Heading off the FOIA equivalent of a zombie apocalpyse, the Upper Tribunal has driven a stake through the heart of the contention (long presumed dead) that the public interest in a FOIA request is to be assessed at a time other than when the public authority first refused the request.
With a variety of local and regional elections coming up in May, and the EU referendum in June, purdah and the sensitivity of the pre-election period is at the forefront of many people’s minds. So how does this work with the handling of FoI requests by public authorities and national Commissioners? The issue hit the headlines Continue reading
Section 40 of FOIA is where the Freedom of Information Act (mantra: disclose, please) intersects with the Data Protection Act 1998 (mantra: be careful how you process/disclose, please).
When it comes to requests for the disclosure of personal data under FOIA, the DPA condition most commonly relied upon to justify showing the world the personal data of a living individual is condition 6(1) from Schedule 2:
The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.
That condition has multiple elements. What do they mean, and how do they mesh together? In Goldsmith International Business School v IC and Home Office (GIA/1643/2014), the Upper Tribunal (Judge Wikeley) has given its view. See here Goldsmiths. This comes in the form of its endorsement of the following 8 propositions (submitted by the ICO, represented by 11KBW’s Chris Knight).
Proposition 1: Condition 6(1) of Schedule 2 to the DPA requires three questions to be asked:
(i) Is the data controller or the third party or parties to whom the data are disclosed pursuing a legitimate interest or interests?
(ii) Is the processing involved necessary for the purposes of those interests?
(iii) Is the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject?
Proposition 2: The test of “necessity” under stage (ii) must be met before the balancing test under stage (iii) is applied.
Proposition 3: “Necessity” carries its ordinary English meaning, being more than desirable but less than indispensable or absolute necessity.
Proposition 4: Accordingly the test is one of “reasonable necessity”, reflecting the European jurisprudence on proportionality, although this may not add much to the ordinary English meaning of the term.
Proposition 5: The test of reasonable necessity itself involves the consideration of alternative measures, and so “a measure would not be necessary if the legitimate aim could be achieved by something less”; accordingly, the measure must be the “least restrictive” means of achieving the legitimate aim in question.
Proposition 6: Where no Article 8 privacy rights are in issue, the question posed under Proposition 1 can be resolved at the necessity stage, i.e. at stage (ii) of the three-part test.
Proposition 7: Where Article 8 privacy rights are in issue, the question posed under Proposition 1 can only be resolved after considering the excessive interference question posted by stage (iii).
The UT also added this proposition 8, confirming that the oft-cited cases on condition 6(1) were consistent with each other (proposition 8: The Supreme Court in South Lanarkshire did not purport to suggest a test which is any different to that adopted by the Information Tribunal in Corporate Officer).
Those who are called upon to apply condition 6(1) will no doubt take helpful practical guidance from that checklist of propositions.
Robin Hopkins @hopkinsrobin
With FOIA celebrating its tenth birthday this month, it is striking that one of its most taken-for-granted axioms has been called into question. The axiom is this: the relevant time is the time of the request, extending perhaps until the statutory time for compliance with the request. When you are assessing the public interest balance and the engagement of exemptions, that is the time you look to; you ignore later developments.
In Defra v IC and the Badger Trust (GI/79/2014), the requester (the Badger Trust) had requested information about Defra’s risk assessments for the proposed badger culling programme. The ICO ordered disclosure. Defra appealed. The case was transferred to the Upper Tribunal due to a witness anonymity issue. The Upper Tribunal dismissed Defra’s appeal. It was not persuaded by Defra’s evidence as to the public interest balance. The judgment is here DEFRA v ICO and Badger Trust – Judgment on Public Interest.
In its judgment, the UT pondered the question of the relevant time. It declined to rule, but stated that it considered this question to be an open one: see paragraphs 44-48. A central tenet of FOIA/EIR orthodoxy over the past decade has been called into question.
Another recent UT judgment is worthy of note as FOIA turns ten. It does not introduce uncertainty, but rather – from the point of view of FOIA’s fans – provides a heartening affirmation of the purpose of the legislation. The case is UCAS v IC and Lord Lucas  UKUT 0557 (AAC): see here UCAS. It was about the extent to which FOIA applied to UCAS. The point I draw out here is this one, at paragraph 39 of the decision of Judge Wikeley:
“I agree with Mr Knight that the starting point in this exercise in statutory interpretation must be the principle that FOIA is a constitutionally important piece of legislation, the scope of which must be interpreted broadly. This much is plain from Sugar (No. 2) itself (see Lord Walker at  and Lord Mance at ), as well as from other decisions of the House of Lords and Supreme Court (see Common Services Agency v Scottish Information Commissioner  UKHL 47 at  per Lord Hope and Kennedy v Charity Commission  UKSC 20 at  per Lord Sumption). This emphasis on a liberal construction is, to borrow a phrase from a different context of statutory interpretation, the golden thread which runs through the FOIA case law, whether in the rarefied atmosphere of the Supreme Court or on the judicial shop floor at the First-tier Tribunal.”
So then, happy birthday FOIA. Some of the assumptions of your youth may be in question, but your golden thread is strong. Somebody put that in a greeting card, please.
I appeared in the Badger Trust case. Chris Knight appeared in the UCAS case.
Robin Hopkins @hopkinsrobin
Last month I penned a post on the issue of how the principle of natural justice can be reconciled with the use of closed procedures in FOIA appeals. The post was written against the backdrop of the Court of Appeal hearing of the appeal in the Browning case. Today the Court of Appeal has handed down its judgment. Mr Browning’s appeal was dismissed.
Before looking at the conclusions reached by the Court, it is important to understand the facts of the Browning case. Mr Browning is a highly regarded journalist. He sought access to information held by DBIS in connection with the application of the export licensing regime, particularly insofar as it had been applied to applications made by third party businesses for licences to export to Iran. The request was refused on an application of ss. 41 and 43 FOIA. The ICO upheld Mr Browning’s complaint about the refusal. However, on appeal to the FTT, and having considered further relevant evidence adduced for the purposes of that appeal, the ICO decided that it would switch sides and support DBIS’s case on appeal. As many operating within the FOIA field will know, it is not uncommon for the ICO to adapt his position in this way.
So far as the hearing itself was concerned, the FTT conducted part of the appeal on a closed basis. This meant that not only the public but also Mr Browning and his legal representative were excluded from part of the hearing. The FTT of course has express power to conduct FOIA appeals in this manner pursuant to rr. 35 and 5 of the FTT Rules. However, Mr Browning was not content with this arrangement and, whilst he did not apply to participate in the closed hearing himself, he did apply for permission for his counsel to participate. The application was made on the basis that Mr Browning’s counsel would give undertakings to the FTT not to reveal any closed material or evidence without the FTT’s permission. The application was made on the basis that this was the minimum derogation from the natural justice principle which should be tolerated by the tribunal.
Notably, the FTT does have power under r. 14(4) of the FTT Rules to permit such an arrangement. However, the FTT in Browning decided that the application should be refused. The FTT went on to hear evidence in closed session from a number of individuals in their capacity as representatives of businesses which had applied for licences permitting them to export to Iran.
It would appear that after the hearing went back into open session, the FTT explained in some detail the nature of the evidence given by the witnesses in closed session (“the substantive evidence”). However, the identity of the witnesses and information revealing the identity of the businesses they represented (“the identifying information”) was withheld. This was on the basis that the disclosure of such information would itself be highly damaging to the relevant businesses.
Of course, whilst in one sense Mr Browning’s position as a party could not be said to have been unduly prejudiced by the convening of the closed session, particularly because he was given a detailed account of the substantive evidence, in another sense, the prejudice was substantial: by being denied access to the closed session, neither Mr Browning nor his counsel had been able to challenge the evidence given by the witnesses through the process of cross-examination. Mr Browning’s concerns about this inability to cross-examine witnesses would appear to have been amplified in the present case because, in contrast with other appeals, where the ICO is effectively supporting the position adopted the applicant, in this case the ICO was supporting the position of DBIS. At the very least this caused Mr Browning to question whether the ICO would be as assiduous in testing the evidence in closed session as he would have been had he been supporting Mr Browning’s position. See further my earlier post on the general concerns which surround the use of closed procedures in FOIA appeals.
The FTT ultimately decided the appeal in DBIS’s favour. It is clear from the judgment that the evidence given in closed session played a determinative role in this context.
Mr Browning went on to appeal the FTT’s decision to refuse his application for counsel-only access to the UT. He lost before the UT. He then appealed the UT’s judgment to the Court of Appeal. The appeal was put on the basis of the following relatively narrow ground:
– the Tribunals Courts and Enforcement Act 2007 provides for a power to make rules to govern the procedures of the tribunal. However, pursuant to s. 22(4), that rule-making power must be exercised so as to ensure: (a) that ‘justice is done’ and (b) that the ‘tribunal system is accessible and fair’;
– the FTT rules, as applied in the FOIA context, are ultra vires s. 22(4). This is because endowing the FTT with a power to conduct closed procedures in the absence of the applicant’s representative (as to which see rules 35 and 5) produces the result that, in cases where representatives are excluded, justice is not done and the tribunal system is not accessible and fair.
Thus, the appeal was advanced solely on the issue of the vires of the rules. It was not argued on the ground that the FTT’s decision had been perverse on the facts of the case before it.
The Court of Appeal dismissed the appeal. Marice Kay LJ, who gave the leading judgment, held in short that the rules were on their face intra vires s. 22(4) and, further, that application of the principle of natural justice did not require a different result. In reaching this conclusion, the Court noted in particular relevant jurisprudence concerning the serious practical difficulties attendant on permitting counsel-only access in the context of closed procedures, including not least the House of Lords’ judgment in Somerville v Scottish Ministers  1 WLR 2734. The key paragraph of Marice Kay LJ’s judgment is paragraph 35:
‘35. The crucial task is to devise an approach, in the context of a specific case, which best reconciles the divergent interests of the various parties. In my judgment, the approach adopted in this case and originating in the [British Union for the Abolition of Vivisection v ICO and Newcastle University EA 2010/0064] case does precisely that, having regard to the unique features of appeals under FOIA where issues of third party confidentiality and damage to third party interests loom large. The features to which reference was made in the BUAV case – the expertise of the Tribunal, the role of the IC as guardian of FOIA etc – make it permissible to exclude both an appellant and his legal representative except in circumstances where the FTT
“cannot carry out its investigatory function of considering and testing the closed material and give appropriate reasons for its decision on a sufficiently informed basis and so fairly and effectively in the given case having regard to the competing rights and interests involved. ”
In associating myself with this formulation I am accepting that there are features surrounding a case such as this which merit the description of the procedure as being at least in part investigatory as opposed to adversarial.’
The net effect of the judgment is that counsel-only access can potentially be contemplated by the tribunal but only in those exceptional cases where the tribunal concludes that the lack of counsel’s participation means that the tribunal cannot do justice to the case.
It is at this point important to note that the case in Browning was mounted exclusively on the basis that Mr Browning’s counsel should be permitted access to the closed session. There was no suggestion that this was a case where use of a special advocate would be apt, although it is understood that the use of special advocates was discussed before the Court of Appeal. This is important because in many senses the special advocate system avoids the acute practical difficulties which go hand in hand with the use of counsel-only access. Moreover, the fact that certain cases may warrant use of a special advocate was specifically confirmed by the FTT in BUAV.
One suspects that, in view of the concerns expressed by the Court of Appeal in Browning on the subject of counsel-only access, the debate around achieving natural justice in the context of FOIA appeals will now start to focus more heavily on the use of special advocates. Of course the use of special advocates is costly, as was noted in BUAV. This will often mean that their deployment is disproportionate. However, there will nonetheless be cases where the importance of the issues at stake in the appeal and the lack of access to substantive evidence given in closed session create a powerful if not overwhelming imperative in favour of adopting the special advocate procedure. It will be interesting to see whether this is an argument which surfaces before the FTT in the near future.
11KBW’s Ben Hooper acted for the Information Commissioner before the Court of Appeal.
The question of whether information is ‘held’ by a public authority for FOIA or EIR purposes can raise difficulties. This is especially so where the boundaries between public and private service provision are blurred: consider outsourcing, privatisation of services, public/private partnerships, joint ventures, the use of external consultants and so on. Legal separation and practical day-to-day realities can often point in different directions in terms of who holds information on whose behalf.
Geraldine Hackett v IC and United Learning Trust (EA/2012/0265) is a recent First-Tier Tribunal decision which addresses such issues – specifically in the context of academy school provision.
The United Church Schools Foundation Limited delivers schools through two separate trusts: the United Church Schools Trust (which runs 11 private schools) and the United Learning Trust (which runs 20 academies, and receives approximately £110k of its £129k of annual income from public funds).
Para 52A Schedule 1 FOIA brings within the scope of FOIA “the proprietor of an academy” but only in respect of “information held for the purposes of the proprietor’s functions under academy arrangements.”
Geraldine Hackett asked for information about the employment package of ULT’s chief executive (pay, pension contribution, expenses etc) and of the other members of the ULT senior management team.
ULT said it did not hold the information; the information was instead held by UCST (the private school provider). The ICO agreed. So did the First-Tier Tribunal, but this was overturned by the Upper Tribunal on account of aspects of procedural fairness which had gone badly awry at first instance.
On reconsideration by a fresh First-Tier Tribunal, the ICO’s decision was overturned. The Tribunal asked itself the questions which the Upper Tribunal had invited for consideration:
“Was it really the case that ULT had delegated day-to-day running of its charitable activities to a chief executive of whose duties under his contract of employment, ULT was ignorant? Was it permissible to avoid FOIA by the device of a contract of employment made by another body?”
It applied the leading case of University of Newcastle upon Tyne v ICO and BUAV  UKUT 185 (AAC) and concluded that ULT did hold the requested information for FOIA purposes. This meant that “ULT would fulfil its obligations under FOIA by disclosing not the total sums involved but that proportion, calculated in accordance with the agreement, which relates to the academies; in other words excluding that proportion which can be attributed to USCT’s private schools.”
The Tribunal noted that “in 2006 both trusts entered into an agreement with each other to apportion the expenditure on shared services” and observed that “it appeared to us from the oral and written evidence that staff work together seamlessly for all three trusts”.
Those who grapple with held/not held questions in contexts like this will wish to note the key paragraph (19) illuminating the Tribunal’s reasoning:
“We were told at the hearing, and we accept, that the disputed information is held in hard copy in one of the filing cabinets at the United Learning Head Office. Those with access to it work seamlessly, we have found, for all three trusts. They have responsibilities to all three trusts. For these purposes, we are not attracted by artificial theories suggesting that staff hold these documents only on behalf of one or two of the trusts. Looking at actualities, and applying the plain words of the statute, in our judgment the disputed information is held by ULT, even if it is also held by UCST and UCSF. This finding is consistent with the obligations of the ULT accounting officer in respect of senior officers’ payroll arrangements…”
Robin Hopkins @hopkinsrobin