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PERSONAL DATA, REPEAT AND VEXATIOUS REQUESTS AND INVESTIGATIONS

Posted on | by Rachel Kamm

In Jeffery Lampert v IC and Financial Services Authority EA/2010/0203, the appellant was involved in a long running dispute with a bank, which had called on his guarantee of a loan and commenced bankruptcy proceedings against him. His MP had raised the matter with the FSA and the appellant believed that this had led to at least one investigation of the bank. The appellant subsequently made a freedom of information request for information held by the FSA recording the outcome of investigations into the bank about the matter and the calculation of the bank’s loss. The Information Commissioner found that any information falling within the scope of the request was the appllant’s personal data and therefore absolutely exempt from disclosure under FOIA. The First-Tier Tribunal found that:

  • there had been no investigation by the FSA of the bank and there was no document in existence which contained a calculation of the bank’s loss;
  • any information falling within the scope of the request would not have been the appellant’s personal data; applying Durant, the Commissioner was wrong to decide, in effect, that, merely because the information requested arose from the appellant’s complaints, it all constituted his personal data;
  • the FSA was entitled to rely on section 14(1) FOIA, in that this was a repeat request and a reasonable interval had not elapsed since the previous substantially similar request; and, further
  • there was ample material from which it could be found that the appellant’s request was vexatious.

In Public Prosecution Service for Northern Ireland v IC and John Collins EA/2010/0109, Mr Collins requested the PPS documentation (excluding names and addresses) relating to a particular criminal damage case. It was not in dispute that section 30(1) FOIA was engaged and the only issue for the First-Tier Tribunal was whether the public interest in maintaining the exemption outweighed the public interest in disclosure. The Tribunal accepted that it had to take into account the need for prosecutors to have a safe space in which to decide whether or not a case met the threshold for pursuing a prosecution, without fear of frank assessments being publicised after the event. Eroding this safe space would undermine the independence of prosecution authorities, compromise the quality of decision making, potentially deter witnesses from co-operating and undermine (without good reason) public confidence in those authorities. The Tribunal held that these factors attracted very substantial weight. The Tribunal found, having considered the disputed information, that there was no reason to suspect that the prosecuting authority had made substantial mistakes in this case. The public interest in maintaining the exemption therefore clearly outweighed the public interest in disclosure.

NEW POLITICS, OR SAME OLD STORY?

Posted on | by Timothy Pitt-Payne QC

On 19th May I gave a paper at 11KBW’s Information Law seminar, entitled “Information Law in the new Parliament”.  This was a discussion of the new coalition government’s proposals relating to information law.  On the following day, “The Coalition:  our programme for government” was published, giving  a much fuller account of the new Government’s programme.

I am revising my paper to take account of the new document.  I will be posting the revised paper here, in the course of next week.

FROM BIG BROTHER SOCIETY TO BRAVE NEW WORLD?

Posted on | by Timothy Pitt-Payne QC

The Conservative/Lib Dem coalition agreements are available here.  Under the heading “Civil Liberties” there are a number of points that should interest readers of this blog.  These include:

* the scrapping of the ID cards scheme, the National Identity Register, the next generation of biometric passports and the Contact Point database;

* outlawing the fingerprinting of children at school without parental permission;

*  extending FOIA to provide greater transparency;

* adopting the Scottish model for the DNA database;

*  further regulation of CCTV; and

* ending the storage of internet and email records without good reason.

Taken together these suggest that information law issues will continue to be centre stage in political terms.

The application of FOIA to public service broadcasters

Posted on | by Ben Hooper

Two High Court judgments were handed down last week on what has become known as the BBC’s “derogation” – its limited entry in Sch. 1 to FOIA, under which FOIA applies to the BBC only “in respect of information held for purposes other than those of journalism, art or literature”. Channel 4 and S4C (the Welsh television channel) have entries in Sch. 1 to the same effect.

 

The cases were Sugar v. BBC and BBC v. Information Commissioner. The former concerned a request for an internal BBC report into Middle East reporting, the latter concerned four sets of requests for various items of financial information relating to the BBC’s programme output. In both cases, Irwin J rejected the submission advanced by all parties that a test of dominant purpose should be used when applying the derogation (i.e. that where information was held for a variety of purposes, it would outside FOIA if it was predominantly held for the purposes of “journalism, art of literature”). Instead, Irwin J applied a de minimis approach and held that, on a proper construction of the derogation, “the BBC has no obligation to disclose information which they hold to any significant extent for the purposes of journalism, art or literature, whether or not the information is also held for other purposes.” (See para. 65 of Sugar).

 

It is as yet unclear whether this aspect of the judgments will be challenged on appeal. Unless and until it is, it would seem that the scope for applying FOIA to information held by the public service broadcasters is more limited than was previously thought to be the case.