FROM NAKED PHOTOS TO NUCLEAR ENRICHMENT: ROUNDUP OF NEW TRIBUNAL DECISIONS

September 26th, 2011 by Robin Hopkins

The past week saw a slew of new decisions from the First-Tier Tribunal. Here is Panopticon’s highlights package.

Sections 41 (information obtained in confidence) and 43 (commercial prejudice)

In DBIS v IC and Browning (EA/2011/0044), the requester (a Bloomberg journalist) had sought information from the Export Control Organisation in connection with licences issued for the exporting to Iran of “controlled goods” – explained by the Tribunal as “mainly military, dual use (potentially military), equipment designed for torture or repression or sources of radio-activity”. The relevant public authority, the Department for Business, Innovation & Skills, refused the request, relying on sections 41 and 43. The IC found for the requester on the narrow basis that, whilst disclosure would result in a breach of confidence, no commercial detriment would be suffered by the licence applicants as a result. Subsequent evidence from the Department persuaded the IC to change position and support the appeal, which was resisted by the applicant. In a decision which turned on the evidence, the Tribunal allowed the appeal, and found both sections 41(1) and 43(2) to be effective.

Section 42 (legal professional privilege)

Two recent decisions on this exemption. Both saw the Tribunal uphold the refusal, applying the established approach under which this exemption has a strong in-built public interest. Szucs v IC (EA/2011/0072) involved an FOIA request about an earlier FOIA request (the appellant requested the legal advice and associated documents provided to the Intellectual Property Office about how to deal with a previous FOIA request made by the appellant’s husband). Davis v IC and the Board of Trustees of the Tate Gallery (EA/2010/0185) is eye-catching primarily because it concerned the Tate’s legal advice concerning the inclusion in an exhibition of a photograph of the actress Brooke Shields, aged ten, naked, entitled “The Spirit of America” (the Tate had initially proposed to include this in an exhibition, but ultimately withdrew the photograph).

Section 40 (personal data)

Beckles v IC (EA/2011/0073 & 0074) concerned the identifiability of individuals from small sample sizes, in the context of information about dismissals, compromise agreements and out-of-court settlements. The appellant asked Cambridge University for information on (among other things) the number of employees who received post-dismissal settlements. The answer was a low number. He asked for further details concerning the settlement amounts, rounded to some appropriate non-exact figure. This, said the Tribunal (applying the Common Services Agency/Department of Health approach to identifiability from otherwise anonymous figures) was personal data, the disclosure of which would be unfair. Its reasoning is summed up in this extract:

“Information as to the settlement of a claim made by an identified individual relating to his or her employment is undoubtedly personal data. The question is whether the four individuals or any of them could be identified if the information requested were disclosed, even in approximated form…. Cambridge University is made up of a large number of much smaller academic or collegiate communities. It is likely that a number of colleagues or friends will be aware that a particular individual settled a claim with the University within the time-scale specified. They will be aware of the general nature of that person`s employment. This is a small group of claims in a relatively short period. In the form originally requested it is readily foreseeable that one or more of the four will be identified.”

Sections 24 (national security) and 27 (international relations)

Burt v IC and MOD (EA/2011/0004) concerned information gathered by staff of the UK Atomic Weapons Establishment on an inspection visit to a United States atomic energy facility, as a learning exercise regarding the proposed development of an enriched uranium facility at Aldermaston. The US had expressed its desire to maintain proper confidence in what it regarded as a sensitive area. The MOD refused the request, relying on sections 27 and 24. By the time of the appeal, only a small amount of information had not been disclosed. This was primarily of a technical nature, containing observations about the operation of plant, machinery, procedures and processes at the US facility.

The Tribunal upheld the MOD and Commissioner’s case as regards the outstanding material. As regards section 27, the Tribunal applied the principles from Campaign against the Arms Trade v IC and MOD (EA/2006/00040). It observed, however, that confidential information obtained from another country would not always be protected by section 27: it was “perhaps axiomatic that the foreign State will take the United Kingdom as it finds it including but not limited to the effect of its own domestic disclosure laws. It follows that there may well be cases where information otherwise imparted in confidence from a foreign State to a United Kingdom authority would need to be considered on its own merits as to whether some form of disclosure should be made or ordered whether under FOIA or under similar analogous legislation or principles such as the UK data protection principles.”

As regards section 24, the Tribunal applied Kalman v IC and Department of Transport (EA/2009/0111) (recourse to the exemption should be “reasonably necessary” for the purpose of safeguarding national security), and Secretary of State for the Home Department v Rehman [2003] 1 A 153 (the threat to national security need not be immediate or direct).

Burt is also an example of a “mosaic effect” case: taken in isolation, the disputed information may appear anodyne, but the concern is with how it might be pieced together with other publicly available information.

Section 14(1) FOIA (vexatious requests)

Dransfield v IC (EA/2011/0079) is an example of the Tribunal overturning the Commissioner’s decision that section 14(1) had been engaged (for another recent example, see my post here). As with many such cases, the history and context were pivotal. Given that it is the request, rather than the requester, which must be adjudged to be vexatious, how should the context be factored in? The Tribunal gave this useful guidance:

“There is, however, an important distinction to be drawn between taking into account the history and context of a request, as in the cases referred to above, and taking into account the history and context of other requests made by a requester or other dealings between the requester and the public authority. The former is an entirely proper and valid consideration. The latter risks crossing the line from treating the request as vexatious, to treating the requester is vexatious. That line, in our view, was crossed in the present case.”

Robin Hopkins

 

Launch of Information Law Reports

July 19th, 2011 by Rachel Kamm

 The Information Law Reports launched on 14 July 2011, with the following announcement on 11KBW’s website:

Leading chambers 11KBW and legal publisher Justis Publishing are collaborating in a first for both organisations: the creation of a new series of law reports available both in bound volumes from next week and on the established Justis platform from this morning.

Information law is ever more important, seeking to balance the “right to know” and the “right to be left alone” in an age of massive databases and global information flows. We all want to protect our own privacy; but we also want to understand how public authorities make decisions and spend our money. This new series will help professionals grapple with these issues.

Timothy Pitt-Payne QC, a barrister at 11KBW and one of the editors of the new reports, said: “There is a growing case-law, generated by the specialist Information Rights Tribunal and the higher courts. Navigating this material and quickly identifying the most important recent developments is increasingly challenging. The Information Law Reports seek to meet this need, bringing together all the most important cases in a single source. 11KBW are delighted to be working with Justis on this much-needed project.

Masoud Gerami, Managing Director of Justis Publishing, said: “We have had a number of significant milestones in our 25-year history, mostly associated with innovation and developments which have changed legal information dissemination for the better. I am delighted that another milestone has been added to our list of achievements by producing the new series of Information Law Reports in association with 11KBW, the leaders in this increasingly important field. I believe that the complementary nature of the expertise from the partners in this project is the ideal requirement for any successful product or service, and we look forward to a continued relationship with 11KBW.”

He added: “This is also the first time that Justis Publishing has produced a product in hard copy, and we are very excited about the possibilities that the combination of hard copy and online versions will present.

For further information, please call +44 (0)20 7267 8989 or email press@justis.com.

 

CHANNEL 4 APPEAL: FOR FOIA PURPOSES, CONTRACTS ARE SEVERABLE

March 23rd, 2011 by Robin Hopkins

Channel 4 v IC and BSkyB (EA/2010/0134) saw the Tribunal consider a short, but potentially very significant point concerning the application of s. 43(2) FOIA, the exemption for commercial confidentiality, to long and complex contracts.

Channel 4 argued that where the substantial parts of a long and detailed contract are exempt under s. 43(2), then the whole contract is exempt. In other words, the public authority is not required to analyse the contract on a clause-by-clause basis. The Tribunal rejected all of Channel 4’s arguments in support of this position – including arguments based on the construction of s. 43(2), a comparison with the EIR, principles of contract, Veolia, ECHR rights and the cost and expense involved. The established approach, which requires clause-by-clause consideration of the application of exemptions, therefore remains intact.

 

PAYMENTS TO SENIOR PUBLIC SECTOR EMPLOYEES: ROUNDUP OF RECENT PERSONAL DATA CASES

February 22nd, 2011 by Robin Hopkins

The FOIA update paper given at last week’s 11KBW Information Law Seminar provides a roundup of recent caselaw in a few of the most common areas of Tribunal litigation.

One is commercially sensitive or confidential information: in particular, Veolia and its aftermath.

Another is information on planning applications and property developments: in particular, those cases subsequent to South Gloucestershire, namely Bristol City, Bath & North East Somerset and Elmbridge.

A third area is personal data: here the recent cases of Dun, Bryce, Ferguson and Ince have all – like the cases mentioned above – been covered in Panopticon posts. Two others to take note of, however, both in the context of public sector pay (other than salaries).

One concerns bonus payments to public sector employees. Davis v IC and Olympic Delivery Authority (EA/2010/0024) saw the Tribunal distinguish between bonus information and performance assessment information. It ordered disclosure of certain information relating to the bonuses of senior employees of the ODA: the maximum performance-related bonuses to which the chief executive and communications director were contractually entitled, and the percentage of the maximum available bonus actually paid to certain other members of senior management. The Tribunal decided, however, that details of the performance targets which individuals failed to hit to 100% satisfaction should not be disclosed.

The other recent case on the personal data exemption is Pycroft v IC and Stroud District Council (EA/2010/0165). The context was an auditor’s report which observed that the local authority’s former Strategic Director of Housing “did not ensure that staff had taken ownership of managing the budgets”. The applicant requested the details of this Director’s early retirement package. The Commissioner found that disclosure of this information would not be fair, and the Tribunal agreed. It should be noted by those dealing with requests for information about payments to allegedly poorly-performing public sector employees.

 

TRIBUNAL ORDERS DISCLOSURE OF VIABILITY REPORT FROM HAMPTON COURT PLANNING APPLICATION

January 7th, 2011 by Robin Hopkins

Elmbridge Borough Council v IC (Additional Party: Gladedale Group Limited) (EA/2010/0106) is the latest Tribunal decision concerning requests for information about planning applications (see my posts on other such cases here and here, and Anya’s post on an earlier important planning case here). In particular, the disputed information here comprised a viability report containing details on costs, revenues, values and finances of a development in the vicinity of Hampton Court. The Council pleaded commercial confidentiality and sought to rely on regulations 12(5)(e) and 12(5)(f) EIR. The Commissioner found that these exemptions were not engaged. The Tribunal agreed, and ordered disclosure.

In so doing, the Tribunal confirmed that the confidentiality of this information must be objectively required at the time of the request (rather than, for example, when the information was created or passed to the Council) in order to protect a relevant interest. The Tribunal also confirmed that it is not enough that some harm might be caused by disclosure, but that it is necessary to establish (on the balance of probabilities) that some harm to the economic interest would be caused by disclosure.

A crucial feature of this case was the lack of evidence offered to demonstrate commercial confidentiality or prejudice. The Tribunal observed that:

“Throughout the investigation and consideration of the issues leading to the Decision, the Respondent consistently and repeatedly sought evidence from the Appellant to support their contention that the subject information was commercially sensitive or that its release would be prejudicial to the third parties concerned. It is noted by this Tribunal that the information made available to the respondent amounts to assertions and speculation by the interested parties. There is a notable absence of independent or objective evidence to support the assertions or speculation put before the Respondent.” 

 

CONFIDENTIAL COMMERCIAL INFORMATION AND HUMAN RIGHTS – NEW TRIBUNAL DECISION

December 21st, 2010 by Anya Proops QC

A question which is frequently posed under both FOIA and the EIR is whether and to what extent confidential, commercial information can lawfully be withheld by a public authority. The recent decision of the First Tier Tribunal in the case of Staffordshire County Council v IC & Silbelco [2010] UKFTT 573 (GRC), (EA/2010/0015) embodies a number of important principles which should be considered whenever this question is being posed.

In Staffordshire, a request had been made for disclosure of particular commercial information consisting of the sales figures and reserve figures which a particular quarry operator (Sibelco) had generated in respect of the minerals which it quarried. The information had been provided by Sibelco to the local authority under a voluntary scheme. The scheme had been set up with a view to assisting the authority in discharging its statutory obligations as a mineral planning authority. Sibelco had provided the information to the authority on the express basis that it was to be treated in strictest confidence. Following a request for disclosure of the information, the authority refused to disclose the information on the basis that it was exempt under s. 41 FOIA (the confidential information exemption). During the complaints process before the Commissioner, the authority accepted that, in view of the environmental nature of the information, the applicable access regime was the EIR, rather than FOIA. However, it went on to argue that the information was still exempt under r. 12(5)(e) (commercial/confidential information exception) or 12(5)(f) (exception in respect of information provided in confidence) EIR. The Commissioner accepted that both exceptions were engaged in respect of the disputed information. However, he concluded that, on an application of the public interest test, the public interest weighed in favour of the information being disclosed. The authority appealed the Commissioner’s decision to the First Tier Tribunal. The Tribunal held that the Commissioner had erred as the public interest balance provided for under r. 12(1)(b) EIR  weighed in favour of the information being withheld.

Importantly, in analysing the application of the public interest test the Tribunal took into account the recent Court of Appeal judgment in Veolia v Nottinghamshire CC [2010] EWCA 1214. In that case, which was concerned with the access to confidential, commercial information under s. 15 of the  Audit Commission Act 1998, Rix LJ concluded that: (a) he could see no reason why ‘valuable commercial confidential information’ could not amount to a ‘possession’ for the purposes of Article 1 of Protocol 1 of the European Convention of Human Rights (A1/P1) (b) in the circumstances, unrestricted disclosure of such information would amount to an interference with the A1/P1 right to possession enjoyed by the person whose information it was; and (c) such interference would have to be justified if it were not to be unlawful under the ECHR (see §§120-122). In Staffordshire, the Tribunal relied upon Rix LJ’s reasoning to arrive at the following conclusions on the application of the EIR (and FOIA) to confidential, commercial information (§151):

  • The disclosure of confidential information by a public body such as the Appellant engages the ECHR rights of the holder of the confidence;

 

  • A statutory right for the public to have access to any information must have an exception read into it to exempt the disclosure of confidential information in order to give effect to those ECHR rights;

 

  • The presumption in favour of disclosure of all environmental information held by public bodies in Regulation 12(2) EIR 2004 must now be read subject to an exception in the case of any such information which is held by the public body subject to a legal duty of confidentiality;

 

  • Where environmental information is held by a public body which is subject to a legal duty of confidentiality there is recognised to be a “strong public interest” in the maintenance of valuable commercial confidential information;

 

  • Arguments can be advanced on the individual circumstances of the case to seek to justify overriding the duty of confidence for particular pieces of information.’

The Tribunal was of the view that the facts of the case were such that there was no justification for overriding the duty of confidence owed to Sibelco in respect of the disputed information.

In light of the Tribunal’s analysis of the implications of Veolia, it is to be expected that human rights arguments will now commonly feature in any appeal involving an application of the EIR or FOIA to confidential, commercial information.