUNDUP OF NEW TRIBUNAL DECISIONS

Posted on | by Robin Hopkins

The past week saw a slew of new decisions from the First-Tier Tribunal. Here is Panopticon’s highlights package.

Sections 41 (information obtained in confidence) and 43 (commercial prejudice)

In DBIS v IC and Browning (EA/2011/0044), the requester (a Bloomberg journalist) had sought information from the Export Control Organisation in connection with licences issued for the exporting to Iran of “controlled goods” – explained by the Tribunal as “mainly military, dual use (potentially military), equipment designed for torture or repression or sources of radio-activity”. The relevant public authority, the Department for Business, Innovation & Skills, refused the request, relying on sections 41 and 43. The IC found for the requester on the narrow basis that, whilst disclosure would result in a breach of confidence, no commercial detriment would be suffered by the licence applicants as a result. Subsequent evidence from the Department persuaded the IC to change position and support the appeal, which was resisted by the applicant. In a decision which turned on the evidence, the Tribunal allowed the appeal, and found both sections 41(1) and 43(2) to be effective.

Section 42 (legal professional privilege)

Two recent decisions on this exemption. Both saw the Tribunal uphold the refusal, applying the established approach under which this exemption has a strong in-built public interest. Szucs v IC (EA/2011/0072) involved an FOIA request about an earlier FOIA request (the appellant requested the legal advice and associated documents provided to the Intellectual Property Office about how to deal with a previous FOIA request made by the appellant’s husband). Davis v IC and the Board of Trustees of the Tate Gallery (EA/2010/0185) is eye-catching primarily because it concerned the Tate’s legal advice concerning the inclusion in an exhibition of a photograph of the actress Brooke Shields, aged ten, naked, entitled “The Spirit of America” (the Tate had initially proposed to include this in an exhibition, but ultimately withdrew the photograph).

Section 40 (personal data)

Beckles v IC (EA/2011/0073 & 0074) concerned the identifiability of individuals from small sample sizes, in the context of information about dismissals, compromise agreements and out-of-court settlements. The appellant asked Cambridge University for information on (among other things) the number of employees who received post-dismissal settlements. The answer was a low number. He asked for further details concerning the settlement amounts, rounded to some appropriate non-exact figure. This, said the Tribunal (applying the Common Services Agency/Department of Health approach to identifiability from otherwise anonymous figures) was personal data, the disclosure of which would be unfair. Its reasoning is summed up in this extract:

“Information as to the settlement of a claim made by an identified individual relating to his or her employment is undoubtedly personal data. The question is whether the four individuals or any of them could be identified if the information requested were disclosed, even in approximated form…. Cambridge University is made up of a large number of much smaller academic or collegiate communities. It is likely that a number of colleagues or friends will be aware that a particular individual settled a claim with the University within the time-scale specified. They will be aware of the general nature of that person`s employment. This is a small group of claims in a relatively short period. In the form originally requested it is readily foreseeable that one or more of the four will be identified.”

Sections 24 (national security) and 27 (international relations)

Burt v IC and MOD (EA/2011/0004) concerned information gathered by staff of the UK Atomic Weapons Establishment on an inspection visit to a United States atomic energy facility, as a learning exercise regarding the proposed development of an enriched uranium facility at Aldermaston. The US had expressed its desire to maintain proper confidence in what it regarded as a sensitive area. The MOD refused the request, relying on sections 27 and 24. By the time of the appeal, only a small amount of information had not been disclosed. This was primarily of a technical nature, containing observations about the operation of plant, machinery, procedures and processes at the US facility.

The Tribunal upheld the MOD and Commissioner’s case as regards the outstanding material. As regards section 27, the Tribunal applied the principles from Campaign against the Arms Trade v IC and MOD (EA/2006/00040). It observed, however, that confidential information obtained from another country would not always be protected by section 27: it was “perhaps axiomatic that the foreign State will take the United Kingdom as it finds it including but not limited to the effect of its own domestic disclosure laws. It follows that there may well be cases where information otherwise imparted in confidence from a foreign State to a United Kingdom authority would need to be considered on its own merits as to whether some form of disclosure should be made or ordered whether under FOIA or under similar analogous legislation or principles such as the UK data protection principles.”

As regards section 24, the Tribunal applied Kalman v IC and Department of Transport (EA/2009/0111) (recourse to the exemption should be “reasonably necessary” for the purpose of safeguarding national security), and Secretary of State for the Home Department v Rehman [2003] 1 A 153 (the threat to national security need not be immediate or direct).

Burt is also an example of a “mosaic effect” case: taken in isolation, the disputed information may appear anodyne, but the concern is with how it might be pieced together with other publicly available information.

Section 14(1) FOIA (vexatious requests)

Dransfield v IC (EA/2011/0079) is an example of the Tribunal overturning the Commissioner’s decision that section 14(1) had been engaged (for another recent example, see my post here). As with many such cases, the history and context were pivotal. Given that it is the request, rather than the requester, which must be adjudged to be vexatious, how should the context be factored in? The Tribunal gave this useful guidance:

“There is, however, an important distinction to be drawn between taking into account the history and context of a request, as in the cases referred to above, and taking into account the history and context of other requests made by a requester or other dealings between the requester and the public authority. The former is an entirely proper and valid consideration. The latter risks crossing the line from treating the request as vexatious, to treating the requester is vexatious. That line, in our view, was crossed in the present case.”

Robin Hopkins