The Administrative Court’s (as yet unreported) judgment in R (on the application of N) v a Local Authority in December 2010 saw the quashing of a decision to withdraw a licence to be in contact with children. The case concerned the familiar public law principles of judicial review and human rights, but from an information law perspective, the point of interests is this: in reaching its decision to withdraw the individual’s licence, the local authority compiled information on that individual, including the allegations made against him (namely, that he was a paedophile with a history of sexual offences) as well as its meetings with the individual. Ockleton J not only overturned the local authority’s decision, but also directed it to keep a copy of the judgment with its records relating to the matter, so that its records on this individual were full and accurate. Otherwise, he ruled, the local authority’s file on this individual was potentially misleading to anyone subsequently accessing it.
CREATION VS MERE SWEAT: FOOTBALL FIXTURE LISTS AS LEGALLY PROTECTED DATABASES?
In Football Dataco & Others v Yahoo! UK Ltd & Others, the Court of Appeal has referred to the ECJ questions on the interpretation of Directive 96/9 on the Legal Protection of Databases. Its principle question was: what is meant by “databases which, by reason of the selection or arrangement of their contents constitute the author’s own intellectual creation”?
The databases in question comprised football fixture lists in the English and Scottish leagues. The defendant used these without paying the claimant (an organiser of football fixtures). The claimant contended that, by arrangement of its contents, the fixture list became its “own intellectual creation”, thereby attracting the Directive’s protection. The defendant’s stance was that these lists did not attract such protection, because they were merely the fruits of “sweat of the brow” – in other words, compilation, but not creation.
The Court of Appeal observed that the ECJ’s answers to its questions had wide implications for the legal protection not only of sports fixture lists, but possibly also of TV listings, which required comparable energy and skill to compile.
Clear and Present Danger?
A Bill has recently been introduced in both Houses of the US Congress, in response to the Wikileaks disclosures, to amend the US Espionage Act 1917 to make it a criminal offence for any person knowingly and wilfully to disseminate, “in any manner prejudicial to the safety or interest of the United States”, any classified information “concerning the human intelligence activities of the United States”. This proposal would appear to be constitutional with respect to US Government employees who leak such material to those who are unauthorised to receive it. But what about the constitutionality of criminalising anyone who publishes the information after it has been leaked, especially given that the proposed new offence is not, at any rate expressly, limited to situations in which the spread of the classified information poses a “clear and present danger” of grave national harm?
The “clear and present danger” standard has been the governing principle under the First Amendment to the US Constitution since Supreme Court Justice Oliver Wendell Holmes Opinion in Schenk v United States in 1919. The principle was stated by Supreme Court Justice Louis D. Brandeis in Whitney v California in 1927. The founding fathers of the US “did not exalt order at the cost of liberty”, wrote Brandeis. On the contrary, they understood that “only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such … is the command of the Constitution. It is, therefore, always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it”.
Writing in the New York Times on 3 January 2011, Geoffrey R. Stone, Professor of Law at the University of Chicago, and Chairman of the Board of the American Constitution Society, explains that the First Amendment does not compel Government transparency. It leaves the Government autonomy to protect its own secrets. It does not accord anyone the right to have the Government disclose information about its actions or policies. It cedes to the Government authority to restrict the speech of its own employees. What it does not do, however, is allow the Government to suppress the free speech of others when it has failed to keep its own secrets.
Professor Stone gives a number of reasons why it is right to give the Government limited scope for penalising the circulation of unlawfully leaked information.
First, the mere fact that such information might “prejudice the interests of the United States” does not mean that that harm outweighs the benefit of publication. In many circumstances, it may be extremely valuable to public understanding. Consider, for example, classified information about the absence of weapons of mass destruction in Iraq. Second, the reasons that Government officials want secrecy are many and varied. They range from the compelling to the illegitimate. It is tempting for Government officials to overstate the need for secrecy, especially in times of national anxiety. Third, a central principle of the First Amendment is that the suppression of free speech must be the Government’s last rather than its first resort in addressing a problem. The most obvious way for the Government to prevent the danger posed by the circulation of classified material is by ensuring that information that should be kept secret is not leaked in the first place. The Supreme Court in Bartnicki v Vopper in 2001 held that when an individual receives information “from a source who obtained it unlawfully,” that individual may not be punished for publicly disseminating the information “absent a need … of the highest order”. The Supreme Court explained that if the sanctions now attached to the underlying criminal act do not provide sufficient deterrence, then perhaps they should be made more severe, but that “it would be quite remarkable to hold” that an individual can constitutionally be punished merely for publishing information because the Government failed to “deter conduct by a non-law-abiding third party”. Professor Stone concludes that if the Government is granted too much power to punish those who disseminate information, then one risks too great a sacrifice of public deliberation; if, on the other hand, the Government is granted too little power to control confidentiality at the source, then one risks too great a sacrifice of secrecy. The answer is to reconcile the values of secrecy and accountability by guaranteeing both a strong authority for the Government to prohibit leaks and an expansive right for others to disseminate information to the public.
James Goudie QC
“MANIFESTLY UNREASONABLE” REQUESTS UNDER THE EIR: RELEVANCE OF COST OF COMPLIANCE AND DUTY TO ADVISE AND ASSIST
Little v ICO and Welsh Assembly Government (EA/2010/0072) is the latest application of the principles in DBERR v IC and Platform (EA/2008/0096) concerning “manifestly unreasonable” requests under regulation 12(4)(b) EIR. In particular, it deals with a public authority’s reliance on that exemption based on the excessive time which would be required to comply with the request.
The Tribunal confirmed that manifest unreasonableness – whilst not a condemnatory term – did imply a higher threshold than mere unreasonableness. A certain obviousness was required. Beyond that, no more precise definition could be given, and terms such as “self-evidently” were not applicable. The cost of compliance is relevant, but only as one factor among many. A request may be manifestly unreasonable if the cost of compliance is disproportionate the importance of the issue, or if compliance would divert resources so as significantly to disrupt the public authority’s normal activities. These, however, are only examples, and each case must be decided on its own facts. On the facts of this case (which concerned information on the disposal of land owned by Forestry Commission Wales for the purposes of wind farm development) the requests were manifestly unreasonable.
Two points of general interest emerge.
First, the “cost of compliance” provision under section 12 FOIA may not be used as a yardstick for determining manifest unreasonableness under regulation 12(4) EIR. The provisions are entirely separate, and one offers no guidance on the other.
The second is that compliance with the duty to advise and assist under regulation 9 EIR is a precondition for reliance on regulation 12(4)(c) (the exemption applicable where a request is too general) – but not for reliance on manifest unreasonableness under regulation 12(4)(b). This does not mean, however, that the duty to advise and assist is irrelevant to regulation 12(4)(b). The Tribunal was clear that “a public authority should expect, in the appropriate case, to have to engage with the request, and the requester, to consider whether a more manageable and reasonable formulation of the request can be achieved, before refusing a request for being manifestly unreasonable”.
The Tribunal also observed that the preparation of a 20-page list of files which might contain the requested information was not required under regulation 9 in this case – but once such a list has been prepared, the failure to provide the requester with a copy might cast a public authority’s efforts under regulation 9 in an unfavourable light.
“PRACTICE DIRECTION FOR THE SEALING OF ROYAL WILLS” NOT HELD BY MOJ
Brown v Information Commissioner and the Ministry of Justice (EA/2010/0119) concerned a request for a document which had been referred to in judgments from the High Court and Court of Appeal concerning the appellant’s unsuccessful application to view the will of the late Princess Margaret. The document had been referred to as a “practice direction for the sealing of royal wills”. The request for this document under FOIA was initially made to the Master of the Rolls, and was thereafter handled by the Ministry of Justice (which has responsibility for Her Majesty’s Courts Service).
The Tribunal agreed with the Information Commissioner and the MOJ that an adequate search had been conducted and that, on the balance of probabilities, the requested document was not held at the time of the request. It also clarified this statutory curiosity relied on by the appellant: the Master of the Rolls is not a listed public authority, but he is – under section 7 of the Public Records Act 1958 – responsible for “the records of the Chancery of England”, “including those created after the commencement of this Act”. The Tribunal has, however, explained that this is a matter of “antiquarian interest” concerning records of the courts of Chancery prior to the reorganisation of the courts in the 19th century. Requests under FOIA can, therefore, not be made to the Master of the Rolls.
DUCHY OF LANCASTER NOT A PUBLIC AUTHORITY
The Queen is the Duke of Lancaster. Since the fourteenth century, the Duke of Lancaster has always been the reigning monarch. The Chancellor of the Duchy of Lancaster is a member of the Cabinet. He administers bona vacantia within and makes a number of official appointments for the Duchy.
The Duchy is not, however, a public authority for the purposes of the EIR. So held the Tribunal in Cross v ICO (EA/2010/0101), a decision which is part history lesson, part legal judgment.
The history lesson in brief: the Duchy was created in 1351 from lands which had been seized by Henry III in 1265. By a charter of 1399, Henry IV ensured the separation of the Duchy as his hereditary family estate from those of the Crown. The Duchy of Lancaster Case (1561) 1 Plowd. 212 confirmed that the Duchy is an estate inherited by the sovereign in his or her private capacity, rather than qua head of state.
The legal judgment in brief: the Tribunal found that the Duchy is not a government department, a publicly-owned company or a body that carries out functions of public administration (or indeed public functions at all). It confirmed that, in this legislative context, “the Crown” means the central executive arm of government. It accepted – but emphasised that it was not confirming – that the Tribunal has jurisdiction over challenges to the Commissioner’s finding that a body is not a public authority. As to “public administration”, the Tribunal applied Port of London and Network Rail – but promulgated its decision before the Upper Tribunal’s recent decision in Smartsource (on which, see Anya Proops’ post here).
The Tribunal will hear a similar case concerning the Duchy of Cornwall shortly.