In Ofcom v Information Commissioner [2009] EWCA Civ 90, the Court of Appeal held that in applying the public interest test under the Environmental Information Regulations it is necessary to aggregate all public interest factors relating to all applicable exceptions and weigh these against the public interest in disclosure. This is a departure from the well-established approach of looking only at the public interest factors in respect of a particular exception to determine whether the public interest in maintaining that exception outweighs the public interest in disclosure. This change in approach will affect disclosure decisions under both the EIR and FOIA. The ICO has lodged a petition seeking permission to appeal to the House of Lords.
Make it intelligible
Posted by James Goudie QC
One of the circumstances when there is a duty to provide information is when there is a duty to consult. One of the four elements of fair consultation is the provision of adequate information on which to respond. In R (Breckland DC) v The Boundary Committee and R(East Devon DC) v The Boundary Committee [2009) EWCA Civ 239] concerned with proposals for local government reorganistion, the Boundary Committee (BC) was under a statutory duty to solicit representations upon their draft proposals and to take account of those representations. The Court of Appeal today held that this meant that the BC must carry out a process of consultation, including publishing enough material to enable all those interested to respond intelligently, and that the information must be published in a form which members of the public may understand. The Court of Appeal further held that the BC had failed adequately to consult on affordability, because they had not provided sufficiently intelligible information in relation to that criterion or given adequate time for response to it.
Rowntree Report on Database State
The Joseph Rowntree Reform Trust has today published its report ‘The Database State’. The report purports to amount to the most comprehensive map of central government databases yet created. In total 46 databases across the major government departments were considered in the report, including, for example, the national DNA database, the national pupil database, the NHS detailed care record system and the automatic number-plate recognition system. In summary, the report concluded that:
- a quarter of the 46 databases reviewed were ‘almost certainly illegal under human rights or data protection law; that they should be scrapped or substantially redesigned’ (including, for example, the Contactpoint index of all children in England and the national DNA database – on the latter database, see further the January 2009 post on the Marper case);
- ‘more than half have significant problems with privacy or effectiveness and could fall foul of a legal challenge’ (including, for example, the NHS Summary Care Record and the National Pupil Database);
- fewer than 15% were ‘effective, proportionate and necessary with a proper legal basis for any privacy instrusions’;
- Britain was generally out of line with other developed countries as a result of its comparably greater tendancy to centralise and share records on sensitive matters like healthcare and social services; that ‘the benefits claimed for data sharing are often illusory’.
Along with the House of Lords Report on the Surveillance Society published in February 2009 (see further the February 2009 post on the Lords Report), this report is likely to increase pressure on the Government to reexamine a raft of policies on data collection, management and storage.
https://www.jrrt.org.uk/uploads/Database%20State.pdf
Executive Summary:
https://www.jrrt.org.uk/uploads/Database%20State%20-%20Executive%20Summary.pdf
Links and resources
On the left hand side of this page you will see a list of links. The first link is to a collection of information law resources on 11KBW’s main website. There are conference papers and other materials written by members of chambers; in particular there is an 80 page practical guide to the Environmental Information Regulations, written by Anya Proops. In discussions of FOI, we find that the EIR tend to be unduly neglected; Anya’s guide is a contribution to redressing the balance.
You will also find links to online resources maintained by a wide range of organisations and individuals: Government departments, regulators (both in the UK and overseas), academic institutions, legal practitioners, campaigners and bloggers. If you think that there is anything that we should add, please email me on Timothy.Pitt-Payne@11kbw.com . Needless to say, we don’t take responsibility for the information or opinions posted on any of these external sites.
Many thanks to all those who have provided feedback and encouragement following our launch last week. Particular thanks to Delia Venables for the speed with which she added us to her comprehensive listing of online legal resources in the UK and Ireland.
OGC publishes Gateway Reviews
Following a decision of the Information Tribunal issued on 19th February, the OGC has published two Gateway Reviews into the ID cards scheme.
The OGC announcement is here (with a link to the documents themselves). The Information Tribunal decision is here, on the Tribunal’s website. This case was previously the subject of a High Court appeal (from an earlier Tribunal decision).
Welcome to Panopticon
Welcome to “Panopticon”, a new blog about Information Law maintained by members of 11KBW’s Information Law Practice Group. We opened our doors to the public on 18th March (you will see some earlier posts, below, created while the blog was still under development).
Information law is about the right to know, and the right to keep private – and it is also about the ever-shifting boundary between those rights. It encompasses areas such as data protection, freedom of information, the protection of private information under article 8 of the European Convention on Human Rights, breach of confidence, and the regulation of surveillance. It is a fascinating and fast-moving area of the law, and is directly relevant to contemporary debates about open government, the “database state” and the “surveillance society”. For a more detailed explanation, click on the link at the top of the page (“What is Information Law?”).
A word about our title. The Panopticon was Jeremy Bentham’s proposed new model prison, in which constant surveillance would be a tool for moral regeneration (see here for details and illustrations). It has become an enduring metaphor in debates about the benefits and the dangers of systematic information-gathering. The title has a secondary meaning: this site is our own “Panopticon”, in which we try to keep an overview of developments in this area and to share them with our readers.
We hope you will find the blog interesting and informative. You may also be interested to explore 11KBW’s main website: this includes a wide range of conference papers and other materials about information law.
We don’t have a facility to post comments on individual posts, but please feel free to provide feedback by emailing Claire Halas: Claire.Halas@11kbw.com