High Court considers purpose behind subject access request under the DPA

Posted on | by Robin Hopkins

It is not uncommon for data controllers to be faced with subject access requests under s. 7 of the Data Protection Act 1998 the motivations for which appear to have nothing whatever to do with the purposes of the DPA.

The DPA seeks to protect individuals’ privacy rights with respect to data which is processed about them. The subject access provisions help people check up on that data and its processing (see for example YS v Minister voor Immigratie (Cases C-141/12 & C-372/12)). In practice, however, a subject access request is a fishing expedition with an eye on prospective litigation.

How does this affect the individual’s right to have his subject access complied with? The general answer is that, at least as regards applications to the Court under s. 7(9) DPA for the enforcement of a subject access request, the remedial discretion is wide enough to take the requester’s motive and purposes into account.

Kololo v Commissioner of Police for the Metropolis [2015] EWHC 600 (QB) – a judgment of Dingemans J handed down yesterday – looked set to consider the relevance of a requester’s motive (albeit that the context was not the commonplace pre-litigation fishing expedition). In the end, the judgment was largely fact-specific. Nonetheless, it is an interesting illustration of a Court engaging with a requester’s motive and that place of that motive in the statutory scheme.

The judgment is here: Kololo. There is also some press coverage in the Telegraph.

Mr Kololo is on death row in Kenya. He is challenging his conviction and sentence for robbery, kidnapping and murder of British nationals. He has never been to the UK, but officers of the Metropolitan Police were involved in the investigation of the crimes in Kenya and in evidence given at the trial.

His lawyers made subject access requests to the Foreign Office and the Metropolitan Police. The former provided data, but the Police refused. It said his request was an abuse of process.

The predominant purpose of the request was to assist with Mr Kololo’s appeal in the Kenyan Courts. The subject access request itself had said that the information sought “could prove crucial to Mr Kololo’s case”.

In his witness statement to the Court, however, Mr Kololo said that he also wanted to know what information the Police held on him “and what they are doing or have done with it”. He said he was worried about how information about him and his family may be used by the Police.

Dingemans J considered such worry to be speculative. Mr Kololo’s principal aim was plainly to obtain information which might assist with his appeal. But Dingemans J took this view (para. 31): “However, in order for any data which Mr Kololo might obtain from the Commissioner to be of any assistance to Mr Kololo on his appeal, it is likely that Mr Kololo will want to try and point to inaccuracies in the data” (if any such inaccuracies existed).

Therefore, Mr Kololo’s purpose was at least in part aligned with the purposes of the DPA: “a purpose for which Mr Kololo is making the subject access request is to determine whether there are inaccuracies in the data. This means that Mr Kololo (or his legal representatives) is making the subject access request to verify the accuracy of the data. This is so even though verifying the accuracy of the data is unlikely to be of assistance to Mr Kololo for his appellate proceedings. However if the data is not accurate Mr Kololo (or his legal representatives) may seek to correct any inaccuracies in the data. This might, depending on the inaccuracies, be of assistance to Mr Kololo for his other purposes” (para. 35).

Dingemans J noted that the Court’s discretion under s. 7(9) DPA was “’general and untrammelled’ but it is also common ground that such discretion should be exercised to give effect to the purposes of the DPA and be proportionate” (paragraph 32). On the facts, however, one of Mr Kololo’s purposes did accord with the purposes of the DPA. Therefore, his request was held not to be an abuse of process, and the Police were ordered to comply with it.

Additionally, Dingemans J briefly considered the Crime (International Co-operation) Act 2003 for an overseas court or prosecuting authority to request assistance from UK authorities. The existence of that mechanism also did not render Mr Kololo’s subject access request an abuse of process.

Anya Proops and Chris Knight appeared for the Commissioner of Police for the Metropolis.

Robin Hopkins @hopkinsrobin

Facing justice: judgment against Facebook in privacy/data protection case

Posted on | by Anya Proops KC

The extent to which privacy and data protection rights can effectively resonate within the online environment is an acutely important issue for all information law practitioners. Moreover, it is an issue which seems to be gaining ever increasing traction in the litigation context, as is illustrated not least by the following developments.

  • As most readers of this blog will know, last year the CJEU sent shock waves through the information law community when it held, in Google Spain, that EU data protection legislation operated so as to enable the so-called ‘right to be forgotten’ to be asserted against Google. (That principle is due to receive further consideration from our domestic courts in the forthcoming case of Max Mosley v Google – see Robin’s post on the Mosley case here).
  • Then we had the judgment of the High Court in Vidal-Hall v Google, where the court concluded, in the face of a jurisdictional defence mounted by Google, that claims brought against Google concerning its tracking of the internet browsing habits of users could properly proceed. (An appeal against the High Court’s judgment in that case is due to be heard by the Court of Appeal on 2nd or 3rd March – the ICO is intervening in support of the claimants’ case).
  • Now the High Court in Northern Ireland has given judgment in an important case involving a compensation claim made against Facebook: CG v Facebook & Anor [2015] NIQB 11.

Key aspects of the CG judgment are as follows:

  • The claim was brought by a convicted paedophile in respect of a series of postings placed on Facebook by third parties, one of whom had been named as second defendant to the claims. The postings not only included data amounting to vituperative name-calling but also repeated incitements to violence in respect of the claimant.
  • The High Court held that Facebook was liable in respect of the postings, particularly on the basis that it had misused the claimant’s private information by failing to delete the postings after Facebook’s attention had been drawn to their existence.
  • The High Court rejected Facebook’s assertion that its liability in respect of the postings was excluded on an application of the Electronic Commerce (EC Directive) Regulations 2002. On this issue, the court held that: (a) the Regulations only immunise the relevant information society service (ISS) against liability if the ISS has no actual or constructive knowledge of the unlawful activity on its site or, if it has acquired that knowledge, it acts expeditiously to remove or disable access to the relevant information and (b) Facebook could not rely on the Regulations in the present case because, after being notified of the relevant postings, Facebook had failed to remove or disable access to them.
  • The second defendant, an individual who was responsible for one of the disputed postings, was liable for misuse of the claimant’s private information in his capacity as primary publisher. He was also liable for harassment under the Protection from Harassment Act.
  • As for the claim under the DPA 1998, which was brought only against Facebook and not against the second defendant, that claim could not proceed because, on an application of s. 5 DPA 1998, the claim fell outside of the territorial ambit of the legislation. (Notably no reference was made in this context to the CJEU’s approach to territorial ambit under the data protection Directive in the Google Spain case).
  • Whilst no DPA claim was pleaded against the second defendant, the court made the following points about the application of the journalistic exemption contained in s. 32 DPA:
    • The court noted that the Claimant had conceded that the second defendant’s activities in posting material on Facebook might about to ‘journalism’.
    • However, the court went on to conclude there was no scope for the second defendant to rely on the journalistic exemption contained in s. 32 DPA 1998. This was particularly because the second defendant could not have had any ‘reasonable’ belief that his publications were in the public interest for the purposes of s. 32(1)(b).
  •  The claimant was awarded £20,000 in compensation in respect of his claim for misuse of private information.

What is interesting and important about the CG judgment is that it reinforces the point that organisations which operate merely so as to facilitate online freedom of expression can no longer safely assume that they are always operating in the stratosphere, far above the mire of the privacy litigation battlefield. Instead, they must appreciate that those rights are sufficiently flexible and powerful that they can potentially draw such organisations firmly into the fray.

Anya Proops

PECR Thresholds a Substantially Distressing Nuisance of the Past

Posted on | by Christopher Knight

The Department for Culture Media and Sport has today announced that it is to amend the Privacy and Electronic Communications Regulations 2003 so as to remove the requirement that unlawful nuisance calls and texts are a source of “substantial damage or substantial distress”; that being the test which must be met in order for the Information Commissioner to impose a monetary penalty notice (“MPN”): section 55A(1) of the Data Protection Act 1998.

The plan, which was the subject of consultation (see my post here), is apparently to drop the substantial damage/distress limb altogether. Draft legislation has not yet been published, so we can’t comment on the precise way this is going to be done, or whether there are any other ramifications. But such legislation will have to come soon, because the plan is to implement the change from 6 April 2015. The change will radically increase the ability of the ICO to issue MPNs to the companies which routinely flout the provisions of PECR, but which cause limited distress.

DCMS has also trailed the, as yet unexplained, idea that “We’re also going to look at whether the powers the ICO have to hold to account board level executives for such behaviour are sufficient or we need to do more.” Not clear at the moment what is meant by ‘looking at’, and it may be that another consultation is on the way.

The Government’s announcement can be read here.

Update: The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2015 have now been published and do simply remove the damage/distress limb of the section 55A test when it applies under PECR. It also adds provisions permitting emergency alerts to be sent, placing a limit on the length of time that providers may retain the traffic and location data they process, unless the data is modified in such a way that the data cannot identify an individual or corporate body.

 

Christopher Knight

Quite like a whale

Posted on | by Peter Lockley

As my colleague Robin Hopkins has warned, the decision of the Upper Tribunal in Fish Legal looks like a pretty big beast: sixty pages on whether water companies are public authorities for the purposes of the Environmental Information Regulations, applying the CJEU’s lengthy ruling on the points of principle (for which, see this post by Chris Knight).

(If you just need the quick answer: yes they are, by virtue of having ‘special powers’, but not by virtue of being under the control of a public body. For the detail, read on.)

In fact, while it could never be classed as a minnow, on closer inspection Fish Legal is not the monster it first seems (see Part 1 of the judgment here and Part 2 here). Fifteen of those sixty pages are appendices. More importantly, the decision poses, but declines to answer, some wider questions. Although Mr Justice Charles was sympathetic to the Information Commissioner’s request for guidance on how to identify a public authority, he stopped short of laying down ‘broad general principles’ on the question (paras.95-97). He gave shorter shrift to the water companies’ request that he list all of their powers which fell within the definition of ‘special powers’– a request made, apparently, with a view to lobbying Parliament to rid the companies of those powers, and so save them from the burden of EIR (para.98).

And one would hardly have expected him to address the question with the widest ramifications: if water companies are public authorities by virtue of their “special powers”, what of the various other privatised industries? It is, of course, a very fact specific analysis. Anxious electricity chiefs, rail bosses, and telecoms honchos will just have to read the judgment and consider how the ‘special powers’ and ‘control’ tests would apply to their own particular circumstances (see para. 110).

 

Background

The UT had two issues before it: (i) whether the Information Commissioner had jurisdiction to decide whether a body was a public authority for the purposes of the EIR or FOIA (as he had purported to do), and therefore whether the UT itself had jurisdiction to hear the case, and (ii) whether privatised water companies in England and Wales are public authorities for the purposes of EIR, applying the principles set down by the CJEU following a referral from the UT (blog post here).

By the time of this, the second outing before the UT, the cast list had expanded significantly, bringing in several 11KBW counsel to join Anya Proops, who acted for the Information Commissioner before the CJEU. The Secretary of State was joined as a party and was represented by Julian Milford. The parties in two related cases, Cross v IC and the Cabinet Office and Bruton v IC and Duchy of Cornwall, were also invited to make submissions on the nature of the tests. Karen Steyn QC and Joseph Barrett appeared for Mr Bruton; Amy Rogers appeared for the Duchy. (Those cases will now go forward to be decided applying the Fish Legal principles.)

 

The jurisdiction issue

The Secretary of State argued that under s.57 FOIA, the First-Tier Tribunal only has jurisdiction over a decision notice issued by the Commissioner under s.50(3)(b) FOIA, and that the Commissioner had no jurisdiction to serve a decision notice on the issue of whether a body is a public authority. Section 50 is based on the premise that a request has been made to a public authority; these elements are anterior to the Commissioner’s jurisdiction and he has no authority to decide them within the framework of FOIA.

The UT rejected these arguments. It took the view that jurisdictional provisions are routinely based on certain assumed conditions, but this does not deprive the body in question of the jurisdiction to decide whether those conditions have been met. So the UT’s jurisdiction to hear an appeal on any point of law arising from a decision made by the FTT assumes that a decision has been properly made by a properly-constituted tribunal, but it does not mean that the UT cannot rule on whether those conditions are met in a given appeal (para 31).

The UT applied this reasoning to both a positive decision by the Commissioner that a body is a public authority, and a negative decision that it is not, even though the latter is not a decision notice under s.50(3) FOIA. To hold otherwise would mean that while a body could appeal against a positive decision, a requester would face the more expensive route of judicial review of a negative decision (para.37). Furthermore, the Commissioner would have no power under the similarly structured s.51 FOIA to require the information he needed to reach an informed decision that a body was not a public authority (para. 41).

After scrutinising the decision of the House of Lords in BBC v Sugar [2009] 1 WLR 430, the UT decided that there was nothing in the case that disturbed its conclusions on the point (paras.43-54).

The Commissioner therefore has jurisdiction to decide the issue, the FTT to hear appeals against his decisions and the UT to hear appeals against the decisions of the FTT.

The public authority issue

Two of the limbs of the definition of ‘public authority’ under the EIR were in issue. A finding that the companies fell within either would suffice to make them public authorities. (A little care is needed with the numbers of the provisions in question: Article 2(2)(b) of the Environmental Information Directive is transposed as Reg. 2(2)(c) of the EIR, and Article 2(2)(c) of the Directive as Reg. 2(2)(d) of the EIR.)

 

Persons performing public administrative functions – the ‘special powers’ test

The CJEU expanded on Art. 2(2)(b) of the Directive by explaining that persons ‘performing public administrative functions’ are

52 […] entities, be they legal persons governed by public law or by private law, which are entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.

Only the parts underlined were in dispute in the case of the water companies, which clearly meet the rest of the test.

The UT declined to draw any conclusion from the fact that the CJEU had not seen fit to apply the principles to the facts of this case (paras. 99-100). It also rejected a suggestion that it should ask itself whether the companies’ powers were in the nature of State powers (as the Advocate General had suggested). That was because the definition of ‘State powers’ was unclear and ever-changing, and also because the CJEU had not adopted that test. In the end, however, the UT did adopt the State powers test ‘as a check’ – leaving the status of the test somewhat unclear (paras.113-117).

The main analysis focussed on the following powers of water companies:

Compulsory Purchase (under s.155 of the Water Industry Act 1991, “WIA”): this looks like a quintessential government power unavailable to ordinary citizens, but in fact the water companies enjoy the power at one remove: before exercising it they require authorisation by the Secretary of State, which they can apply for via a process set out in Schedule 11 to the WIA. Nonetheless, the provisions conferred a real, practical advantage on the water companies. Firstly, the application process afforded them privileged access to those advising the Secretary of State on whether to authorise a compulsory purchase. Secondly, it conferred significant commercial leverage on the companies in any negotiation to purchase land, even if they rarely resorted to it in practice (para 107).

Power to make byelaws (s.157 WIA): such byelaws  require confirmation from the Secretary of State, but as with compulsory purchase, the power still confers an advantage on the companies. The section confers power beyond that of any private landowner, since byelaws under s.157 can be backed by criminal sanctions, unlike a landowner’s licence. ‘Special powers’ extends to ‘special powers of enforcement’ (para. 110).

Power to lay pipes (s.159 WIA): this power was the subject of a detailed comparison with the powers ordinarily available under private law. The companies argued that the same powers could be acquired through a license or easement. While accepting that this was potentially so, the UT emphasised that private law typically requires consent of the parties to achieve such a result (through the law of contract or property). By contrast, the WIA gives the water companies effective power to compel this result (para.121).

Power to enter land (s.168 WIA): although there are powers within private law allowing entry to another’s land (eg self-help to abate a nuisance at common law), they are narrowly circumscribed (eg they require possession of neighbouring land). The water companies’ powers are both wider and deeper: they apply against any landowner in the company’s area of license, and they extend to surveying and even boring on the land (para.125).

Hosepipe bans (ss.76-76C WIA): these powers are unlike anything available at private law, and moreover are backed by criminal sanctions.

Since it was content that the companies enjoyed a cluster of special powers, the UT formally left open the question of whether one would have been enough (see para. 105). However its comment in conclusion that the powers mentioned were ‘sufficient, collectively in themselves and as examples of powers of the same type’ to meet the test (para. 130) suggests that some pattern of powers will probably be necessary before a body is considered a public authority.

 

Persons under the control of public authorities

The CJEU’s elaboration of Article 2(2)(c) set out the test for ‘control’ in the following terms:

68 […] this third, residual, category of public authorities covers any entity which does not determine in a genuinely autonomous manner the way in which it performs the functions in the environmental field which are vested in it, since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on the entity’s action in that field.

The test applies to the manner in which functions are performed, not the functions themselves: a body is not under control of the Government merely because its powers derive from statute (para. 133). There are two elements to the test: the body must (i) operate in fact in a non-autonomous manner, and (ii) do so because a public authority is in a position to control it (para. 134). In other words, although the public authority need not actually be exercising its powers of control, the existence of the powers must have a real constraining effect on the body in question (para.135). Furthermore, the test required the UT to look at the companies’ overall manner of performing their environmental services: it would not be enough to find control in ‘one or two marginal aspects of their business’ (para. 136).

As for prior authorities, Smartsource was simply no longer relevant: the task of the UT was to consider the issue afresh in the light of the CJEU’s ruling (para.137).

The UT was at pains to point out that ‘no legitimate business has complete freedom of action’: all operate in a framework of legal and commercial constraints. Something more is needed before one can say that they have lost their autonomy (paras 142-144).

The two counsel for the requesting parties sought to supply that ‘something more’ by advancing ‘macro’ and ‘micro’ examples of actual state intervention in the water industry: recommendations by the Secretary of State made on reviewing a Draft Water Resources Management Plan, and an enforcement notice issued by OFWAT in respect of the risk of sewer flooding in the Penketh area. These were dismissed as no more than ‘increased intensity of oversight at particular times and in respect of particular activities’ (para.148).

A list of potential interventions was also provided – an analysis of the Secretary of State’s powers under the WIA. Although these clearly put the Secretary of State ‘in a position to exert decisive influence’ over the water companies’ actions, they too were rejected as not demonstrating control. The UT’s first two reasons are a little puzzling. The first was that the powers are (to some extent) a substitute for the forces of competition, since water companies enjoy local monopolies (para. 151). This rather begs the question: the grant of a monopoly confers great power on a private entity, which needs to be limited in the public interest. Just because state control is a substitute for market forces, this does not stop it from being a form of control. The second reason was that ‘the risk of enforcement is at most only a marginal consideration for a reputable company’ (para.152). Really? Why then did OFWAT need to issue that enforcement notice for the Penketh sewers?

However, the UT went on to find that whatever the potential for intervention, the more basic aspect of the control test was not satisfied. Merely listing all the possible interventions distorted the picture of how the companies operate in fact, and only addressed the second element of the test. The UT’s overall conclusion on the control test was that ‘despite the extent to which there is scope to influence the companies’ decision-making on the way it delivers its services, the evidence does not show that that influence is actually exerted to such an extent that overall the companies lack genuine autonomy (para.153).

You might not have predicted this result if you had read the CJEU’s heavy hint on the question of control – see [71] of its judgment

The weight that the UT afforded to the companies’ status as ordinary private companies is one of the surprises of the judgment. And it will be one of the few points of comfort for other privatised utilities. Not many can be as heavily regulated as the water industry; perhaps they too can avoid at least this limb of the definition.

 

POSTSCRIPT: if you’ve come here from Robin’s post, you may be wondering what Lewis Carroll has to do with all this. Loyal reader (which you must be if you’ve got this far), your guess is as good as mine. Why is the section on the State powers test (paras. 113-117) headed ‘Hunting of the Snark’? Answers on an e-postcard please.

 

 Peter Lockley

 

 

 

Leviathan

Posted on | by Robin Hopkins

Hot off the press: the Upper Tribunal has given its judgment in Fish Legal.

Applying the principles from the CJEU’s judgment of December 2013, it has held that the respondent water companies are public authorities for the purposes of the Environmental Information Regulations 2004, by virtue of their “special powers”.

The issues and facts are complex, and the judgment is lengthy. It also makes reference to Lewis Carroll, who now somehow appears in two consecutive Panopticon posts.

The judgment is contained in these two documents: FISH LEGAL UT DECISON PART 1 and FISH LEGAL UT DECISON PART 2.

Analysis  of the judgment will follow on Panopticon shortly (thus the barrister dreamed, while the bellowing seemed to grow every moment more clear).

Robin Hopkins

Down the Rabbit Hole – Late Reliance under FOIA

Posted on | by Christopher Knight

Says the White Rabbit in Alice in Wonderland, “Oh my furry whiskers, I’m late, I’m late, I’m late!” Although the application of FOIA may sometimes feel like Wonderland, the feeling it induces is normally more akin to turning up unexpectedly at the Mad Hatter’s Tea Party (although attributing FTT judicial figures to the characters of the Mad Hatter and the Dormouse is beyond me). But one thing that has, since Birkett v DEFRA [2011] EWCA Civ 1606, not generally proved very controversial is the question of late reliance on exemptions; the White Rabbit need have little fear. Birkett made clear that late (usually after the DN and in the course of litigation before the FTT) reliance on substantive exemptions is permissible, subject to case management powers, under the EIR. The unappealed equivalent decision under FOIA, Information Commissioner v Home Office [2011] UKUT 17 (AAC), has generally been assumed to be correct.

However, there is a generous ‘but’ involved, about which lawyers are second only to Sir Mixlot in their appreciation. Can one rely late upon an exemption in Part I of FOIA? There has been a conflict of FTT and Upper Tribunal authority on the point. Independent Police Complaints Commission v Information Commissioner [2012] 1 Info LR 427 had held that there could be late reliance on section 12. The Upper Tribunal in All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner & Ministry of Defence [2011] UKUT 153 (AAC); [2011] 2 Info LR 75 expressed the clear, if obiter, view that section 12 was not in the same position as substantive FOIA Part II exemptions because it had a different purpose; section 12 is not about the nature of the information but the effect on the public authority of having to deal with the request. The scheme of FOIA was likely to be distorted, the Upper Tribunal held, if the authority could suddenly rely on section 12 after already having carried out the search and engaged with the requestor: at [45]-[47]. The APPGER approach was accepted by the FTT in Sittampalam v Information Commissioner & BBC [2011] 2 Info LR 195. There was at least a school of thought that the APPGER logic ought also to apply to section 14 (which, as was explained in Dransfield, is not properly an exemption at all: at [10]-[11]). Then, in Department for Education v Information Commissioner & McInerney (EA/2013/0270), Judge Warren firmly concluded that section 14 (and by implication section 12) could be relied upon late. I suggested at the time that the conflict of authority on the point might require appellate resolution, and Ms McInerney appealed on that basis (in partial reliance, it appears, on my blogpost: see at [22] of the UT judgment).

 The appeal in McInerney v Information Commissioner and the Department for Education [2015] UKUT 0047 (AAC) has now been determined by Judge Jacobs (who heard the Birkett and Home Office cases). It has definitively resolved that a public authority may rely on sections 12 or 14 for the first time before the FTT, subject to the case management powers of the FTT. Although the judgment of the Upper Tribunal is fairly lengthy, the key part of the analysis is fairly brief. Judge Jacobs considered the principles derived from Birkett overtook the reasoning in APPGER, that the discussion of principle in his Home Office decision applied equally to the Part I exemptions, that section 17(1) did not prevent late reliance, that there was nothing in section 12 to require a different answer, and that late reliance may be forced on a public authority for good reasons (such as the instant appeal): at [33]-[41]. The Upper Tribunal did not consider it necessary to review the various FTT decisions. If section 12 is relied upon before the FTT for the first time, it will be the FTT which has to review the reasonableness of the estimate: at [40]. The Upper Tribunal considered that the answer on section 14 followed naturally from the answer on section 12.

 The position now at least has the benefit of consistency. Requestors will doubtless continue to be extremely frustrated by public authorities who appear to change their position at the last moment (usually when lawyers have become involved), and the FTT does not appear to have been often exercising its powers to restrict late reliance, or to punish incorrect late reliance in costs. However, if an exemption is relied upon correctly, reaching the correct answer is important. Whiskers may soothed, pocket watches stowed away, and lateness need rarely be an issue.

 Also of some practical interest will be the discussion of Judge Jacobs on the interaction of sections 14 and 16. It might be thought difficult to see how the section 16 duty could really apply to a vexatious request (“we advise you to submit a request which is not vexatious” perhaps?). Judge Jacobs accepted at [55] that a request should not have to be dissected to see if it can be severed, because that would undermine the purpose of section 14, but that section 16 cannot be ignored. The circumstances might allow a public authority to extract one part to create a non-vexatious request: at [56]. This is a little hard to understand; it might be thought the better analysis would be that properly construed, that one part was not a vexatious request, and it is not clear whether section 16 adds much. He added that it is not for the FTT to apply section 16 to assist a requestor – only the public authority is obliged to do so: at [57]-[58].

 Andrew Sharland appeared for the DfE and Robin Hopkins appeared for the ICO.

 Christopher Knight