CUMULATING INTERESTS – EUROPEAN COURT DECISION IN THE OFCOM CASE

Posted on | by Rachel Kamm

Where multiple exemptions under the Environmental Information Regulations 2004 are engaged and there is some public interest in maintaining each exemption, should those public interests be considered cumulatively and weighed together against the public interest in disclosure? Or must the environmental information be disclosed unless the public interest is in favour of maintaining (at least) one particular exemption (considered separately from any others)?

We finally have an answer to this question, after decisions by the Information Tribunal, High Court and Court of Appeal, followed by a referral by the Supreme Court and an opinion by Advocate General Kokott. The answer is that we must cumulate/aggregate the public interests; the Court of Justice of the European Communities has given judgment in OFCOM v Information Commissioner  (Case C-71/10).

The reasoning is characteristically concise. The Court noted that disclosure should be the general rule and “grounds for refusal should therefore be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal” and that the Directive did not set out any particular procedure for Member States to examine the grounds for refusal where there are exceptions to the general rule.

Having set out that context, the Court analysed the text of the Directive and concluded that “ the second sentence of the second subparagraph of Article 4(2) is concerned with the weighing against each other of two overarching concepts, which means that the competent public authority may, when undertaking that exercise, evaluate cumulatively the grounds for refusal to disclose“. Whilst the Directive also emphasised the duty to weigh the interests involved “[i]n every particular case“, this was a reference to the need to weigh the interests “on the basis of an actual and specific examination of each situation“.

The Court noted that the interest in relation to separate exceptions may overlap. It further commented that if the process of cumulating interests were to result in a refusal to disclose, “it would need to be acknowledged that that restriction on access to the information requested is proportionate and accordingly justified in the light of the overall interest represented jointly by the interests served by refusal to disclose“. 

Whilst this decision opens the way to public bodies and Tribunals aggregating public interests under the Environmental Information Regulations 2004, they will need to do so very carefully if the information could not be withheld in reliance on one exemption considered in isolation. In particular, care must be taken to avoid any double-counting if there is any overlap in interests.

Rachel Kamm

CONSTRUCTION WORKER ‘BLACKLISTING’ DATABASE – NEW TRIBUNAL DECISION

Posted on | by Robin Hopkins

The Tribunal has this week given its decision in Ritchie v IC (EA/2010/0041). The case involved a “blacklist” which had been compiled and maintained by an organisation called the Consulting Association. The database consisted of the names and personal details of workers in the construction industry who had engaged in trade union or other activities in furtherance of employment rights. A number of major companies in the construction industry paid annual subscriptions and, as potential employers, were able to access individual records for a fee. The ICO investigated the matter, successfully prosecuted the proprietor of the Consulting Association and seized the database. It invited potentially affected workers to make subject access requests whereby they could receive information about them held in the database.

The General Secretary of the union UCATT subsequently requested from the ICO all files containing references to a number of named trade unions. This was one of the (relatively rare) cases in which the ICO was both the public authority and the regulator.

The ICO refused the request, relying on section 44 FOIA (disclosure prohibited under an enactment) in combination with section 59(1) DPA, which (to paraphrase and summarise) prohibits disclosure of information obtained by the Commissioner “under or for the purposes of the Information Acts” unless there is “lawful authority” for that disclosure. The Tribunal has upheld that refusal.

No commentary from me on this one, given my involvement in the case. I shall, however, point out that the decision covers the following issues: scope of the request; whether information is “publicly available”; the meaning of “lawful authority” under section 59(1) DPA; whether requests by unions are made with the “consent” of members; whether disclosure would be “necessary in the public interest”; personal data; Articles 9, 10 and 11 of the ECHR.

Robin Hopkins

DRAFT JUDGMENTS TO BE CIRCULATED WITH CAUTION: CRICKET UMPIRES CASE REMITTED TO TRIBUNAL

Posted on | by Robin Hopkins

The decision of the Upper Tribunal (UT Judge Wikeley) in IICUS v IC and BIS and Ray [2011] UKUT 205 (AAC) (available here: GIA 0384 2011-01) begins by observing that “the world of cricket is no stranger to the law courts”. It goes on to explain the controversy surrounding the creation of the International Institute of Cricket Umpiring and Scoring (IICUS) by individuals who had been expelled, barred or suspended from the Association of Cricket Umpires and Scorers (now known as the ECB Association of Cricket Officials). Mr Ray, a member of the latter body, raised concerns about IICUS, its status as an “Institute”, its finances and its company accounts. Companies House (falling under the Department for Business, Innovation and Skills for FOIA purposes) investigated the complaint and informed Mr Ray that it was satisfied that the information provided by IICUS was not misleading. He requested the evidence submitted by IICUS in response to his earlier complaint. Companies House refused, relying on sections 41 and 43 FOIA. The Commissioner agreed on section 41.

The Tribunal then considered the matter on the papers. IICUS had not been joined as a party. The Tribunal, however, circulated its draft judgment to the parties (other than the requester) – and also to IICUS, so as to allow it “to make any representations they wish and the Commissioner and DBIS to draw to our attention any factual errors or inappropriate disclosures”.

IICUS asked to be joined and submitted representations. The Tribunal joined it “for the purpose of making representations in relation to the draft decision”. It found for the requester, and ordered disclosure. IICUS’s appeal to the UT was supported by the Commissioner, given the unusual procedural history.

The UT has found that the Tribunal’s decision involved a breach of rule 32(1) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and of the principles of procedural fairness. That rule, when read with rule 1(3), requires the Tribunal to hold an oral hearing unless each party has consented to the matter being determined without a hearing and the Tribunal is satisfied that it can properly determine the issues without a hearing. Here, the UT found, IICUS had been joined (albeit after the paper hearing) and had not consented to the matter being determined without an oral hearing. On that procedural basis alone, its appeal was allowed and the matter is remitted for a second innings in the Tribunal.

The circulation of judgments in draft form is, of course, not uncommon. Those involved in litigation where such circulation is contemplated may wish to bear in mind UT Judge Wikeley’s counsel of caution (see paragraph 31):

“In this context it is important to take heed of the warnings of the superior courts as to the procedure to be adopted when draft decisions are issued.  As Smith L.J. observed in Egan v Motor Services (Bath) Ltd. [2007] EWCA Civ 1002, “circulation of a draft is not intended to provide counsel with an opportunity to re-argue the issues in the case” (at paragraph 50).  The same point was made by the House of Lords in Edwards v Environment Agency [2008] UKHL 22.  Furthermore, in Robinson v Bird (2004) The Times, January 20, May LJ specifically warned as follows:

“It scarcely needed saying that judges should not send draft judgments to the parties’ legal representatives in accordance with the practice statements if they themselves perceived a risk that they might want to change them materially before they handed them down.”

In May, I posted a summary of a Court of Appeal case – Kennedy v IC and Charity Commission [2011] EWCA Civ 367 – in which submissions following the circulation of the draft judgment had made all the difference. The submission there was that – because the draft judgment described the disputed statutory provision as ambiguous – questions of interpretation in accordance with the Human Rights Act 1998 needed to be considered. Such circumstances, it would seem, provide a legitimate “opportunity to re-argue the issues in the case”.

Robin Hopkins

GASKELL: COMMISSIONER CAN, IN EXCEPTIONAL CIRCUMSTANCES, DECLINE TO ORDER DISCLOSURE

Posted on | by Robin Hopkins

In my recent post on Sittampalam v IC and BBC (EA/2010/0141), I explained that the Tribunal took the view that the Commissioner does have a discretion to decline to order disclosure, even where information was incorrectly withheld at the time, due to subsequent developments such as legislative changes, inquiries or court proceedings and so on. In so doing, that Tribunal differed from the decision in Gaskell v IC (EA/2010/0090), where it was held that no such discretion existed.

The Upper Tribunal (UT Judge Wikeley) has this week allowed an appeal against the Gaskell decision, meaning that the Sittampalam position has now been confirmed as correct. The issue is put succinctly at paragraph 10 of UT decision GIA 3016 2010:

“The reasoning in the Commissioner’s Decision Notice can be summarized simply. Section 44(1)(a) of FOIA provides an absolute exemption where disclosure by the public authority holding it “is prohibited by or under any enactment”. Section 18(1) of CRCA [Commissioners for Revenue and Customs Act] 2005 provides that “Revenue and Customs officials may not disclose information which is held by the Revenue and Customs in connection with a function of the Revenue and Customs.” Section 18(1) did not apply to the Rent Service at the time that Mrs Gaskell made her original request. However, by the time of his Decision Notice, Rent Service staff had become HMRC officials. If the Commissioner were to order disclosure, those staff would be contravening section 18 of CRCA 2005.”

The First-Tier Tribunal found that the Commissioner has no discretion to decline to order disclosure in such circumstances (and that if he did have such a discretion, he exercised it incorrectly in this instance). In contrast, however, the UT concluded as follows (paragraph 31; my emphases):

“In conclusion, I agree with both counsel [11KBW’s Karen Steyn and Ben Hooper] that the requirement under section 50(4) that the decision notice should specify the steps which must be taken by the public authority does not amount to a mandatory obligation on the Commissioner to require steps to be taken to comply with the requirements of sections 1(1), 11 or 17 in every case, although that consequence will usually follow, save for exceptional cases such as the present one. As a matter of law the mandatory element of section 50(4) is that, if the Commissioner considers that the public authority ought to take any steps to comply with those statutory requirements, then he must specify them in the decision notice, along with the defined period within which they must be undertaken.”

The UT went on to decide that the Commissioner had exercised his discretion correctly in this case.

UT Judge Wikeley’s judgment also includes both a Jane Austenism and the first citation of the Information Law Reports (or Info LRs), launched by Justis and 11KBW this month: Office of Government Commerce v Information Commissioner [2008] EWHC 737 (Admin); [2010] QB 98; [2011] 1 Info LR 743.

Robin Hopkins

Launch of Information Law Reports

Posted on | by Rachel Kamm

 The Information Law Reports launched on 14 July 2011, with the following announcement on 11KBW’s website:

Leading chambers 11KBW and legal publisher Justis Publishing are collaborating in a first for both organisations: the creation of a new series of law reports available both in bound volumes from next week and on the established Justis platform from this morning.

Information law is ever more important, seeking to balance the “right to know” and the “right to be left alone” in an age of massive databases and global information flows. We all want to protect our own privacy; but we also want to understand how public authorities make decisions and spend our money. This new series will help professionals grapple with these issues.

Timothy Pitt-Payne QC, a barrister at 11KBW and one of the editors of the new reports, said: “There is a growing case-law, generated by the specialist Information Rights Tribunal and the higher courts. Navigating this material and quickly identifying the most important recent developments is increasingly challenging. The Information Law Reports seek to meet this need, bringing together all the most important cases in a single source. 11KBW are delighted to be working with Justis on this much-needed project.”

Masoud Gerami, Managing Director of Justis Publishing, said: “We have had a number of significant milestones in our 25-year history, mostly associated with innovation and developments which have changed legal information dissemination for the better. I am delighted that another milestone has been added to our list of achievements by producing the new series of Information Law Reports in association with 11KBW, the leaders in this increasingly important field. I believe that the complementary nature of the expertise from the partners in this project is the ideal requirement for any successful product or service, and we look forward to a continued relationship with 11KBW.”

He added: “This is also the first time that Justis Publishing has produced a product in hard copy, and we are very excited about the possibilities that the combination of hard copy and online versions will present.”

For further information, please call +44 (0)20 7267 8989 or email press@justis.com.

THE EUROPEAN COOKIE MONSTER

Posted on | by Rachel Kamm

Here’s an update to my post of 5 June about the ICO’s guidance on obtaining the consent of users before ‘cookies’ can be placed on machines. The European Data Protection Supervisor, Peter Hustinx, gave a public lecture on 7 July 2011 on the privacy implications of online behavioural advertising. This included discussion of ‘cookies’. He commented that browser providers have developed opt-out solutions, whereas the ideal is to have privacy-by-default unless individual preferences are set using a “privacy wizard”. The lecture also suggested that recent speeches made by the European Commission’s Vice President, Neelie Kroes, raise doubts about the Commission’s position on the e-Privacy Directive’s requirements; the Commission has expressed support for initiatives which Mr Hustinx considers are in fact non-compliant.