On 17 November 2009, the Supreme Court will hear the Information Commissioner’s appeal against the Court of Appeal’s judgment in Office of Communications v Information Commissioner [2009] EWCA Civ 90 (Ofcom). In Ofcom, the Court of Appeal held that, when multiple exceptions were engaged in respect of particular information, the public interest test provided for under regulation 12(1)(b) of the Environmental Information Regulations 2004 would operate so as to entitle the public authority to aggregate all the different public interest factors relating to all applicable exceptions in a single, compendious public interest balancing exercise. This judgment was controversial, not least because it represented a departure from the well-established approach of tailoring public interest considerations to the individual exception in issue. Notably, in a recent Information Tribunal decision, the Tribunal highlighted some of the practical difficulties posed by the adoption of the aggregate approach to the public interest test (South Gloucestershire v Information Commissioner (EA/2009/0032), §§48-52). 11KBW’s Clive Lewis and Akhlaq Choudhury will be appearing on behalf of the Commissioner in the Supreme Court.
ACCESSING LOCAL AUTHORITY INFORMATION UNDER THE AUDIT COMMISSION ACT 1998
It is often thought by members of the public that the only way to access information relating to how local authorities are spending public monies is through the application of the Freedom of Information Act 2000. However, a recent judgment of the High Court has highlighted that such information may also be accessed in certain circumstances under another much less well known enactment, namely the Audit Commission Act 1998 (ACA). In summary, section 15 ACA permits ‘any person interested’ (e.g. local council tax payers) to inspect a local authority’s accounts and documents ‘relating to’ those accounts at the time of the authority’s annual audit.
In Veolia ES Nottinghamshire Ltd v Nottinghamshire CC & Ors [2009] EWHC 2382 (Admin), an inspection request was submitted to the Nottinghamshire CC by an interested person. The documents falling within the ambit of the request included a particular waste management contract which Veolia had entered into with the Council, along with invoices which Veolia had supplied to the Council under the contract. The Council decided that it was obliged to permit inspection of these documents under s. 15 ACA. Veolia challenged that decision by way of judicial review. Evidently, in mounting that challenge, Veolia was concerned that the information contained in the documents was commercially sensitive and should not therefore be permitted to enter the public domain under s. 15. Veolia’s case before the High Court was advanced principally on the basis that inspection should not be permitted under s. 15 as the contract and the invoices did not ‘relate to’ the local authority’s accounts. This argument was firmly rejected by Cranston J. He held that the words ‘relating to’ were sufficiently flexible that they could accommodate the documents in issue.
In reaching this conclusion, Cranson J evidently had in mind that the function of s. 15 is to enable interested persons to inspect documents which reveal precisely how the local authority is spending public monies. He concluded, in effect, that such a function would be frustrated if such persons could not consider the various contracts and invoices under which the local authority made payments to third parties.
It is apparent from the judgment in Veolia, that considerations relating to commercial sensitivity and confidentiality will not be relevant to the decision as to whether documents may be inspected under s. 15. This very generous approach to accessing commercial information under the ACA is to be contrasted with the more restrictive approach adopted under FOIA and the Environmental Information Regulations 2004 (see further the specific exemptions afforded under those enactments in respect of confidential and commercial information; and see also South Gloucestershire Council v Information Commissioner (EA/2009/0032) for a recent example of how these exemptions apply in practice – see further the post on this case). Veolia’s application for permission to appeal against Cranston J’s judgment is currently being considered by the Court of Appeal.
11KBW’s Michael Supperstone QC, Tim Pitt-Payne and Peter Oldham all appeared in the case.
Abortion statistics: identification of patients and doctors held to be unlikely
In 2003, the Department of Health significantly reduced the detail of publicly available statistics on abortion operations: for example, no information was any longer to be released about post-24-week abortions carried out on the grounds of foetal medical defects. The Department relied principally on s. 40 FOIA in refusing the Prolife Alliance’s request for more detailed data. The Information Tribunal has, however, ordered the statistics to be disclosed: see Department of Health v IC (Additional Party: the Pro Life Alliance) (EA/2008/0074). The Tribunal agreed with the Department that the requested abortion statistics, although entirely anonymised, did constitute personal data because they were not anonymous in the hands of the data controller. The Department’s principal concern, namely the inferential identification of doctors or patients, was not, however considered ‘likely’ in the circumstances. This factual finding meant that, in the Tribunal’s view, the release of the requested personal data was fair and lawful and that (under paragraph 6(1) of Schedule 2 to the DPA) the potential prejudice to patients and doctors was outweighed by legitimate third party interests in (inter alia) monitoring compliance with abortion law, identifying abortion trends, informing public debate and encouraging accountability of medical practitioners. The decision is of note for its detailed analysis of the ways in which individuals might be identified from statistical data, and for the Tribunal’s reliance on the Corporate Officer of the House of Commons litigation (in its various stages) for guidance on the balancing test under paragraph 6(1) of Schedule 2 to the DPA.
Media Law and Practice – new book from OUP
Hot off the press is a new book from OUP on “Media Law and Practice”, edited by David Goldberg, Gavin Sutter, and Ian Walden.
This is a multi-author book, written by a team of practitioners and academics. It covers a wide range of media topics, including ownership, regulation, intellectual property, defamation, and commercial communications.
I contributed a chapter on Information Law: this discusses data protection, freedom of information, and human rights issues, including articles 8 and 10 of the Convention. One of the book’s features is that it deals with new forms of communication (including blogging), as well as traditional print or broadcast media. So I had to address questions such as, how would the “special purposes” defined in the DPA (ie artistic, journalistic and literary purposes) apply to web-based publications?
The impetus for the book comes from the Institute of Computer and Communications Law, based in the Centre for Commercial Law Studies, Queen Mary, University of London. All three editors are members of the Institute. It’s a major centre for research and teaching in areas related to information law, including intellectual property, telecoms regulation, computer law, and media law.
The book is available online from OUP’s website.
Court of Appeal judgment on Police Database
On 19 October 2009, the Court of Appeal, in Chief Constable of Humberside Police v Information Commissioner (2009) EWCA Civ 1079, allowed police appeals against a decision of the IC, upheld by the IT, that data on old minor convictions (of which there are probably about 1 million) must be deleted from the Police National Computer (“the PNC”). The Court of Appeal held that retaining information for police operational needs in the fight against crime and for other purposes was justified and did not infringe the data protection principles (“the DPP”) under the DPA 1998, especially principles 3 (personal data shall not be excessive in relation to the purpose for which they are procured) and 5 (personal data shall not be kept for longer than is necessary).
Waller LJ, applying the approach from the Bichard Inquiry, following the Soham murders, said, at paragraph 43: “If the police say rationally and reasonably that convictions, however old or minor, have a value in the work they do that should, in effect, be the end of the matter.”
Carnwath LJ referred to the importance in a case of this kind having the involvement of a Judge with direct and hands-on experience of the criminal system. Hughes LJ, with direct hands-on experience of both the criminal and family systems, summarised the position as being that it is for the data controller to determine the purpose(s) for which the data is processed; it is not open to the IC to impose his own determination of those purposes; the imposition of a concept of ‘core police purposes’ was misconceived; and in any event the proper purposes of the police in managing the PNC plainly include the retention of information for provision to others who have a legitimate need for it.
Hughes LJ emphasized practical considerations and in particular the value, in the public interest, of the existence of a single comprehensive record of convictions and of its being held by police forces acting collectively. Hughes LJ said, at paragraph 107: “Like both Waller and Carnwath LJJ, I take the clear view that if senior police officers with considerable operational experience are satisfied that even very old and comparatively minor convictions may sometimes be of assistance in police investigations, then unless that view is perversely or unreasonably held, it is not open to the Commissioner to substitute his own view of their potential use. But I should also add that the opinion expressed by the police witnesses in this case entirely accords with what is seen to be true from time to time in major criminal investigations. As was in evidence in these proceedings, Dame Janet Smith also reached a similar conclusion when considering the investigation into Dr Shipman. Such old convictions, if never subsequently repeated, may very well not be the kind of material which it is proper to put before a jury, … but that does not begin to mean that they have not been of use in the investigation. Quite apart from propensity (or lack of it) to offend in a particular manner, they are likely to be useful for other reasons, of which location and associates are but two simple examples. Moreover, the critical consideration is not the use of the conviction standing by itself, but its potential value in conjunction with other information pieced together by a skilled detective.”
Hughes LJ further observed that many others depend heavily, and reasonably, on the maintenance by the police of these records. Those others include (but are not limited to) the criminal courts, the family courts and those concerned with the protection of children and the vulnerable. He said that the criminal courts have a plain need for reliable and comprehensive information. The Rehabilitation of Offenders Act 1974 is expressly made not to apply to criminal proceedings. There are at least two situations in which the need for such records arises daily. The first is in sentencing. The second relates to the credit of witnesses, especially those relied upon by the Crown. The Secretary of State for Justice expressed the view in this case that “providing anything less than full information to the courts would potentially undermine the criminal justice process”. Hughes LJ agreed.
Hughes LJ also stated that the importance of multi-agency working to child welfare in general, and to child-centred family proceedings in particular, has been recognised for many years, has been the repeated subject of judicial and ministerial exhortation alike, and is difficult to overstate. It is, nowadays, the daily norm of cases in the family courts. The Rehabilitation of Offenders Act 1974 is expressly made not to apply to these proceedings either. It may well be that at times such co-operation throws up difficult questions about the extent of disclosure which a police force ought to make to social services or other child welfare professionals, but that is not a reason for failing to have available a comprehensive record in order to make a fully-informed decision about it.
As regards the vetting of potential employees, Hughes J said that, given the statutory framework, it is plain that it is part of the necessary public purposes of the PNC that it maintain a complete record of convictions etc to enable the statutory scheme to work.
DISCLOSING CONSULTANTS’ REPORTS UNDER THE EIR
Yesterday, the Information Tribunal promulgated an important decision on the application of certain exceptions in the Environmental Information Regulations 2004 (EIR), South Gloucestershire Council v Information Commissioner & Bovis (EA/2009/32). The case concerned an application made by a developer (Bovis) for disclosure of information contained in a number of consultants’ appraisals. The appraisals had been commissioned by the council in respect of a proposed section 106 planning agreement. The agreement in turn related to a major development which Bovis was proposing to undertake in the council’s area. The appraisals had been commissioned in essence in order to assist the council in its negotiations with Bovis in respect of the section 106 agreement. The council had refused disclosure of some of the information in the appraisals, which largely consisted of financial information, on the basis that that information fell within the exceptions provided for under r. 12(4)(e) EIR (the internal communications exception) and r. 12(5)(e) EIR (the confidential/commercial information exception). The Commissioner held that neither of these exceptions was engaged.
On appeal by the council, the Tribunal held that the circumstances of the case were such that the council had not been entitled to treat the appraisals as an ‘internal communication’ for the purposes of r. 12(4)(e) (cf. the Tribunal’s decision in Secretary of State for Transport v Information Commissioner (EA/2008/0052): draft report on transport policy prepared by independent third party was an ‘internal communication’, particularly in view of the extent to which the third party had been ‘embedded’ in the public authority). However, the Tribunal went on to allow the council’s appeal on the basis that the information in the appraisals did constitute confidential, commercial information falling within the ambit of r. 12(5)(e). The Tribunal also held that the public interest balance weighed in favour maintaining the exception and, accordingly, that the council had been lawfully entitled to withhold the requested information.
In reaching the conclusion that r. 12(5)(e) was engaged in respect of the information, the Tribunal rejected arguments advanced by the Commissioner that r. 12(5)(e) would only be engaged in respect of confidential information where the duty of confidence was owed by the public authority to a third party. It held that r. 12(5)(e) applied equally to the authority’s own confidential information. Notably, in finding that the public interest balance weighed in favour of the information being withheld, the Tribunal relied in particular on the volume of information which the council had already disclosed relating to the section 106 process and the planning process more generally.