The Scotsman reports that Moray Council has become the first in Scotland to put every FoI request it receives, and the responses, on its website. Private details of the requester are witheld. The requests are placed into groups, such as individuals, media, government researchers, etc. This will enable the public to see where requests are coming from, what sort of information is being asked for, what level of detail can be provided, and the level of investigation required by council staff to produce the information.” Headline perhaps : ” Tartan Transparency
Protecting the Anonymity of Parties – EAT Supplements Its Own Rules of Procedure
On 5 March 2010, the Employment Appeal Tribunal (President Underhill presiding) gave a judgment on the question of whether it had powers to protect the anonymity of a party in a case involving allegations of sexual offences – A v B (UKEAT/0206/09/SM). The background to the judgment was that a claimant had been granted permanent anonymity by the Employment Tribunal under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch.1 para.49. The anonymity order had been made in circumstances where the claimant, who was claiming unfair dismissal, had been dismissed in response to a disclosure by police that he had been involved in paedophile activity in Cambodia and was believed to represent a risk to children. The Claimant had in fact been acquitted in the Cambodian courts and there was no reason to believe he faced prosecution in the UK. On appeal against the tribunal’s judgment to the EAT, the question arose as to whether the EAT had power to maintain the anonymisation when dealing with the appeal. This was a difficult question to resolve because, on their face, the EAT Rules 1993 read together with the Employment Tribunals Act 1996 did not provide for such a power. In a judgment which reflects the overriding importance of human rights considerations, the EAT held that it did have such a power. In reaching this conclusion, the EAT took into account: (a) that the loss of the claimant’s anonymity would involve a serious breach of his convention rights, particularly the Article 8 right to privacy; (b) that, on the facts of the case, the need to protect the claimant’s privacy under Article 8 outweighed the imperative towards freedom of expression embodied in Article 10 of the Convention; and (c) that, in the circumstances, s. 6 of the Human Rights Act 1998 required the EAT to interpret its powers so as to include a power to protect the claimant’s anonymity.
In the course of its judgment, the EAT considered the very recent judgment of the Supreme Court in HM Treasury v Ahmed [2010] UKSC 1; [2010] 2 WLR 325. In that case, the Supreme Court held that the old common law rule that a party forfeited his right to privacy if he chose to bring proceedings (subject to certain limited statutory exceptions) required modification in the light of the Convention. It concluded that, in a case where full publication of the proceedings would have an impact on the Article 8 rights of a party, the court will have to conduct a balancing exercise between that right and the right to freedom of expression under Article 10 (see per Lord Roger, para. 43). This is precisely the balance which the EAT sought to strike in the Av B case.
The New Information Tribunal – Recent Article
Here’s a recent article I wrote for the Local Government Lawyer on the new Information Rights Tribunal: The Right Stuff.
Hearing Closed evidence in Civil Claims – Al Rawi in the Court of Appeal
Next week, the Court of Appeal will hear an appeal by Bisher Al Rawi and other former Guantanamo detainees against Silber J’s decision that the court does have the power, in the context of civil claims for damages, to hear evidence in the absence of the claimant and the public – see Al Rawi v Security Services & Ors and see also my earlier post on Silber J’s judgment. If the Court of Appeal upholds the decision, the High Court will determine at a future hearing whether to adopt a closed process in this case. Karen Steyn appears for the Respondents.
“When American and European Ideas of Privacy collide.”
On 26 February 2010 the New York Times had a dramatic headline : ” When American and European Ideas of Privacy collide.” The article, by the respected collumnist Adam Liptak, arose out of the ruling from an Italian Court that Google executives had violated Italian privacy law by allowing a user to post a video showing an autistic boy being bullied. The article states that the ruling calls attention to the “profound European commitment to privacy, one that threatens the American conception of free expression and could restrict the flow of information on the Internet to everyone.2 The ruling balanced ECHR Article 8 rights against free speech and ruled in favour of the former. Given the biorderless quality of the Internet, that balance has the potential to affect Nations that prefer to “tilt towards the values” protected by the First Amendment to the US Constitution (whose “distant cousin” is Article 10 of the ECHR), and makes Europe the “effective sovereign of global privacy law”. The word “privacy” does not appear in the US Constitution. The Italian prosecution would have been “unimaginable” in the US. The article concludes : “Britain is only slowly moving towards the Continental model.”
FSA’S POWERS TO REQUIRE PRODUCTION OF DOCUMENTS – NEW COURT OF APPEAL JUDGMENT
The Court of Appeal has today handed down an important decision on the nature and scope of the FSA’s powers to require production of documents under the Financial Services and Markets Act 2000 (FSMA), Financial Services Authority & Ors v Amro International & Ors [2010] EWCA Civ 123. The case involved a request made to the FSA by the United States Securities and Exchange Commission. The Commission had instituted proceedings in the United States alleging fraudulent and manipulative trading in the shares of a US company. Pursuant to a multilateral memorandum of understanding concerning the exchange of information (the Memorandum), the Commission sent to the FSA a letter requesting the FSA’s assistance in obtaining the production of documents from a London-based accounting firm (G) which acted for two companies implicated in the US litigation. In response to the request, the FSA appointed investigators under the FSMA and the investigators issued notices to G pursuant to s. 171 and/or s. 172 FSMA to produce the documents and information described in the Commission’s request. Overturning the judgment of the High Court, the Court of Appeal held that the FSA’s actions in appointing investigators and issuing the notices were lawful under the FSMA. In the course of its judgment, the Court of Appeal rejected arguments advanced by the respondents to the effect that: (a) the FSA had to verify the information provided by the Commission and the Commission’s need for documents prior to taking action under the FSMA; (b) the FSA’s actions were at odds with the terms of the Memorandum and (c) it had to be established that production of the documents was ‘necessary or expedient’ in all the circumstances. It held that: there was nothing in the statute which required the FSA to second-guess a foreign regulator as to its own laws and procedures or as to the genuineness or validity of its request for assistance; the question of whether to provide the requested assistance was to be determined under the FSMA and not the Memorandum; and the test to be applied in respect of the production of documents was that contained in s. 171(2), namely whether the investigator reasonably considered production to be relevant to the purposes of the investigation; the test contained in s. 171(2) was a relatively low hurdle which had been cleared on the facts of the case. The Court of Appeal recognized that the FSA’s actions might engage the Article 8 right to privacy and, hence, considerations of proportionality came into play. However, it concluded that the actions taken by the FSA were proportionate in all the circumstances.