DUCHY OF LANCASTER NOT A PUBLIC AUTHORITY

Posted on | by Robin Hopkins

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.

CONFIDENTIAL COMMERCIAL INFORMATION AND HUMAN RIGHTS – NEW TRIBUNAL DECISION

Posted on | by Anya Proops KC

A question which is frequently posed under both FOIA and the EIR is whether and to what extent confidential, commercial information can lawfully be withheld by a public authority. The recent decision of the First Tier Tribunal in the case of Staffordshire County Council v IC & Silbelco [2010] UKFTT 573 (GRC), (EA/2010/0015) embodies a number of important principles which should be considered whenever this question is being posed.

In Staffordshire, a request had been made for disclosure of particular commercial information consisting of the sales figures and reserve figures which a particular quarry operator (Sibelco) had generated in respect of the minerals which it quarried. The information had been provided by Sibelco to the local authority under a voluntary scheme. The scheme had been set up with a view to assisting the authority in discharging its statutory obligations as a mineral planning authority. Sibelco had provided the information to the authority on the express basis that it was to be treated in strictest confidence. Following a request for disclosure of the information, the authority refused to disclose the information on the basis that it was exempt under s. 41 FOIA (the confidential information exemption). During the complaints process before the Commissioner, the authority accepted that, in view of the environmental nature of the information, the applicable access regime was the EIR, rather than FOIA. However, it went on to argue that the information was still exempt under r. 12(5)(e) (commercial/confidential information exception) or 12(5)(f) (exception in respect of information provided in confidence) EIR. The Commissioner accepted that both exceptions were engaged in respect of the disputed information. However, he concluded that, on an application of the public interest test, the public interest weighed in favour of the information being disclosed. The authority appealed the Commissioner’s decision to the First Tier Tribunal. The Tribunal held that the Commissioner had erred as the public interest balance provided for under r. 12(1)(b) EIR  weighed in favour of the information being withheld.

Importantly, in analysing the application of the public interest test the Tribunal took into account the recent Court of Appeal judgment in Veolia v Nottinghamshire CC [2010] EWCA 1214. In that case, which was concerned with the access to confidential, commercial information under s. 15 of the  Audit Commission Act 1998, Rix LJ concluded that: (a) he could see no reason why ‘valuable commercial confidential information’ could not amount to a ‘possession’ for the purposes of Article 1 of Protocol 1 of the European Convention of Human Rights (A1/P1) (b) in the circumstances, unrestricted disclosure of such information would amount to an interference with the A1/P1 right to possession enjoyed by the person whose information it was; and (c) such interference would have to be justified if it were not to be unlawful under the ECHR (see §§120-122). In Staffordshire, the Tribunal relied upon Rix LJ’s reasoning to arrive at the following conclusions on the application of the EIR (and FOIA) to confidential, commercial information (§151):

  • ‘The disclosure of confidential information by a public body such as the Appellant engages the ECHR rights of the holder of the confidence;

 

  • A statutory right for the public to have access to any information must have an exception read into it to exempt the disclosure of confidential information in order to give effect to those ECHR rights;

 

  • The presumption in favour of disclosure of all environmental information held by public bodies in Regulation 12(2) EIR 2004 must now be read subject to an exception in the case of any such information which is held by the public body subject to a legal duty of confidentiality;

 

  • Where environmental information is held by a public body which is subject to a legal duty of confidentiality there is recognised to be a “strong public interest” in the maintenance of valuable commercial confidential information;

 

  • Arguments can be advanced on the individual circumstances of the case to seek to justify overriding the duty of confidence for particular pieces of information.’

The Tribunal was of the view that the facts of the case were such that there was no justification for overriding the duty of confidence owed to Sibelco in respect of the disputed information.

In light of the Tribunal’s analysis of the implications of Veolia, it is to be expected that human rights arguments will now commonly feature in any appeal involving an application of the EIR or FOIA to confidential, commercial information.

Infringement by Use on Website

Posted on | by James Goudie KC

MGN publishes the Daily Mirror and other newspapers.  Mr Grisbrook is a freelance photographer.  Between 1981 and 1997 he supplied MGN with a large number of photographs for publication by MGN in their daily newspapers and storage by them. He retained the copyright.  He was paid for each publication.  In 1997 he terminated MGN’s licence to use the photographs.  MGN later created three websites that allowed the public to view and buy part or whole of back copies of their newspapers.  Some of these include Mr Grisbrook’s photographs. He claimed that this infringed his copyright.   In MGN v Grisbrook [2010] EWCA Civ 1399 the Court of Appeal agreed.   The dispute related to the commercial exploitation of the MGN database by means of the three websites.  It was not suggested that such exploitation was within the contemplation of the parties at the various times between 1981 and 1997 when the relevant photographs were submitted by Mr Grisbrook to MGN.  Nor was it suggested that any second publication of one of Mr Grisbrook’s photographs would not generate a liability to Mr Grisbrook for a further fee.  What was suggested was that the website is an alternative means of delivery of the original newspaper: because there was no limit on the numbers which might have been published originally the operation of the website should be regarded as only further delivery of the original, licensed, paper.  The Court of Appeal agreed that the operation of the website could be regarded as further delivery of the original, but not that it could only be so regarded.  A website operates over a global area, its coverage is greatly in excess of anything MGN could have reached with hard copy newspapers.  It enables a member of the public to read it before deciding whether he wants a hard copy and the production of hard copies by the public far in excess of anything MGN could have produced.  The extent of the market and the costs incurred in reaching it are quite different to those of the hard copy newspapers of the past.  The suggestion that an intention might be imputed to Mr Grisbrook and MGN from their conduct in relation to Mr Grisbrook’s photographs in the period 1981 to 1997 that MGN should be entitled without further charge to exploit the copyright of Mr Grisbrook in his photographs by inclusion on their websites was unacceptable.  Newspapers are essentially ephemeral and, save for the enthusiastic collector, retain no long lasting status: the parties will have intended that they would be treated as daily papers are generally treated, that is to say, read and replaced with the following day’s edition.  To incorporate the pictures into the website was to provide a permanent and marketable record easily available world-wide which could well reduce the value of the further use by Mr Grisbrook of the photographs over which it was common ground he possessed the copyright.  This is why this was not just a question of degree but of kind.   Copyright in the compilation does not affect the rights of the owner of copyright in its parts unless he licenses its further publication.  The existence of such overlapping copyrights demonstrates the need for the compiler to obtain sufficient licences from his contributors.

James Goudie QC

WISE MEN, ANGELS AND SHEPHERDS

Posted on | by Rachel Kamm

The Information Commissioner has produced a Good Practice Note on the taking of photographs in schools. The ICO press notice gives a seasonal example: “Having a child perform at a school play or a festive concert is a very proud moment for parents and is understandably a memory that many want to capture on camera. It is disappointing to hear that the myth that such photos are forbidden by the Data Protection Act still prevails in some schools. A common sense approach is needed – clearly, photographs simply taken for a family album are exempt from data protection laws. Armed with our guidance, parents should feel free to snap away this Christmas and stand ready to challenge any schools or councils that say ‘Bah, Humbug’ to a bit of festive fun.” The guidance states that the Data Protection Act is unlikely to apply in most situations where photographs are taken by parents in schools, although it does apply when photographs of children are taken for official use by a school or college (such as for issuing identification passes). The ICO advises that in the other small number of instances where the Data Protection Act 1998 does apply, it will usually be sufficient for the photographer to obtain permission from the parent or individual to take a photograph. The guidance is available here: https://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/taking_photos.pdf.

 This post is also available on 11KBW’s education law blog: https://www.education11kbw.com/.

No names

Posted on | by James Goudie KC

In Wild v IC and Chief Constable of Hampshire Constabulary (EA/2010/0132) the Appellant was concerned as to whether the provisions of the Hunting Act 2004 were being complied with in the Isle of Wight and how these provisions were being enforced by the Hampshire Police.  She requested from the Chief Constable dates of pre-hunt meetings in last 5 years and names of officers attending pre-hunt meetings with Isle of Wight Hunt, such meetings being meetings between the organisers of hunts and the police officers responsible for supervising hunts (“Hunt Liaison Officers”).  The Police responded, providing dates, but refusing to disclose the names of the officers in attendance. 

The IC considered the application of S40(2) of FOIA to the case.  He concluded that the names of officers attending the meeting would be personal data and therefore in considering the potential disclosure it was necessary to consider whether it would be in accordance with the data protection principles embodied in the DPA.  He concluded that the disclosure would result in a breach of the first such principle that data should be processed fairly and lawfully.  He accepted that the disclosure may lead to the harassment of the officers identified and consequently the disclosure would be unfair to those officers. 

The Tribunal rejected the appeal and upheld the IC’s decision.  The IC had correctly struck the balance between the Appellant’s legitimate interest in disclosure and the prejudice to Hunt Liaison Officers disclosure of whose identity would put them at risk of harassment.

James Goudie QC

No duty to surf the net

Posted on | by James Goudie KC

In Byrne v DPP (2010) 1 EHC 382 the Irish High Court held that it was not part of the function of the DPP to surf the internet in order to find and deal with any information on an accused facing a criminal trial. The material on the applicant did not suggest he was guilty of the crime with which he was charged and there was no risk of an unfair trial.  His application that the DPP should seek out and have removed information on him published on the internet was refused. 

The applicant is a former Securicor employee, facing charges in connection with the extortion of money from a Securicor employee through the kidnapping of his family in March 2005. In April 2009, a jury was empanelled to try the applicant along with others.  There was a lot of media coverage of the crime and the subsequent trial.  In May, the trial judge had his attention drawn to material on newspaper websites relating to the bail hearings concerning some of the accused men, and he ordered this material to be removed.  However, the Judge said that it was not the duty of the DPP to sweep the internet and engage in correspondence with local and foreign internet service providers with a view to cleansing cyberspace of any potential reference to an accused person.  Judges should warn jurors that they should not surf the internet in relation to any participant in a case.

James Goudie QC