Prince Charles, the Guardian and the Unreasonable Veto

Posted on | by Christopher Knight

As promised last week, this post contains a slightly fuller account of the Court of Appeal’s judgment in R (Evans) v HM Attorney General [2014] EWCA Civ 254. The history of the case is manifold and has been covered on this blog innumerable times (see: here, here and here). In essence, the Upper Tribunal held in a very lengthy judgment that some of the correspondence written by Prince Charles to various governmental departments ought to be disclosed in the public interest. The Attorney General then issued his statement of reasons under section 53 FOIA, which has the effect of vetoing the judicial decision. On any view, the veto is a highly unusual provision. The Divisional Court dismissed the judicial review of that veto. Mr Evans, a Guardian journalist, appealed.

The Court of Appeal allowed the appeal, with Lord Dyson MR delivering the leading judgment. It accepted that two persons may each have different but reasonable views of an answer to a question such as the balance of public interests. But where one of those bodies was an independent and impartial tribunal or court which had conducted a full examination of the issues, for the AG to have “reasonable grounds” to take a different view (as section 53(2) requires) he must be able to show that the tribunal had demonstrably erred in law or fact, or that there had been a material change of circumstances. Neither of those applied in this case: at [37]-[39]. The statement of reasons was accordingly unlawful. The Court applied an analogy from cases taking this approach in the planning and immigration context.

The Court’s view certainly exercises a control over the veto. The two examples it gives for a veto role are apparently intended to be narrow ones. A demonstrable error seems to permit a veto only where an appeal would clearly be successful. A material change in circumstances seems a particularly difficult category to apply where the long-standing principle of FOIA is that the public interest is adjudged as at the time of the request. The Court of Appeal did, however, grant permission to appeal to the Supreme Court, so this judgment will not be the last word on the matter.

Some of the information requested, although it is not publicly known how much, was environmental information under the EIR. The Court of Appeal agreed with Mr Evans that the right to an effective remedy under the Directive and the European Charter precluded the use of a veto of a final and binding court decision. Judicial review was not an adequate remedy in this sense because it was directed at the veto, and not the underlying decision to refuse the request for information: at [55]. A veto meant that the court or tribunal decision was not final or binding, because a judicial review may not be bought or it might fail on procedural grounds, and in any event would not bind the original refusing department because it would not be a party to the veto proceedings: at [56]. Moreover, a veto also meant that there was not an effective remedy before a court which was Article 6 ECHR compliant, in the sense that the principle of legal certainty and finality of judgments was undermined, and that there was an inequality of arms because a requestor cannot veto a tribunal decision which rules against him: at [57]-[66].

The Court held that the entirety of the statement of reasons had to be quashed on this basis too because the AG had not carried his own public interest balancing exercise which reflected the greater public interest in disclosing the non-EIR material once the EIR material had been disclosed.

Lord Dyson MR did not feel it necessary to decide whether Wednesbury review was sufficiently flexible to comply with the standard required by the Directive (in particular, whether Sullivan LJ had been right in Birkett v DEFRA [2011] EWCA Civ 1606 at [23] to suggest a de novo hearing was required) given his reasoning more generally, but suggested that had it been necessary to decide the point he would have had to make a reference to the CJEU: at [73].

Evans has contributed a large amount to information law jurisprudence, and with an appeal to the Supreme Court to come, it is the gift that keeps on giving…

Christopher Knight

Stop Press: FOIA Veto Quashed

Posted on | by Christopher Knight

The Court of Appeal has today handed down a unanimous judgment in R (Evans) v HM Attorney General [2014] EWCA Civ 254 overturning the Divisional Court and quashing the veto issued by the Attorney General. The veto was quashed both because the AG did not have reasonable grounds to issue it in the light of the Upper Tribunal judgment, and because it was incompatible with EU law to veto disclosure of information under the EIR.

A fuller summary and discussion will follow in due course, but the first JR of a section 53 veto has been successful on appeal. The Court of Appeal has granted permission to appeal to the Supreme Court.

Jonathan Swift QC and Julian Milford appeared for the AG; Timothy Pitt-Payne QC appeared for the ICO.

Now with added link to judgment: here.

FOIA disclosures: ‘motive blindness’ and risks to mental health

Posted on | by Robin Hopkins

Some FOIA ‘mantras’ frustrate requesters, such as judging matters as at the time of the request/refusal, regardless of subsequent events. Others tend to frustrate public authorities, such as ‘motive blindness’. A recent Tribunal discusses and illustrates both principles – in the context of the distress (including a danger to mental health) likely to arise from disclosure.

The background is that a certain pupil referral unit (PRU) in County Durham was the subject of complaints; 13 of its 60 staff had been suspended. An independent investigation team reported in November 2012. Later in that same month, the Council received a FOIA request for a copy of the investigators’ report. At that time, disciplinary proceedings were pending against each of the suspended members of staff. Those proceedings were to be conducted on a confidetial basis.

The Council refused the request, relying on section 31 (prejudice to conduct of function for purpose of ascertaining any improper conduct), section 40 (personal data) and 38 (health and safety). The ICO agreed, and so has the Tribunal, dismissing the requester’s appeal in Hepple v IC and Durham County Council (EA/2013/0168).

The Tribunal confirmed that, notwithstanding the appellant’s practical arguments to the contrary, it had to judge matters as they stood at the time of the Council’s refusal of the request (paras 4-7).

Section 31 was engaged: “We are satisfied, having read the Report in full, that disclosure in full would have given rise to a perception of unfairness and pre-judgement that would have prejudiced the disciplinary proceedings. Those deciding the complaint might have avoided being prejudiced but the perception of a disinterested third party would have been that the staff member’s right to a fair hearing had been undermined, particularly if publication had attracted media comment” (para 14). The public interest favoured maintaining the exemption.

Reliance on section 40(2) was upheld: the unwarranted interference to the data subjects prevailed over public interest arguments. The comparative balance may have shifted slightly since the date of the refusal, but that was not the relevant time for the purposes of the appeal.

Reliance on section 38 was also upheld. This exemption for health and safety (here, danger to mental health) seldom surfaces in FOIA caselaw. Here it was upheld, largely because the requester himself had sent certain text messages (for which he was later apologetic) to some of the individuals involved. The Tribunal “drew the clear impression that the texts had been transmitted with the purpose of menacing those whose addresses the Appellant had acquired” (para 37).

Those text messages were sent after the refusal of the request, but the Tribunal was satisfied that they evidenced a state of mind likely to have existed at the relevant time. As to ‘motive blindness’, the Tribunal said that “assessing an information request on this “motive blind” basis ought not to prevent us from considering the potential risk to safety posed by the requester him/herself”.

‘Motive blindness’ may be something of a mantra in FOIA cases, but – as with vexatious request cases – it is a principle which should be applied with appropriate nuance.

Robin Hopkins @hopkinsrobin

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.