Property searches under the EIRs: Tribunal refers questions to the CJEU

Posted on | by Robin Hopkins

The ability to impose charges for the provision of property search information is an important financial issue for many local authorities. Historically it had been thought by many that the imposition of such charges was governed by the Local Authorities (England) (Charges for Property Searches) Regulations 2008 (“CPSR”), which allow local authorities to recover all the costs of making such information available (including staff costs, overhead costs and the costs of maintaining relevant information systems). However, in recent years there has been an increasing awareness of the fact that requests for property search information to a large extent amount to requests for access to environmental information, such that they call for an application of the charging regime provided for in r. 8 of the Environmental Information Regulations 2004. The CPSR itself specifically provides that it does not apply to the provision of any information which is governed by other statutory charging regimes. Accordingly, it would seem that the CPSR is inapplicable in respect of requests for property search information insofar as those requests are made under the EIR.

Regulation 8 EIR allow reasonable charges to be imposed for making environmental information available, save that no charge may be imposed for permitting access to public registers or examining the requested information in situ. The question of when a public authority can impose charges and also what will constitute a reasonable charge has now been considered by the tribunal in a number of different cases, all of which concerned requests for property search information (see e.g. Kirklees Council v IC & Pali Ltd [2011] UKUT 104 (AAC) and also East Riding of Yorkshire v IC).

Earlier this year, in Leeds City Council v IC & APPS Claimants (EA/2012/0020-21); [2013] 1 Info LR 406, the First-Tier Tribunal was asked to decide whether, when making environmental information available other than by means of inspection or through public registers, the local authority was entitled under r. 8 to charge only for disbursements (the Commissioner’s case) or whether other costs, such as the cost of staff time spent searching for the requested information and overhead costs, could be factored into the charge (the Council’s case). Having carefully considered not only r. 8 but the provisions on charging in the Directive on Public Access to Environmental Information (“the Directive”), the FTT concluded that public authorities could only charge in respect of disbursement costs. It also held that Leeds had erred in determining the charge by reference to the CPSR. Leeds initially sought and was granted permission to appeal against the decision. However, the appeal was not pursued. Notably, the Commissioner argued before the FTT in the Leeds case that the question of what would constitute a lawful charge could not satisfactorily be resolved without a reference to the Court of Justice of the European Union. That argument was not supported by Leeds or the APPS claimants. The FTT decided that it could resolve the appeal without a reference and so none was made.

These issues have now resurfaced before the First-Tier Tribunal in East Sussex County Council v IC & Property Search Company & the Local Government Association (EA/2013/0037), another property search case. In this case, the applicant requested answers to questions in the standard property search form issued by the Law Society, the CON29R form. The Council imposed a fixed charge for providing this information, the fixed charge having been calculated on the basis of the approach provided for in the CPSR (i.e. was a charge which was intended to produce a cost neutral result for the Council). The charge itself factored in not only disbursement costs, but also staff time, a portion of the Council’s overhead costs, office costs and a portion of the costs of maintaining the information systems from which the relevant information is derived.

In light of an analysis of preparatory legislative materials for the Directive, the Commissioner conceded that costs beyond mere disbursement costs could in principle be factored into the charge. In particular, he argued that staff time spent searching for the information could be included. However, he disputed that other costs (e.g. overheads, office costs and the costs of maintaining the relevant information systems) could lawfully be included. However, the Commissioner’s position before the FTT was that, notwithstanding his concession, there remained substantial uncertainty as to what constituted a permissible charge under the Directive and a reference to the CJEU was still warranted. The other parties to the appeal ultimately agreed that this was an appropriate course.

The FTT has now decided that there should be a reference for a preliminary ruling. The questions being referred are:

(1) What is the meaning to be attributed to Art 5(2) of Directive 2003/4/EC and in particular can a charge of a reasonable amount for supplying a particular type of environmental information include:

(a) part of the cost of maintaining a database used by the public authority to answer requests for information of that type;

(b) overhead costs attributable to staff time properly taken into account in fixing the charge?

(2) Is it consistent with Arts 5(2) and 6 of the Directive for a Member State to provide in its regulations that a public authority may charge an amount for supplying environmental information which does “… not exceed an amount which the public authority is satisfied is a reasonable amount” if the decision of the public authority as to what is a “reasonable amount” is subject to administrative and judicial review as provided under English law?”

Hopefully the CJEU will in due course agree to give a preliminary ruling. In the meantime, local authorities and those engaged in the property search industry will have to wait with baited breath.

Anya Proops acts for the Information Commissioner.

Robin Hopkins @hopkinsrobin

High Court to consider Data Protection Act bid to halt reporting of corruption allegations

Posted on | by Jason Coppel KC

Can the Data Protection Act 1998 (“DPA”) be used to prevent a respected NGO from reporting allegations of corruption by a multi-billion dollar international mining conglomerate?  That is the stark question posed by Steinmetz and others v Global Witness Limited, a recently issued High Court DPA Claim. 

Depending on which side of the litigation you are on, the Claim is an orthodox, if novel, attempt to stop the reporting of unfounded and damaging allegations of corruption brought by individuals whose names have been mentioned in accounts of those allegations.  Or an abusive attempt to prevent legitimate, public interest reporting, which threatens to censor the investigative and reporting activities of a vast swathe of NGOs.  

The Claim has been brought against the NGO Global Witness by four individuals reportedly associated with BSG Resources Limited (“BSGR”), a mining conglomerate whose interests include 50% of the Simandou iron ore reserve in Guinea.  Global Witness is a Nobel-prize nominated organisation which investigates and reports on natural-resource related conflict and corruption around the world.  Since November 2012, it has reported allegations that BSGR’s share in the Simandou reserve, one of the largest and most valuable in the world, was obtained by corruption.  These corruption allegations are currently being investigated by the Government of Guinea and by a US Federal Grand Jury.

The four Claimants are individuals who claim links with BSGR, and have been named by Global Witness in its reporting on the Guinea corruption allegations.  They include Beny Steinmetz, reported by the international media to be the founder of BSGR.  The four have made subject access requests under s. 7 DPA to obtain any personal data about them which is being held by Global Witness, have complained to the Information Commissioner (“ICO”) about non-compliance with their requests, and have now issued proceedings making various DPA claims against Global Witness, seeking declarations, disclosure, deletion of personal data and damages. https://www.bsgresources.com/bsgr-guinea/bsgr-guinea-analysis-reports/claim-filed-against-global-witness/

If successful, the Claim would prevent Global Witness from continuing to investigate and to report on the corruption allegations in connection with BSGR, and indeed from investigating and reporting on any similar allegations in the future.  The relief sought from the Court includes, in particular: 

–          An order under s. 7(9) DPA that Global Witness discloses all of the personal data held about the Claimants.  Mr Steinmetz maintains that any data relating to BSGR is necessarily his personal data, and similar but less expansive claims are maintained by the other Claimants. 

–          An order under s. 10 DPA that Global Witness ceases to process any of the Claimants’ personal data (which would mean, on the Claimants’ case, that it could not report any allegations about BSGR).  This relief is founded, in part, upon an allegation that the data was obtained from a person or persons who were not authorised to provide it and so invites the Court to investigate Global Witness’s sources. 

–          An order pursuant to s. 14 DPA that Global Witness rectifies, blocks, erases or destroys data held which the Court is satisfied is inaccurate.  This claim seeks to use the DPA in effect to mimic a claim for libel, inviting the Court to make findings on the truth of the corruption allegations reported by Global Witness.  

–          Damages for distress etc. caused to the Claimants.

For its part, Global Witness maintains that the Claim has been brought for collateral and illegitimate purposes and is an unwarranted attack on its freedom of expression.

Section 32 DPA exempts from each of the provisions relied upon by the Claimants data which are processed “only for”  “journalistic purposes”.   So a similar claim could not be maintained against an organisation like a newspaper which was engaged only in journalistic activities.  But the Claimants will presumably contend that because Global Witness is not a journalistic organisation but also engages in, for example, campaigning activities, s. 32 does not apply to their personal data which it holds.  If that is correct, the reporting activities not just of Global Witness but of a whole range of NGOs who campaign as well as engage in what they regard as public interest reporting could be subject to similar attack in reliance upon the DPA. Global Witness argues that it is not correct, and will rely upon the s. 3 Human Rights Act 1998 duty to interpret s. 32 DPA in a manner which is compatible with its freedom of expression.  So the Claim raises the stark issue of how the balance is to be struck under the DPA between the privacy rights of the Claimants and the freedom of expression of Global Witness.  Global Witness intends to apply to stay the proceedings pursuant to s. 32(4) DPA in a little-known  procedure which would require the ICO to decide on the application of s. 32 to the disputed data.  Other defences pursued by Global Witness also rely upon its right to freedom of expression under Article 10 ECHR.

Section 32 DPA is a relatively unexplored provision so far as UK courts and tribunals are concerned.  But it was subject to the detailed consideration by the Leveson Inquiry, which has in turn resulted in the ICO taking a close interest in its application.  The ICO is proposing to issue guidance to media organisations on their reliance upon s. 32:

https://ico.org.uk/news/latest_news/2014/~/media/documents/library/Data_Protection/Research_and_reports/data-protection-and-journalism-a-guide-for-the-media-draft.pdf The outcome of the Global Witness litigation will no doubt have a significant influence on the position ultimately adopted by the ICO.

Even if the Claim is ultimately unsuccessful, the prospect of expensive High Court litigation against individuals with deep pockets could have a chilling effect on the activities of NGOs like Global Witness.  It remains to be seen how the Courts and the ICO will react to what Global Witness argues to be an abuse of the DPA in order to attack legitimate, public interest investigation and reporting which would be protected from such attack if carried out by a traditional news organisation.

Anya Proops of 11KBW represents Global Witness, instructed by Mark Stephens of HowardKennedyFsi

Jason Coppel QC

Use of disclosed documents

Posted on | by James Goudie KC

The important general principle is of course that a party to whom a document has been disclosed in litigation may use that document only for the purpose of the proceedings in which it is disclosed.  There are, nonetheless, three significant exceptions to that principle, set out in CPR r31.22(1).  They are (a) where the document has been read to or by the Court, or referred to, at a hearing which has been held in public; (b) where the Court gives permission; or (c) where the party who disclosed the document and the party to whom the document belongs agree.   However, r31.22(2) provides that the Court may make an Order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the Court, or referred to, at a hearing which has been held in public.  An application for such an Order was considered by the High Court in Smith & Nephew PLC v Convatec Technologies Inc [2014] EWHC 146 (Pat).  Birss J granted a Permanent Order prohibiting the use after trial of certain documents which had been disclosed during patent infringement proceedings.  The documents covered by the Order included those which made reference to commercial strategy or to manufacturing processes.  The nature and details of the claimants’ secret processes had to be explored in the proceedings.  Justice could not be done without it.  A number of those documents played a crucial role in Court, but the outcome could be understood without them.  The documents covered by the Order did not, however, include documents which related to the claimants’ dealings with regulatory authorities, which went to a springboard injunction question.  Although the claimants had built up very substantial experience and know-how in dealing with regulatory authorities, disclosure of those documents would not reveal that know-how or damage the claimants at all.

An Order restricting use of disclosed documents referred to in Court is consistent with it being “highly desirable” (para 11) to avoid trials in private or partly in private, as was recently reiterated by Lord Neuberger in Bank Mellat v H. M. Treasury [2013] UKSC 38 at para 2.

What’s in a name? – Court of Appeal gives judgment in Edem

Posted on | by Anya Proops KC

Deciding whether information which arguably relates to an individual amounts to their ‘personal data’ for the purposes of s. 1(1) of the Data Protection Act 1998 is one of the more challenging aspects of the DPA regime. In making the judgment call in any particular case, data controllers have routinely looked to the guidance set out Auld LJ’s judgment in the well known case of Durant v Financial Services Act [2003] EWCA Civ 1746, [2011] 1 Info LR 1. In his judgment, Auld LJ indicated that there were two ‘notions’ likely to be of assistance when it came to determining whether particular data was sufficiently ‘personal’ that if tell within the scope of the DPA:

‘The first is whether the information is biographical in a significant sense, that is, going beyond the recording of the putative data subject’s involvement in a matter or an event that has no personal connotations, a life event in respect of which his privacy could not be said to be compromised.  The second is one of focus.  The information should have the putative data subject as its focus rather than some other person with whom he may have been involved or some transaction or event in which he may have figured or have had an interest, for example, as in this case, an investigation into some other person’s or body’s conduct that he may have instigated.  In short, it is information that affects his privacy, whether in his personal or family life, business or professional capacity.’ (§28)

Auld LJ’s conclusion that the information must be something which affects the data subject’s privacy is of course unsurprising. As is made clear by the recitals to Directive 95/46/EC (from which the DPA is derived), the core aim of the Directive is to protect our fundamental right to privacy in the context of the management of our data. If particular data does not meaningfully touch on our privacy, then in a sense why should it fall within the ambit of the legislation at all?

So what then is the position in respect of data which records a person’s name? Is that information automatically ‘personal data’ because it is a name which both in a sense identifies and relates to a particular individual? Or does that data have to arise in some form of context whereby it tells you something informative about that individual beyond merely what their name is? This was precisely the issue which the Court of Appeal had to consider in the recent case of Edem v IC & Financial Services Authority [2014] EWCA Civ 92.

In Edem, Mr Edem had made a number of complaints to the FSA concerning its regulation of a particular company. Mr Edem then sought disclosure from the FSA of information about him and his complaints. The sole issue which the Court of Appeal had to consider was whether information amounting to the names of three individuals within the FSA who had worked on the complaints constituted their ‘personal data’ under s. 1(1) DPA. The individuals in question were all junior employees who did not have public facing roles.

The Court of Appeal came down firmly in favour of the conclusion that the names per se constituted ‘personal data’. Moses LJ, with whom Beaton LJ and Underhill LJ agreed, held that:

‘A name is personal data unless it is so common that without further information, such as its use in a work context, a person would remain unidentifiable despite its disclosure’ (§20).

The Court of Appeal sought to reconcile this conclusion with the approach adopted by the Court of Appeal in Durant by saying that the Court of Appeal in Durant was looking at a different issue, namely whether information which did not on its face concern or name Mr Durant was still his personal data because it related to a complaint which he had made to the FSA (§§18-20). The Court went on to find that the ‘notions’ identified by Auld LJ in §28 of his judgment in Durant were of no relevance to a case where what was in issue was information comprising a person’s name, as that information was always intrinsically ‘personal data’, unless it was such a common name that considered on its own it had to be regarded as being effectively anonymous.

Importantly, the Court of Appeal went on to cite with approval the following extract from the Commissioner’s Technical Guidance on the definition of personal data:

‘“6.         It is important to remember that it is not always necessary to consider ‘biographical significance’ to determine whether data is personal data.  In many cases data may be personal data simply because its content is such that it is ‘obviously about’ an individual.  Alternatively, data may be personal data because it is clearly ‘linked to’ an individual because it is about his activities and is processed for the purpose of determining or influencing the way in which that person is treated.  You need to consider ‘biographical significance’ only where information is not ‘obviously about’ an individual or clearly ‘linked to’ him.”

The judgment is important for a number of reasons. First, it suggests that the Durant guidance must not be treated as embodying golden rules of universal application. This is likely to trouble many data controllers who have in the past approached Durant as it if had biblical authority. Second, it marks a clear judicial endorsement of the fairly generous approach to the construction of the term ‘personal data’ embodied in the ICO’s guidance. What remains to be seen is how the judgment will be held to apply to cases which do not involve such patently identifying information.

Robin Hopkins represented the ICO. Jason Coppel QC represented the Financial Conduct Authority.

Anya Proops

11KBW Information Law Conference, 18th March 2014

Posted on | by Panopticon Blog

11KBW is very pleased to announce that its annual Information Law Conference will be held on 18th March 2014 at the Royal College of Surgeons of England. The conference will cover a range of topical issues including surveillance law in the post-Snowden world, the relationship between information rights and the Article 10 right to freedom of expression and the controversial role played by the FOIA veto.  The conference will also include case-law updates on FOIA, the EIR and the DPA. This year we are delighted to welcome Upper Tribunal Judge Nicholas Wikeley as our keynote speaker.

The full programme can be accessed here.

CPD

The conference will be accredited 4.5 hours CPD – SRA/BSB

Cost

£99 + VAT (20%) = £118.80 to attend half day plus lunch

£150 + VAT (20%) = £180.00 to attend full day

How to Book

To book your place on this conference please email RSVP@11kbw.com with the delegate name, firm, email address and any purchase order details you may require. You will be then sent a confirmation email of your place and invoiced. We do not have the facilities to accept payments by credit or debit cards.

Closed procedure guidance: the Browning version

Posted on | by Robin Hopkins

Reference to closed material is inherent in FOIA litigation. Some element of closed procedure is usually also needed. But how are these closed aspects to be approached so as to accord with principles of justice, fairness and openness?

I blogged last year on the case of Browning v IC and DBIS [2013] 2 Info LR 1, in which the Upper Tribunal appeared to answer those questions. A curious feature of that judgment was that the Upper Tribunal said it was not giving guidance on closed material/procedures, whereas the substance of its judgment seemed to contain precisely that.

The coming months will bring greater clarity. The Court of Appeal has recently given permission to appeal in Browning.

Panopticon understands that the appeal is likely to be heard in the first half of 2014, that it will be heard by three Lord/Lady Justices of Appeal and that consideration is to be given to including among those three the Master of the Rolls or the Vice-President of the Court of Appeal (Civil Division). All of these factors seem to point towards the considerable importance which is – rightly – being attached to the issues concerning closed material and procedures in FOIA/EIR litigation.

Panopticon will report further – on an open basis – in due course.

Robin Hopkins @hopkinsrobin