It is a fundamental rule of our justice system that it should be administered in public (Attorney General v Leveller Magazine Ltd [1979] AC 440). In the criminal justice system this rule generally operates so as to require individuals who are charged with an offence to give their home address in open court. But what is the position if the accused claim that confirming their address in open court will expose them and their family to attack? Are they entitled to demand that their address be given in camera? This is an issue which was recently posed in the case of R(Harper) & Anor v Aldershot Magistrates Court & Anor [2010] EWHC 1319 Admin. In this case, two senior police officers who had been charged with the offence of misconduct in public office sought to judicially review a ruling of the Magistrates Court that they must each confirm their address in open court. The officers, who had been suspended from duty, claimed that the ruling was unlawful because there was a real and genuine fear of reprisal and the safety of the officers and their family was at risk. The Court rejected the claim on the basis that any fears which the officers may have had were unreasonable, particularly because publication of their address would not in fact enhance any risk that they faced (notably, the addresses could simply have been accessed through the electoral roll). In reaching the conclusion that the ruling was lawful, the Court took into account not least Lord Diplock’s judgment in Belfast Telegraph Newspaper Limited’s Application [1997] NI QBD 309. In that case, Lord Diplock held that information may be withheld in criminal proceedings on the basis that this was necessary to serve the public interest in the administration of justice but that it could not be withheld simply in the interest of protecting ‘the private welfare of those caught up in that administration’ (at page 314F). The Court in Harper noted that there might be circumstances in which the individual’s well-being may overlap with the administration of justice such that the information can be withheld in the public interest. However, these were not the facts of the instant case. Notably, there is no analysis in the judgment of the application of Article 8 ECHR. Nor further is there any explicit consideration of the rights of the families of the accused. Query what role these considerations would have played if the facts of Harper had been less clear-cut.
INFORMATION LAW AND THE NEW POLITICS
I gave a paper at the last 11KBW information law seminar, on the new Government’s plans for information law. An updated version of the paper is now available here. It takes account of the Coalition’s programme, published on 20th May.
The new Government is putting forward a number of proposals for disclosing public sector information on a regular and routine basis, rather than on request: for more detail see this posting on the official website for the Prime Minister’s office. On 4th June 2010 the Government disclosed a considerable amount of information from the COINS database (standing for Combined Online Information System) relating to public spending in 2009/10. In total there are thought to be over 3 million separate items of information in the new release. See here for the raw data; and see here for a tool designed by the Guardian, intended to help navigate the newly released information. No doubt the COINS release will lead to a number of follow-up FOIA requests relating to specific items of expenditure; it will be interesting to see how those requests are handled by Government departments.
LATEST TRIBUNAL DECISION ON THE ‘PERSONAL DATA’ AND ‘COST OF COMPLIANCE’ EXEMPTIONS
The Tribunal’s first decision in the case of Alasdair Roberts v IC and Department for Business, Innovation & Skills (EA/2009/0035) established the controversial principle that the s. 36 exemption only applies where the opinion of the ‘qualified person’ was reached by the time the request was responded to: see Anya Proops’ post on that decision. DBIS was therefore not entitled to rely on s. 36 in refusing Mr Roberts’ request. Its refusal was, however, upheld in the Tribunal’s second decision in this case, which provides the latest word on the s. 40 ‘personal data’ exemption.
In particular, this case concerned the first data protection principle (processing must be fair and lawful and meet a Schedule 2 condition) and paragraph 6(1) of Schedule 2 to the DPA 1998. That condition is that “the processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject”.
Two notable points about the application of this principle emerge.
First – on whether the processing would be fair – senior civil servants (Grade 5 or above) do not have a reasonable expectation of anonymity in respect of any document, no matter how sensitive. More junior civil servants might have reasonable expectations: this will be less cogent where the job is “public-facing” (such as a Job Centre manager), and more cogent where the information is controversial (such as information about animal testing).
Secondly – on legitimate interests of ‘parties to whom the data are disclosed’ – the Tribunal found that the requester’s strong individual interest (for research purposes) was not sufficient to override the fact that this information was of very little interest to the world at large (to whom disclosure is, in the eyes of FOIA, to be made).
This decision also offers further guidance on what can be included within the ‘cost of compliance’ for s. 12 purposes. The Tribunal accepted the established principle that costs of redacting names are to be excluded, but qualified this as follows: “that may be appropriate where the task is simply to locate individuals’ names and redact them… but where, as here, the process requires a judgment to be made, document by document, balancing the various criteria we have identified, then we believe that much, if not all, of the process should be regarded as retrieving from each document the information which requires to be disclosed and therefore properly included in the cost estimate”.
PLANNING DECISIONS & HISTORIC BUILDINGS: PUBLIC SCRUTINY TRUMPS COMMERCIAL CONFIDENTIALITY
Local planning authorities will wish to take careful note of the recent Tribunal decision in Bristol City Council v ICO and Portland and Brunswick Squares Association (EA/2010/0012), which will please residents’ associations, conservation groups and others wishing to scrutinise planning decisions about historic buildings.
PPG 15 (a Planning Policy Guidance document) requires that, where a building is listed or makes a positive contribution to a conservation area, it should only be demolished if there is “clear and convincing evidence that all reasonable efforts have been made to sustain existing uses or find viable new uses and these efforts have failed”. Bristol CC granted permission to demolish a listed building in its ownership, relying for PPG 15 purposes on the developer’s viability reports which apparently showed alternative uses of the building to be commercially unviable. It subsequently refused to disclose those reports, relying on the exemption at regulation 12(5)(e) of the EIR 2004, which applies to the extent that disclosure “would adversely affect … the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest”.
The requesters argued that a reasonable person would not regard these reports as confidential because the planning process is one that assumes and requires public involvement. The Tribunal disagreed, and found that regulation 12(5)(e) was engaged.
It went on to find, however, that the public interest favoured disclosure, given the decisiveness of these reports in a matter which had aroused substantial local controversy. The Tribunal considered it proper to take into account the “general mismatch between the resources of developers and residents’ groups” and noted that “so far as PPG 15 viability reports are concerned, it seems to us that developers will not be able to refuse to supply them if they want to obtain the relevant consent but that, given their hypothetical nature, it may be possible for them to construct such reports in a way that does not reveal sensitive commercial information specific to themselves”.
The Tribunal stressed that it was not setting down a general precedent concerning planning decisions, and that absent PPG 15 (or, presumably, its successor guidance PPS 5) or council ownership of the building in question, its decision might have been different. Where those two factors are present however, public accountability trumps commercial confidentiality.
NEW POLITICS, OR SAME OLD STORY?
On 19th May I gave a paper at 11KBW’s Information Law seminar, entitled “Information Law in the new Parliament”. This was a discussion of the new coalition government’s proposals relating to information law. On the following day, “The Coalition: our programme for government” was published, giving a much fuller account of the new Government’s programme.
I am revising my paper to take account of the new document. I will be posting the revised paper here, in the course of next week.
11KBW INFORMATION LAW SEMINAR – FOIA UPDATE PAPER
Many thanks to all those who attended 11KBW’s Information Seminar last night. For those of you who were unable to attend, you can find a copy of my paper on ‘FOIA – Recent Developments’ here.
The paper touches on the following themes:
· the issue of aggregating public interest considerations where multiple exemptions are in play (IC v Office of Communications);
· protecting confidential and commercially sensitive information (South Gloucestershire v IC; University of Central Lancashire v IC and Higher Education & Funding Commission for England v IC);
· how the tribunal approaches cases under FOIA where the health and safety of the public may be put at risk as a result of disclosure (People for Ethical Treatment of Animals v IC & Oxford University and Kalman v IC & Department for Transport (forthcoming));
· the timing of obtaining the opinion of the qualified person for the purposes of s. 36 FOIA (the prejudice to public affairs exemption) (Roberts v IC & DBIS and University of Central Lancashire v IC);
· the application of the personal data exemption under s. 40 FOIA, particularly in respect of statistical data (Department of Health v IC & Pro-Life Alliance and Magherafelt DC v IC);
· late reliance on exemptions (CPS v IC and DEFRA v IC & Birkett);
· allowing a complainant’s representative to access closed material and participate in the closed session (PETA v IC & Oxford University and DEFRA v IC & Birkett); and
· access to property search records (East Riding v IC & York Place and OneSearch Direct v City of York Council).
It also includes a section setting out some practical tips for those involved in information tribunal litigation.
Tim Pitt-Payne QC also presented at the seminar. His paper was on the subject of ‘Information Law in the New Parliament’. An updated version of Tim’s paper, reflecting political developments being reported today, will appear on the blog within the next week.