DISCLOSING CONSULTANTS’ REPORTS UNDER THE EIR

Posted on | by Anya Proops KC

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.

The application of FOIA to public service broadcasters

Posted on | by Ben Hooper

Two High Court judgments were handed down last week on what has become known as the BBC’s “derogation” – its limited entry in Sch. 1 to FOIA, under which FOIA applies to the BBC only “in respect of information held for purposes other than those of journalism, art or literature”. Channel 4 and S4C (the Welsh television channel) have entries in Sch. 1 to the same effect.

 

The cases were Sugar v. BBC and BBC v. Information Commissioner. The former concerned a request for an internal BBC report into Middle East reporting, the latter concerned four sets of requests for various items of financial information relating to the BBC’s programme output. In both cases, Irwin J rejected the submission advanced by all parties that a test of dominant purpose should be used when applying the derogation (i.e. that where information was held for a variety of purposes, it would outside FOIA if it was predominantly held for the purposes of “journalism, art of literature”). Instead, Irwin J applied a de minimis approach and held that, on a proper construction of the derogation, “the BBC has no obligation to disclose information which they hold to any significant extent for the purposes of journalism, art or literature, whether or not the information is also held for other purposes.” (See para. 65 of Sugar).

 

It is as yet unclear whether this aspect of the judgments will be challenged on appeal. Unless and until it is, it would seem that the scope for applying FOIA to information held by the public service broadcasters is more limited than was previously thought to be the case.

Paying for the ICO

Posted on | by Timothy Pitt-Payne KC

Organisations that process personal data must notify the Information Commissioner’s Office, and pay an annual fee. Up to now the fee has been £35, for all data controllers. With effect from 1st October 2009, some large data controllers will instead pay a fee of £500.

The changes are made by the Data Protection (Notification and Notification Fees) (Amendment) Regulations 2009 (SI 2009 No 1677). These divide data controllers into two groups: tier 1 organisations, which pay £35, and tier 2 organisations, which pay £500. All data controllers not in tier 2 are in tier 1.

A data controller will be in tier 2 if it satisfies the following three conditions: (i) it is not a charity or a small occupational pension scheme; (ii) it has been in existence for more than a month; and (iii) it has a turnover of £25.9 million or more for the data controller’s financial year and 250 or more members of staff, or it is a public authority with 250 or more members of staff. There are detailed provisions as to how turnover and staff numbers should be calculated for these purposes.

An explanatory memorandum issued by the Ministry of Justice gives the policy background to the change. Essentially it argues that large organisations cost more for the ICO to regulate, and so should pay a higher fee. The memorandum suggests that about 4% of data controllers will pay the higher fee, and that the extra annual income to the ICO will be about £4.7 million.

 A more interesting question perhaps – and one that the new Regulations do not affect at all – is who is obliged to notify the Information Commissioner. Anyone who uses a computer to process personal data is a data controller and obliged to notify, unless they are subject to an exemption. Under section 36 of the Data Protection Act 1998, personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes) are exempt from the duty to notify (and indeed from most of the rest of the Act as well). This is sometimes referred to as the “domestic use”, or “Christmas card list” exemption: if you keep your family’s Christmas card list on a computer, you do not have to notify the ICO that you are processing personal data, and you can spend the £35 on something else instead.

But what if you put personal data on to the internet? The Lindqvist case in the European Court of Justice suggests that the domestic exemption would not apply here, because information posted on the internet is available to all the world. Since Lindqvist was decided, there has been an explosion of blogging, and social networking, all internet-based. How much of this activity would come within the domestic use exemption remains unclear.

 

 

Proving Identity and Privacy – Scottish Consultation Paper

Posted on | by Anya Proops KC

The Scottish government has recently published a consultation paper on certain draft identity management and privacy principles. The draft principles have been developed with a view to ensuring that public services in Scotland are better placed to manage the process of proving identity (e.g. in the case of benefit claims) in a way that protects individual privacy. The deadline for responses is 23 November 2009

GOVERNMENT REPORT ON APPLICATION OF ENVIRONMENTAL INFORMATION DIRECTIVE

Posted on | by Anya Proops KC

Member States of the EU are subject to an obligation to report to the European Commission on the application of European Directive 2003/4/EC on public access to environmental information. Last week, the UK Government submitted its report to the Commission. The report highlights the Government’s experience of the application of the Environmental Information Regulations 2004 since they came into force in the UK on 1 January 2005. It is worth noting in particular Annex 1 to the report which contains a summary of tribunal decisions on the definition of ‘environmental information’ for the purposes of the Regulations. The Government is inviting comments on the report from members of the public.

The Law Officers’ Convention and the Ministerial Code – High Court Judgment

Posted on | by Robin Hopkins

The recent judgment in HM Treasury v Information Commissioner and Evan Owen [2009] EWHC 1811 (Admin) saw the High Court quash a decision by the Information Tribunal requiring HM Treasury to disclose whether or not it held advice from the Law Officers on the compatibility of the Financial Services and Markets Bill with the Human Rights Act.

By a long-standing constitutional Convention – recognised in the Ministerial Code – the fact that the Law Officers have been consulted is not disclosed outside government without the consent of the Attorney General. This is specifically accommodated in the qualified exemption under section 35(1)(c) FOIA. The Tribunal, however, had upheld the Commissioner’s decision that the public interest favoured disclosure in this case.

Blake J held that, in so doing, the Tribunal failed to afford due weight to three factors. First, the fact that section 35(1)(c) aimed not to supplant the Convention, but to preserve it subject to a public interest test. Secondly, the views of experienced civil servants on the consequences of departing from the Convention. Thirdly, those factors counting against disclosure that were based on generalised rather than specific harm. The Tribunal had also failed to evaluate for itself the strength of the public interest in disclosure in light of the extensive legal advice that had already been publicised on this issue.

Given that similar factors have been discussed in a number of other High Court judgments referred to by Blake J, this judgment makes a notable contribution to the jurisprudence on the public interest balancing test.