WordPress + Bootstrap

It has been said in the recent past that FOIA is sexy. We at 11KBW know all too well how difficult it can be to maintain a constant level of supreme attractiveness. Like all sexy beasts, even FOIA can have a day on which even its own mother would struggle would struggle to describe it as worthy of a second glance. The decision of the Court of Appeal in The Independent Parliamentary Standards Authority v ICO & Leapman [2015] EWCA Civ 388 might be thought to be one of FOIA’s off-days.

For those avid readers who remember my post on the Upper Tribunal decision (here for those hard of sleeping), the issues will be vividly recalled. For everyone else, a short recitation may be useful.

Section 1 FOIA gives us a right to request information from listed public authorities, but what does “information” mean? Information is defined by section 84 of FOIA (“‘information’ (subject to sections 51(8) and 75(2)) means information recorded in any form”). This somewhat opaque definition has generally been treated as meaning that a request is for information. It is not for copies of documents. If the public authority wants to type out the document in a different format, they can, so long as the information contained within that document is provided.

Mr Leapman had made a request to IPSA for receipts and invoices provided by particular MPs in support of their expenses claims. IPSA provided him with transcribed versions of those receipts and invoices. Mr Leapman was not satisfied; he wanted the originals. The ICO agreed, as did the FTT and the UT on appeal. IPSA appealed to the Court of Appeal. Mr Leapman, formerly of the Daily Telegraph, did not participate in the Court of Appeal, doubtless being otherwise engaged in his detention at Her Majesty’s pleasure for offences of rape and downloading child abuse images.

Richards LJ gave the only judgment and it is fair to say that while it is of practical importance, the issue does not stir the blood. Nonetheless, the Court remained awake long enough to dismiss the appeal on all grounds. On the main issue, Richards LJ agreed with the ICO. Information was to be construed broadly and there would be cases where it is necessary in practice to disclose the record itself in order to communicate the entirety of the information contained in it: at [36]. There was no collapse in the distinction between the record and the information contained within it. The request had not been for copies as opposed to the information, but rather for all the recorded information contained on the receipts/invoices. Without the copies themselves, there was an inevitable shortfall in the information provided: at [39]. Counsel for ISPA conceded that some presentational elements may reveal recorded information, and that, Richards LJ held, indicated that there was no clear line between presentational elements and recorded information, even if it was sometimes difficult to spot where the line was: at [43]. If something is on the face of the document it is more readily about the information itself, rather than the form of the record (whereas the weave of the paper would go only to the record): at [42]. What is important is that the material sought is informative in the sense that tells you something, which may be visual or linguistic: at [44]. The fact that such information may go to an assessment of genuineness is a factor (but not the only factor) in assessing whether it is relevantly informative, without infringing the motive-blind approach of FOIA: at [45].

IPSA also managed to achieve the seemingly challenging feat of advancing a ground even less enthralling than the meaning of information, namely the scope of the section 11 duty to communicate information by reasonably practicable means. Here Richards LJ indulged IPSA in dealing in full with an argument which failed at the first hurdle. Section 11 is not an aspect of the section 1 obligation on public authorities; it cannot cut down the twin duties in section 1 to confirm or deny, and to release subject to exemptions. Section 11 poses a separate, additional, duty where a preference as to the means of communication is specified: at [52]-[53]. Although unnecessary to do so, Richards LJ gave the tentative view that in the light of the informal nature of requests they should not be  interpreted like contracts (something of a relief to all one would imagine), and their interpretation was a question of fact, or at least a mixed question of fact and law: at [58]. The only point on which IPSA made any ground was one of total irrelevance, namely that had the analysis got to section 11(2), the wording of “in all the circumstances” was appropriately broad enough to encompass the cost consequences of future compliance, rather than limited to the consequences of responding  to the specific request.

So, three appeals later, we end at exactly the point we started; namely that the ICO’s DN was a model of sensible reasoning and common sense. Information includes visual aspects to a document which may be informative, even if they cannot be readily transcribed by a reluctant public authority. That does not mean FOIA is now a route of documentary disclosure, any more than the DPA is. But it does call for a holistic approach to the information in issue. It requires dealing with substance and appearance, taking the information as a whole and examining it carefully. Hang on… Maybe it is a little bit sexy after all.

Robin Hopkins appeared for the ICO.

Christopher Knight

Readers of this blog will doubtless be well aware of the recent landmark judgment of the Court of Appeal in Vidal-Hall & Ors v Google, where it was held that compensation is available for mere distress caused by  breach of data protection legislation. Interestingly, it is being reported today that the US Supreme Court will in due course be deciding a case on a similar issue, namely whether compensation is available where websites publish inaccurate data concerning individuals but the inaccuracy in the data causes no pecuniary loss. It appears that the issue will be considered by the Court in the context of a class action brought against an internet search engine that compiles publicly available data on people and lets subscribers view that information online – see further AP’s report on the case here. See also the Amicus Brief filed by Ebay, Facebook, Yahoo and Google in support of the appeal being brought by the ISE. That Brief, which rests heavily on in terrorem arguments, asserts not least that:

“Amici are concerned that this decision will substantially and improperly lower the bar for invoking the jurisdiction of federal courts, inviting abusive and costly litigation, including class actions seeking millions or even billions of dollars in statutory damages under FCRA [Fair Credit Reporting Act] and similar statutes. Amici are members of a rapidly growing and transforming technology industry that provides services to hundreds of millions of individuals each day. Users of amici’s services routinely conduct financial transactions, share information and content, and interact with people all over the world on platforms offered by amici. The services amici provide, the information they collect, and the interactions they facilitate arguably could be subject to laws that contain private rights of action and allow for statutory damages”

Of course, in the UK we have yet to see any comparable group litigation emerging in response to inaccurate data processed by data controllers. However, in the wake of Vidal-Hall, it can only be a matter of time before such cases are brought before the English Courts.

Anya Proops

When local authorities provide property search information, can they charge for doing so? On what legal basis? How should such charges be calculated?

A Panopticon post from February 2014 by Robin Hopkins explains the background. To summarise, at one time it was widely believed that the Local Authorities (England)(Charges for Property Searches) Regulations 2008 (“CPSR”) applied, allowing local authorities to charge by reference to staff costs, overheads, and the cost of maintaining information systems.   More recently, it has been recognised that such requests will largely fall within the Environmental Information Regulations 2004 (“EIR”). EIR regulation 8 allows reasonable charges to be imposed for making environmental information available, save that no charge may be imposed for permitting access to public registers or for examining the requested information in situ.

In East Sussex County Council v Information Commissioner and others the applicant requested answers to the questions in CON29, the Law Society’s standard property search form. The Council imposed a fixed charge (based on the CPSR approach) that took account of disbursements, staff time, overheads, office costs, and information system costs. The First Tier Tribunal had to determine whether the charge was permissible under EIR regulation 8. It referred a number of questions to the CJEU for a preliminary ruling on the construction of Directive 2003/4 (“the Directive), to which the EIR give effect.

The case has now been heard in the CJEU, and Advocate General Sharpston issued her opinion on 16^th April 2015.

The case turns on the construction of Articles 5 and 6 of the Directive. Article 5(1) requires that access to any public registers or lists of environmental information, and examination in situ of such information, shall be free of charge. Article 5(2) then allows public authorities to charge for supplying environmental information on request, provided that the charge does not exceed a reasonable amount. By Article 6, Member States must provide for administrative and judicial review of public authorities’ decisions relating to access to environmental information.

The first question addressed is what is meant by “supplying” environmental information in Article 5(2). Advocate General Sharpston states that this means providing access on request, by giving such information to an applicant in the format that he specifies, in circumstances other than those set out in Article 5(1).

What constitutes a “reasonable amount” within Article 5(2)? Advocate General Sharpston refers to this term as having an autonomous EU law meaning. She sets out, in some detail, what this means in practice. She identifies four requirements. First, a reasonable charge is one that is set on the basis of objective factors that are known and capable of review by a third party. Secondly, the charge must be calculated regardless of the requester’s identity or purpose. Thirdly, the charge must be set at a level that does not dissuade people from seeking access or restrict their right of access. Fourthly, the charge must be appropriate to the reason why Member States are allowed to make this charge (that is, that a member of the public has made a request for the supply of environmental information), and must be directly correlated to the act of supplying the information.

What can such a charge include? It must be based on the costs actually incurred in connection with the act of supplying information in response to a specific request. Hence the charge cannot include database costs, or overheads such as heating, lighting, or internal services. However it can include the costs of staff time spent on searching for and producing the information requested, and the cost of producing it in the form requested.

It is permissible for national law to provide that a public authority must satisfy itself that a charge levied meets the reasonableness standard. However, Article 6(1) and (2) of Directive 2003/4 requires a Member State to ensure that there can be both administrative and judicial review of whether the public authority’s decision conforms with the autonomous EU law meaning of what is reasonable.

While the issue of search costs for property search information may not set the pulse racing, it is of real importance both for companies carrying on business in this area and for cash-strapped local authorities keen to recover whatever costs they can. It remains to be seen, of course, whether the CJEU will adopt the Advocate General’s opinion.

11KBW’s Anya Proops acted for the Information Commissioner in the proceedings before the CJEU.

Every election, the House of Commons loses some of its most popular and well-respected Members. This year, it is also losing Andrew Lansley, whose reforms whilst Secretary of State for Health have bought such unwavering support from all parts of the political spectrum. Happily, Mr Lansley kept a diary of his momentous period in office. Unhappily, a FOIA request was only made for his Ministerial diary, which records the Secretary of State’s meetings etc, a redacted version of which was released in response to the request. The ICO ordered most of the withheld information to be released, and that was broadly echoed by the First-tier Tribunal in Department of Health v ICO (EA/2013/0087), on which see here, in rejecting reliance on s35(1)(a), (b) and (d) FOIA.

The DoH appealed, and Charles J has now handed down judgment in Department of Health v ICO & Lewis [2015] UKUT 159 (AAC). The appeal was dismissed. There are a number of points of interest in the judgment, not least:

• There is a strong public interest in the press and public having the right, subject to appropriate safeguards, to require public authorities to provide information about their activities: at [10]-[12].
• It is unusual to see a judge refer to his own experience as Treasury Counsel in the development of the law (on public interest immunity): at [18].
• Disclosure under FOIA should be approached on a contents, specific information, basis and not a class basis: at [19]-[21].
• It is right to avoid suggestions of inherent weight (on which see my post here): at [22]-[24].
• A contents based assessment must show that the actual information is an example of the type of information within the class description of an exemption and why the manner in which disclosure of its contents will cause or give rise to risk of actual harm to the public interest, and evidence which does not address this is flawed: at [29]-[30].
• Although generic reasons in support of the public interest may be inevitable, and are not irrelevant, attempts should be made (particularly by the ICO) to identify specific public interests engaged in support of disclosure: at [35]-[38].
• Oral evidence can be useful, particularly where it tests credibility rather than reasoning, but the FTT should ask in each case whether it is needed, why it is needed, what limitations should be placed on it and whether other parties should also give evidence: at [41]-[42], [45].
• Senior civil servants may be taking a line that there should be transparency but only on departmental terms, and their evidence often warrants a ‘Mandy Rice Davies’ sidenote (i.e. he would say that, wouldn’t he): at [48].
• A high degree of deference to either side is very unlikely to be appropriate when assessing the public interest balance; a thorough and critical analysis of the competing reasoning and analysis should be carried out. A judicious recognition of the extent of Government expertise (and Tribunal lack thereof) is appropriate, and proper weight should be given to the views of those who work in the field, but that does not equate to an approach whereby in an unusual case the FTT should accept the Departmental view unless it is irrational: at [57], [59]-[61], [63]-[67].
• The FTT had rightly identified very considerable flaws in the Department’s evidence, such that a risk of harm could not be accepted: at [73]-[79], [81]-[82].
• Charles J’s further reasons on matters not addressed by the witnesses pose clear difficulties for future attempts on the part of (particularly) Government witnesses to assert risk of harm from disclosure without specific evidence: at [80].
• When considering whether information is held under s3(2)(a) FOIA (“otherwise than on behalf of another person”), the intention of Parliament in promoting the purpose of FOIA (first bullet above) means that University of Newcastle upon Tyne v ICO & BUAV [2011] UKUT 185 (AAC) is correct (see here) and that a predominant purpose approach between different types of information is incorrect: at [106].
• Non-Ministerial appointments in the diary were supplied by the Minister to avoid clashes etc, and must be considered as part of the diary as a whole. There was a sufficiently direct connection between the content and the reason why the information was recorded by the Department for it to be held. Whether or not it remained held under FOIA might depend on whether it was still said to be exempt under FOIA (for non-s40 reasons). The diary remained held: at [114], [117], [119]-[121].

The judgment is a lengthy one, but contains more nuggets than a KFC bargain bucket (other purveyors of fried chicken are available). Our very own secret blend of eleven herbs and spices, Robin Hopkins, appeared for the ICO.

Christopher Knight

“The world is full of obvious things which nobody by any chance ever observes.” Sherlock Holmes, The Hound of the Baskervilles.

What else can there possibly be to say about Evans not covered in Robin’s excellent post from Thursday? One can contemplate the possible amendments the Government might make (how much clearer could Parliament have made the purpose of section 53), and what other changes might be made at the same time, especially in the light of the PM referring to FOIA as one of the “buggerations” of Government in the Times magazine yesterday. One can analyse the dissenting judgments, which is certainly worthy of time. One can remark again on the constitutional importance of the Supreme Court emphasising the rule of law.

Most information law practitioners probably think there isn’t really anything in Evans that is going to be very relevant to their daily lives. Even central Government FOIA officers have onlyseen seven vetos in ten years, so Evans isn’t going to make much of a practical difference.

But. Almost in passing, there is one passage in the judgment of Lord Neuberger (if not the majority judgment, at least the leading judgment) which is worthy of notice.

As has been previously pointed out on this blog, the Upper Tribunal in Defra v ICO & the Badger Trust [2014] UKUT 526 (AAC) set the cat amongst the FOIA pigeons (if that is not too much of a mixture of animal metaphors) by suggesting at [44]-[48] that it was an open question whether the public interest balance was to be assessed at the time of the request/response or afresh at the time of the Tribunal hearing. That baton is now being taken up in the  latest round of the interminable APPGER litigation.

However, it is possible that the Supreme Court has beaten them to it. The time of the assessment of the balancing exercise was a point of some relevance to the reasoning of Lord Neuberger, because a (powerful) objection to the reasoning of the Court of Appeal (including from me) was that the two permitted exceptional categories, particularly the reliance on fresh evidence, did not leave much room for application of the veto where the public interest was adjudged at or around the time of the request. Lord Neuberger, unlike the Court of Appeal, sought to address the point. In doing so, he noted at [72] that:

“It is common ground, in the light of the language of sections 50(1), 50(4) and 58(1), which all focus on the correctness of the original refusal by the public authority, that the Commissioner, and, on any appeal, any tribunal or court, have to assess the correctness of the public authority’s refusal to disclose as at the date of that refusal.”

As the text sets out, no contrary point was argued, but Lord Neuberger does not express any dissent about it and sets out the legal basis for it in the statutory language. Moreover, he went to reiterate the point, and the exceptions to it, at [72]:

“However, although the question whether to uphold or overturn (under section 50 or sections 57 or 58) a refusal by a public authority must be determined as at the date of the original refusal, facts and matters and even grounds of exemption may, subject to the control of the Commissioner or the tribunal, be admissible even though they were not in the mind of the indivdual responsible for the refusal or communicated at the time of the refusal to disclose (i) if they existed at the date of the refusal, or (ii) if they did not exist at that date, but only in so far as they throw light on the grounds now given for refusal“.

It is difficult to see how the obiter musings of the Upper Tribunal in Badger Trust can withstand this, fairly prolonged, piece of Supreme Court reasoning. Arguments may be made that it was common ground, and possibly that was obiter itself, but it will self-evidently persusive that such experienced and eminent counsel agreed such a standpoint, and that the leading judgment relies upon it.

Perhaps the debate door is shut only shortly after being opened? Perhaps Evans has something to say to FOIA lawyers outside the scope of the veto power after all? Perhaps, perhaps, perhaps…

Christopher Knight

PS A prize (kudos only though) for the first person to spot the link between opening and closing of this post.