Reforming the Information Tribunal

Posted on | by Timothy Pitt-Payne KC

A letter was circulated yesterday (4th August) to “stakeholders” of the Information Tribunal, giving information about the implications for the Information Tribunal of the new unified tribunal structure.

The new structure involves a system of First Tier tribunals and Upper Tribunals. The Information Tribunal will be one of a number of tribunals that transfer into the General Regulatory Chamber (GRC), one of the First Tier tribunals.

According to the letter, from January 2010 information rights cases will generally be heard in the GRC, with an appeal to the Administrative Appeals Chambers of the Upper Tribunal on a point of law. However, in some circumstances cases will be heard in the first instance in the Upper Tribunal. This will be where the appeal is complex, unusual, or particularly important. In additional national security appeals (under section 28 of the Data Protection Act 1998 or section 60 of the Freedom of Information Act 2000) will go straight to the Upper Tribunal.

The procedural rules for those tribunals moving into the GRC in September 2009 have now been finalised and laid before Parliament. This includes the Charity Tribunal, the Estate Agents Appeals Panel and the Consumer Credit Appeals Tribunal. For those jurisdictions moving to the GRC in January 2010 – including the Information Tribunal – any further specific procedural rules will be added by amendment once Parliament has approved the transfer. Approval is expected later this year.

House of Lords Grants Permission in Ofcom

Posted on | by Anya Proops KC

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

Posted on | by Anya Proops KC

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. 

A special offer for all our readers

Posted on | by Timothy Pitt-Payne KC

CPDcast have kindly agreed to give our readers free access to my podcast on Employment Vetting.

This is what you need to do:

Go to www.CPDcast.com
Register for a free account with your email address.
Click on ‘Browse the CPDcasts’.
Select ‘Information Sharing & Employee Vetting’ from the list.
Enter the code payne09 in lower case in the box at the bottom of the screen and click ‘Enter’.
Then click ‘Proceed to Checkout’.

This means that you will be able to download the podcast for the special offer price of £0.00.

Podcast on employment vetting

Posted on | by Timothy Pitt-Payne KC

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

Posted on | by Anya Proops KC

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.