APPLICATION OF NATIONAL SECURITY EXEMPTION TO AIRPORT SECURITY INFORMATION

Posted on | by Anya Proops KC

As might be expected, FOIA contains a specific exemption designed to safeguard national security, see the exemption provided for under s. 24. In essence, the s. 24 exemption is engaged if the exemption ‘is required for the purposes of safeguarding national security’. Perhaps somewhat surprisingly, the section 24 exemption is a qualified exemption (see s. 2(3) FOIA). This means that, even if the exemption is required in respect of particular information to safeguard national security, the information may still be disclosable on an application of the public interest test provided for under s. 2 FOIA. In Kalman v IC & Department for Transport (EA/2009/0111), the Tribunal was for the first time called upon to consider the substantive application of s. 24 (i.e. how it applied to specific information – cf. Baker v IC & Ors EA/2006/0045, where the tribunal considered the application of the national security exemption in the context of the duty to confirm or deny whether the information was held). The Kalman case involved an application for disclosure of information relating to airport security arrangements. The DfT refused to disclose the information on the basis that there was a real risk that the information, if disclosed, would be exploited by terrorist organisations. The Commissioner largely rejected Mr Kalman’s complaint against the DfT’s decision. Mr Kalman appealed to the Tribunal. There were two issues at stake in the appeal. First, whether s. 24 was engaged in respect of the disputed information and, second, if it was engaged, whether the public interest balance nonetheless weighed in favour of disclosure.

During the course of the hearing, the DfT conceded that some of the disputed information could be disclosed, not least because it was already effectively the stuff of public knowledge. The Tribunal went on to hold that there was other information which ought to have been disclosed for much the same reason. With respect to the remainder of the information, the tribunal accepted that s. 24 was engaged and that the public interest weighed in favour of maintaining the exemption. Notably, the tribunal held that the nature of the risk posed by the disclosure was so serious in this case (i.e. potential significant loss of life due to terrorists exploiting weaknesses in the airport security system) that, even if the risk was relatively slight, there would have to be an extremely strong public interest in disclosure to avoid the information being lawfully withheld. In reaching this conclusion, the tribunal adopted a similar analysis to the one which it had previously adopted in PETA v IC & Oxford University (EA/2009/0076) (case involving the application of the health and safety exemption in a case involving risk of attack by animal extremists).

DATA PROTECTION IN EUROPE – JUDGMENT IN BAVARIAN BEER

Posted on | by Anya Proops KC

On 29 June 2010, the European Court of Justice handed down an important judgment on how provisions within EU law which permit access to documents held by EU institutions are to be applied where the documents contain third party personal data – European Commission & United Kingdom v Bavarian Lager (Case C-28/08 P). The case involved an application for disclosure of a document held by the European Commission which recorded discussions on the application of certain beer import restrictions within the UK. A number of individuals were identified by name in the document. The application for disclosure was made by Bavarian Lager under EU Regulation 1049/2001 (the Access Regulation). The Access Regulation is designed to facilitate public access to documents held by EU institutions with a view to increasing their transparency and accountability. Importantly, like FOIA, the Access Regulation is, on its face, motive-blind (i.e. it does not require the applicant to establish a legitimate reason for accessing the information). The Commission provided the requested document, save that it redacted the names of certain individuals identified in the document. The key issue which arose in the case was whether, in deciding whether to release the names of the individuals in question, the Commission had been entitled to take into account whether Bavarian Lager had established that it had legitimate interests in receiving this particular data.

The Court of First Instance (now ‘the General Court’) held that: (a) particularly having regard to the motive blind nature of the Access Regulation, the Commission had erred in taking into account Bavarian Lager’s interests in receiving the information and (b) the names should be disclosed. On appeal by the Commission, the ECJ overturned the CFI’s judgment. In summary, the ECJ reached the following conclusions on the appeal:

(1)   the CFI had erred because it had failed to have due regard to the way in which the Access Regulation effectively deferred to provisions contained in other EU legislation, particular Regulation 45/2001 which is specifically concerned with protecting individuals with regard to the processing of their personal data by EU institutions (“the DP Regulation”);

 

(2)   the DP Regulation itself required consideration of the question of whether the applicant had a legitimate interest in receiving the particular personal data;

 

(3)   accordingly, the Commission had not erred when it decided that Bavarian Lager had not established a legitimate interest in receiving the personal data contained in the documents;

 

(4)   the data had been lawfully withheld by the Commission.

11KBW’s Jason Coppel appeared on behalf of the United Kingdom.

PUBLIC SECTOR EARNINGS – MORE INFORMATION

Posted on | by Timothy Pitt-Payne KC

The Cabinet Office has now published details of quango employees earning more than £150,000.  The information has been added to the list-  published at the beginning of June – of the highest earning senior civil servants, and the consolidated list is available here.  According to the Cabinet Office website, information has been withheld for 24 individuals:  there is no explanation as to whether this was simply because the individuals objected, or for other reasons. 

Further information about special advisers was published on 10th June, including a list of those earning more than £58,200 a year (sadly,  Tamzin Lightwater does not appear).

WATCH THIS SPACE

Posted on | by Timothy Pitt-Payne KC

The Coalition’s Programme for Government contains a great deal that is of interest to information lawyers: see here.  But when and how will any of this be given legislative effect?

The Queen’s Speech was delivered on 25th May 2010. The website of the Prime Minister’s office gives a list of the proposed Bills , with further information about each one. Three of the proposed Bills have potential implications for information law.

(i) The Public Bodies (Reform) Bill will enhance the transparency and accountability of quangos: though it is not clear as yet whether enhanced information access rights will play a role in this.

(ii) The Decentralisation and Localism Bill will (among other matters) require public bodies to publish online the job titles of every member of staff and the salaries and expenses of senior officials.

(iii) The Freedom (Great Repeal) Bill is intended to cover a wide range of subjects, to be announced in due course: it may include an extension to the scope of FOIA, and also various provisions in relation privacy (e.g. relating to CCTV cameras, and the DNA database).

Of these Bills, it is the third that is likely to be much the most significant. 

UNFINISHED BUSINESS

Posted on | by Timothy Pitt-Payne KC

Various changes were made to FOIA by the Constitutional Reform and Governance Act 2010, which was passed during the “wash up” at the end of the last Parliament.  See section 46 of and Schedule 7 to the Act. In particular:

• The exemption in section 37(1) of FOIA (relating to communications with the Sovereign and with other members of the Royal Family) was extended. In relation to the Sovereign and the heir to the Throne, the exemption was made absolute .

• The period at which a record becomes a “historical record” was altered (this is often referred to as the “30 year rule”). Under FOIA as originally enacted, a record became a historical record at the end of 30 years beginning with the year following that in which it was created: see FOIA section 62(1). Information contained in a historical record could be exempt by virtue of sections 28, 30(1), 32, 33, 35, 36, 37(1)(a), 42 or 43: see FOIA section 63(1). Under the 2010 Act the period of 30 years is reduced to 20 years . Provision is made for a 10 year transitional period in introducing this change . However, in respect of section 36 (so far as it relates to certain information concerning Northern Ireland), section 28, or section 43, the time after which these exemptions can no longer be relied upon will remain 30 years not 20 years .

The reforms to the 30 year rule followed the Dacre Review, published on 29th January 2009 (see our earlier post here).

As yet it remains unclear when, or whether, these amendments will be brought into force.  This is a significant piece of unfinished business left over from the last Parliament.

LATE EXEMPTIONS – THE LATEST TWIST

Posted on | by Anya Proops KC

The question of whether a public authority can seek to rely on exemptions at a late stage in proceedings is one which arises in many tribunal appeals. Certainly, it is not at all unusual for a public authority to argue before the tribunal that it now wants to rely on exemptions which have never previously been identified. Historically, the Tribunal has taken the view that it has a discretion to refuse late reliance on exemptions and, in practice, it has tended to refuse late reliance save where there are exceptional circumstances (see further earlier paper on this issue which you can find here and see also an earlier post here). However, one tribunal has very recently taken a rather different view of the matter. In particular in Home Office v IC (EA/2010/0011), the tribunal held that in fact it had no discretion to refuse late reliance, particularly in view of the way in which the exemptions had been provided for under FOIA. This departure from tribunal orthodoxy is no doubt going result in a significant amount of debate, not least because there are now competing tribunal decisions on the issue of late exemptions. It may be that the matter will be resolved as and when the appeal in the case of DEFRA v IC & Birkett is heard in the Upper Tribunal. However, this remains to be seen. So watch this space.