Last month the House of Lords granted the Information Commissioner permission to appeal the Court of Appeal’s judgment in Office of Communications v IC [2009] EWCA Civ 90 (‘Ofcom’). In Ofcom, the Court of Appeal considered the question of how the public interest test under regulation 12(5)(b) of the Environmental Information Regulations 2004 (‘EIR’) applied where a number of different exceptions were engaged in respect of particular requested information. It held that, rather than conducting discrete public interest balancing exercises under each individual exception, the public authority could effectively bundle all the public interest considerations relevant to the applicable exceptions into a single compendious public interest balancing exercise. The Commissioner has now been granted permission to appeal the judgment to the newly constituted Supreme Court. 11KBW’s Ahlaq Choudury is acting on behalf of the Commissioner.
‘Meta-requests’ and Late Exemptions – High Court Judgment
In Home Office & Ministry of Justice v IC (EA/2008/062), the Information Tribunal held that the Home Office had erred in refusing to disclose information which revealed how internally it had dealt with some 48 FOIA requests which had previously been made by a particular media organisation. In particular, it held that the Home Office had not been entitled to treat that information as exempt under section 36 FOIA (prejudice to public affairs). The High Court has now upheld the Tribunal’s decision on appeal by the Home Office – see Home Office & Ministry of Justice v IC [2009] EWHC 1611 (Admin). Notably, the High Court declined to decide the question of how the Tribunal should respond to a public authority which sought to invoke exemptions for the first time before the Tribunal. The Home Office had sought to argue, contrary to existing Tribunal orthodoxy (see particularly Department for Business and Regulatory Reform v IC & Friends of the Earth (EA/2007/0072)), that the Tribunal had no discretion to refuse late reliance on exemptions and that a public authority was, in effect, automatically entitled to invoke new exemptions at any stage in the process. The Commissioner invited the Court to approve the orthodox position. Keith J held that he ought not to decide this particular issue given that it had effectively become academic on the facts of the appeal.
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Podcast on employment vetting
Thanks to CPDcast, I have recently recorded a podcast on the subject of employment vetting. It deals with various subjects, including CRB checks and the new ISA barring regime. If you want to listen, it’s available here. I hope to be able to post a code here in a few days (with the agreement of CPDcast) which will enable readers of this blog to listen for free. It’s also worth looking at the rest of the site; they are very strong on information law subjects.
Blogger’s Identity Not Private Information
Yesterday, the High Court handed down an important judgment on the application of the law of privacy to anonymous bloggers. The case involved a detective constable, Mr Horton, whose anonymous blog, ‘Night Jack’, gave a behind-the-scenes insight into modern policing. The prize-winning blog attracted a huge following. When a journalist at the time discovered Mr Horton’s identity by carrying out his own detective work, Mr Horton sought and was granted an injunction restraining the Times from revealing his identity. However, that injunction was lifted in a judgment handed down on 16 June 2009 by Eady J: The Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358 (QB).
The central issue in the case was whether the developing law of privacy entitled Mr Horton to retain anonymity in respect of the blog. Eady J held that the injunction should be lifted because Mr Horton had failed to demonstrate that there was a legally enforceable right to maintain anonymity in respect of his identity. In reaching this conclusion, Eady J applied a two stage test: first, he considered whether Mr Horton had established that he had a reasonable expectation of privacy in respect of his blogging activities; second, he considered whether, if there was a reasonable expectation of privacy, that expectation was nonetheless overridden by the public interest in disclosure. Eady J found that Mr Horton lost on the first limb of the test because the essentially public nature of his blogging activity meant that, judged objectively, Mr Horton could not reasonably expect that his identity would be treated as private information. Having decided the case against Mr Horton on this basis, Eady J nonetheless went on to consider the public interest arguments. With respect to those arguments, he held that there was in any event an overwhelming public interest in disclosure of the information. This was the case particularly given the public interest in revealing that the person making critical and politically controversial comments about the force through the blog was himself a particular serving police officer. In reaching these conclusions, Eady J rejected arguments to the effect that the injunction should be maintained given the risk that disclosure of his identity would increase the risk that Mr Horton would face disciplinary action.
Disclosing Court Records under FOIA
The Tribunal has recently handed down a decision in which it reached a number of important conclusions on the application of s. 32 FOIA (the courts records exemption) – Dominic Kennedy v IC & Charity Commissioners (EA/2008/0083). The appeal was concerned with a request which had been made to the Charity Commissioners for disclosure of information as to its inquiry into ‘the Mariam Appeal’. The appeal had been set up by George Galloway MP and its purposes were stated to include providing medical support to the Iraqi people. The Charity Commissioners refused disclosure of the requested information on the basis that it amounted to a court record and, hence, was absolutely exempt from disclosure under s. 32 FOIA.
The first issue which the Tribunal was called upon to determine was whether the word ‘document’ as it appears in s. 32 included electronic documents or merely hard copy documents. This was an issue in the appeal because, in contrast with all other exemptions, s. 32 focuses on information contained in ‘documents’. The Tribunal decided that the word ‘documents’ as it appears in s. 32 should be given an expansive interpretation so as to include both electronic documents and hard copy documents, not least because this is the result which Parliament must plainly have intended in enacting s. 32 (paras. 58-60). The Tribunal also held that s. 32 can apply, not merely to records relating to on-going inquiries, but also to inquiries that are closed (paras. 86-92).
In the course of its decision, the Tribunal accepted that it was giving s. 32 ‘a very wide scope’, which contrasted with the approach taken by the Tribunals to other exemptions in FOIA. However, it concluded that this was the required result given the need to respect the autonomy of the courts and those bodies which conduct statutory inquiries and arbitrations (para. 92).
The Tribunal went on to find that the general implications of its findings were that
a) If after a court decision or an inquiry closes then anyone can ask for the leave of the court or person conducting the inquiry for documents and the judge or authority can consider this but outside the realms of FOIA. Courts have rules for this and government inquiries also envisage similar rules. Therefore we would recommend that the Charity Commission considers adopting such rules; and
b) If documents are provided by other public authorities then a person can always make an FOIA request to them and they would not be able to rely on s.32(2)’ (para. 95)
The approach adopted by the Tribunal was consistent with the approach adopted in the earlier case of Szucs v Information Commissioner (EA/2007/0075). 11KBW’s Clive Sheldon appeared on behalf of the Commissioner in Kennedy.