ICO cannot have a second go

March 25th, 2014 by Robin Hopkins

Okay, the following points are mainly about procedure, but they are nonetheless quite important for those involved in FOIA litigation before the Tribunals. These points come from a pair of recent Upper Tribunal decisions, both arising out of requests from the same requester.

One is IC v Bell [2014] UKUT 0106 (AAC): Bell UT s58. Question: suppose the First-Tier Tribunal thinks the ICO got it wrong in its decision notice. Can it remit the matter to the ICO for him to think again and issue another decision notice on the same complaint? Answer: no, it can’t; it must dispose of the appeal itself. There are some exceptions, but that is the general view with which parties should approach Tribunal litigation.

That Bell decision also comments on the importance, in relevant circumstances, of the Tribunal ensuring that it gets the input of the public authority and not just of the ICO, as there will be cases where only the public authority can really provide the answers to questions that arise at the Tribunal stage.

That same Bell decision also explores this point, for those with an interest in FOIA and statutory construction (surely there are some of you?): under s. 58 of FOIA, unless the Tribunal is going to dismiss an appeal, it must “allow the appeal or substitute such other notice as could have been served by the Commissioner” (my emphasis). That is curious. Quite often, Tribunals do both of those things at the same time. What to make of this? Judge Jacobs explains in the Bell decision.

There was also a second Bell appeal on the same day: Bell UT s14. Same Bell, different public authority and separate case: IC and MOD v Bell (GIA/1384/2013). This was about s. 14 of FOIA (vexatious requests). The public authority had provided lots of detail about the background to the series of requests to make good its case under s. 14. But there was a paper hearing rather than an oral one and the Tribunal appears to have overlooked some of that detail and it found that s. 14 had been improperly applied.

Judge Jacobs overturned that decision. One reason was this: when a binding and decisive new judgment (here, Dransfield) appears between the date of a hearing and the date of the Tribunal’s final deliberations, justice requires that the parties be given an opportunity to make submissions on the application of that judgment.

Another was that the Tribunal had failed properly to engage with the documentary evidence before it. “That is why the papers were provided: to be read. A tribunal is not entitled to rely on the parties to point to the passages that it should read and to look at nothing else” (my emphasis). This underlined point is obviously of general application to Tribunal litigation.

Robin Hopkins @hopkinsrobin

 

A history and overview of the FOIA/EIR veto

March 21st, 2014 by Robin Hopkins

The ‘veto’ (ministerial certificate) provision under s. 53 of FOIA (imported also into the EIRs) has been much discussed – on this blog and elsewhere – of late. Here is another excellent resource on the subject which is worth drawing to the attention of readers who want to understand this issue in more detail. Earlier this week, the House of Commons library published this note by Oonagh Gay and Ed Potton on the veto, its use to date, and comparative jurisdictions (Australia, New Zealand, Ireland).

Robin Hopkins @hopkinsrobin

 

Closed procedure guidance: the Browning version

February 4th, 2014 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

 

UCAS and the extent of FOIA: Tribunal favours wide approach

January 16th, 2014 by Robin Hopkins

Transparency advocates often express frustration at the number of bodies which are not within the scope of FOIA, because they are not listed or designated as ‘public authorities’ for FOIA purposes. The Coalition government responded by announcing, in January 2011, that FOIA would be extended to a number of additional bodies. This was done with effect from 1 November 2011, through the Freedom of Information (Designation as Public Authorities) Order 2011. This brought the Association of Chief Police Officers of England, Wales and Northern Ireland (ACPO); the Financial Ombudsman Service and the Universities and Colleges Admissions Service (UCAS) within the scope of FOIA.

As regards UCAS, the difficulty is that this was not done in a straightforward blanket way. In recognition of the diversity of UCAS’ functions, its amenability to FOIA was limited to information relating to the “provision and maintenance of a central applications and admissions service”. This frames UCAS’ duties in a positive way.

This is similar – but not the same as – the approach taken to the BBC, which is subject to FOIA “in respect of information held for purposes other than those of journalism, art or literature”. This frames the BBC’s duties in a negative way.

The Supreme Court in BBC v Sugar (No2) told us how to approach the extent of the BBC’s FOIA duties. How should Sugar be applied to the differently-worded UCAS provision?

This was the issue before the Tribunal in University and College Admission Service v IC and Lord Lucas (EA/2013/0124), the requester (the author of the Good Schools Guide) made a number of requests to UCAS about university admissions. Some were refused on section 12 (cost of compliance) grounds; the ICO agreed with UCAS that the remaining information was exempt under section 43(2) (prejudice to commercial interests). UCAS and the ICO disagreed, however, about the extent to which UCAS was subject to FOIA.

UCAS argued that Sugar required the Tribunal to consider whether the information was held, to any significant degree, for a purpose other than the designation (in particular, UCAS’s commercial functions), and if so, it fell outside the scope of FOIA.

The ICO argued that because the BBC and UCAS were in reverse positions (the BBC being subject to a specific exclusion, and UCAS subject to a specific inclusion), the question should be whether the information was held to any significant degree for the designated purpose, and if so, it fell within the scope of FOIA. Both parties argued that the other was turning Sugar on its head.

The Tribunal adopted the ICO’s analysis of Sugar. The primary purpose of the 2011 Order was to bring UCAS within the scope of FOIA and subject it to the principles of greater openness and transparency that such a designation was designed to bring: at [68]. The focus of the phrase “the provision and maintenance of a central applications and admissions service”, taken with section 7(5) FOIA, is on what is actually caught by FOIA and the purpose of that wording is specifically to include information: at [66].

In favouring this wider approach to the application of FOIA to UCAS, the Tribunal said this:

“71. Most persuasive is the IC’s point that, in construing the scope of the 2011 Designation Order, it is important to recall that Parliament would have been well aware of the existing exemptions provided in FOIA. There is no need to read the 2011 Designation Order narrowly to ensure there is no overlap with a commercial function of UCAS because section 43 FOIA itself provides protection to UCAS in relation to information which prejudices its commercial interests.

72. The approach of UCAS in this case would have the result that only admissions data relating to the currently live admissions round would fall within the scope of FOIA. This surprisingly narrow result is unlikely to have been the one intended by Parliament when designating UCAS as a public authority for FOIA, not least because the ‘”provision and maintenance of a central applications and admissions service” does not suggest such an outcome.”

11KBW’s Chris Knight appeared for the ICO.

Robin Hopkins @hopkinsrobin

 

Blair, Bush, Iraq, oil: two new Upper Tribunal decisions

July 2nd, 2013 by Rachel Kamm

The Upper Tribunal has handed down two decisions on Iraq and section 27 FOIA, which raise some interesting procedural points – FCO v Information Commissioner and Plowden GIA/2474/2012 and Cabinet Office and Information Commissioner v Muttitt GIA/0957/2012.

In Plowden, the disputed information was a letter which was relevant to a telephone call on 12 March 2003 between Tony Blair and George Bush during which it was said that they had agreed to say that it was the French who had prevented them securing a UN resolution. The Information Commissioner had ordered the FCO to disclose the information provided by Mr Blair to Mr Bush, but not also the information provided by Mr Bush to Mr Blair. The Tribunal broadly agreed with the Information Commissioner, deciding the appeal under sections 27(1) (international relations) and 35(1)(b) (formulation of Government policy) of the Freedom of Information Act 2000. The Upper Tribunal first considered two preliminary matters, which are of general importance:

  1. Closed hearings. Judge Jacobs found that he could have set aside the Tribunal’s decision on ground that evidence had been given in closed session which could have been given in open session. He emphasised that as much evidence as possible should be given in open session and that, after evidence has been given in closed session, the other party should be told of any evidence that could properly be disclosed (paragraph 10).
  2. Respect for the Tribunal’s expertise. The Upper Tribunal generally will be reluctant to interfere with the (specialist fact-finding) First-tier Tribunal’s assessment of the public interest (paragraph 11). However, less respect will be due where the Tribunal does not have relevant specialist knowledge, for example in relation to the diplomatic consequences of disclosure (paragraph 12).

Having dealt with those preliminary issues, Judge Jacobs went on to set aside the First-tier Tribunal’s decision. It had failed to take account of the benefits of disclosure when assessing the public interest. It had also erred in considering the information line by line, instead of as a package; it was unrealistic to isolate one side of a conversation from the other. The appeal was remitted to the First-tier Tribunal for rehearing. To comply with Article 6 ECHR, that rehearing will be a full reconsideration of the issues which were before the Information Commissioner and it will not be limited to arguments raised by the appellant (paragraph 18).

Judge Jacobs had considered section 27 (international relations) a month earlier, in the Muttitt case. Again, this raised a preliminary issue of general procedural importance. Judge Jacobs found that the parties were not entitled to rely on the reasons given by the First-tier Tribunal for refusing permission to appeal (paragraph 4). These did not supplement the original reasons given by the Tribunal on determining the appeal, which was the decision under challenge. Turning to the substantive issues in the appeal, the disputed documents related to a vist by Mr Blair to Iraq in May 2006. Judge Jacobs found that the Tribunal had erred in law when ordering disclosure, in that it had failed to take into account the nature of the information (in contrast to its content). Reading the First-tier Tribunanl’s reasons as a whole, either it had failed to take account of the circumstances in which the documents came into existence or it had failed to give adequate reasons for its analysis of the information in light of those circumstances.  Judge Jacobs set aside the decision and remitted it for a rehearing of all of the issues raised by the appeal.

In Plowden, Julian Milford of 11KBW was led by James Eadie QC and represented the FCO, with Robin Hopkins of 11KBW representing the Information Commissioner.  In Muttitt, Julian Milford represented the Cabinet Office, Robin Hopkins represented Mr Muttitt and Ben Hooper of 11KBW prepared a written submission on behalf of the Information Commissioner.

Rachel Kamm, 11KBW

 

Closed material and closed proceedings in FOIA litigation: authoritative guidance from the Upper Tribunal

May 22nd, 2013 by Robin Hopkins

Closed material and closed proceedings are commonplace in FOIA litigation. As regards the disputed information itself, the need is self-explanatory. But what about closed material other than the disputed information, such as evidence in support of a public authority’s reliance on exemptions? To what extent is it appropriate for FOIA proceedings to be determined by reference to such material which the requester is unable to see and challenge? Also, if the public authority’s concern is with public disclosure of such material, is the solution to be found in a readiness to bring the requester’s legal representatives into a ‘confidentiality ring’? In other words, do natural and open justice demand that requesters’ legal representatives be allowed to attend the closed part of the hearing and see the closed material?

These questions are fundamental to the fair and thorough determination of disputes about the rights conferred by FOIA. In a very important recent decision, the Upper Tribunal has given its answers.

The case

Browning v IC and Department for Business, Innovation & Skills (GIA 25/12) was heard by Mr Justice Charles, Mr Justice Mitting and Upper Tribunal (UT) Judge Andrew Bartlett QC. The decision is available here: Browning GIA 25 12.

The case concerned a request from a Bloomberg journalist for information from the Export Control Organisation (for which DBIS is the relevant public authority) in connection with licences issued for the exporting to Iran of “controlled goods” – explained as “mainly military, dual use (potentially military), equipment designed for torture or repression or sources of radio-activity”. DBIS relied on sections 41 and 43 FOIA. The IC found for the requester but, upon sight of further evidence, supported DBIS’ appeal before the First-Tier Tribunal (FTT). In decision EA/2011/0044, the FTT allowed DBIS’ appeal. In reaching its decision the FTT considered closed material and part of the hearing was closed.

The closed material comprised not only the disputed information, but DBIS’ evidence supporting its reliance on the exemptions. In particular, DBIS had written to applicants for such licences to obtain their views about disclosure, and it relied on their (confidential) responses in closed. Four or five of the 92 responses had been provided to Mr Browning in an anonymised, re-typed and redacted form prior to the hearing before the FTT, so as to illuminate to a degree the nature of the closed evidence being relied upon.

Mr Browning had not asked for more of the closed evidence to be made available to him in that way. Rather, a without-notice application was made at the FTT hearing for his legal representative(s) to see the closed material and attend the closed hearing in order to put the case on his behalf. The FTT refused the application. It summarised the approach taken in other FTT decisions, whereby such applications “will succeed only if there are exceptional circumstances specific to the appeal… The use of special counsel, as an alternative, is likewise exceptional.”

Mr Browning’s first ground of appeal before the UT was against the FTT’s refusal of that application.

Reliance on closed material

Mr Browning understandably contended that “the principles of open and natural justice and of fairness require, or strongly support the conclusion, that their application in the context of adversarial civil litigation should be departed from to the least extent possible… in the determination of an appeal to the FTT under FOIA” (para 48).

The UT said, however, that those principles admit of some context-sensitive flexibility. FOIA appeals are materially dissimilar from criminal and adversarial civil litigation. At paras 59-60, it said that:

“FOIA and its underlying purposes mean that, when a disputed request for information reaches the First-tier Tribunal pursuant to the statutory scheme put in place by FOIA, the relevant background and landscape of rights, interests and duties is materially different from that which obtains in criminal and civil litigation in the courts… It follows from the points we have made about the purposes of FOIA that, in our view, to characterise the First–tier Tribunal’s function, within the statutory scheme established by FOIA, as or equating to ordinary civil and therefore adversarial litigation because it is deciding a dispute between the parties before it, or deciding whether to vindicate a right claimed by the applicant, is an inadequate and inaccurate description; rather, its function is investigatory and is to see that FOIA is properly applied to the circumstances. This involves consideration, in the manner provided by FOIA, of the right which is given by s. 1(1) in pursuance of the interests served by the release of information, together with the assessment of countervailing public and private interests in accordance with the terms of the exemptions.”

Closed proceedings are thus intrinsic to FOIA litigation. The UT has confirmed the right to rely on closed evidence other than the disputed information (though see below for procedural caveats). See paras 59-60:

“(i) it is clear that Parliament did not intend that there should be such a “back door” route to information in respect of which a FOIA exemption could be claimed.  It follows that there is a need to protect it from disclosure to a requester that is equivalent to that which exists in respect of the information he or she has requested, and

(ii) it is also apparent that Parliament did not intend to spawn disproportionate and satellite disputes on whether an exemption applies to information put forward to establish a claimed exemption, and this is a reason why it chose an investigatory appeal process to a tribunal comprising persons with relevant expertise.”

The UT concluded that (para 71):

“The exercise by the First-tier Tribunal of its discretion under the 2009 Rules to consider closed material and to hold a closed hearing is not governed directly, or by analogy, by the approach taken by the civil courts to the disclosure of relevant material and we therefore reject Mr Browning’s central argument that it should be exercised to achieve a result that departs to the least extent possible from the approach taken in adversarial civil litigation.”

Applications for representatives to see closed material/attend closed hearings

The UT reviewed the jurisprudence on this issue (which has not favoured the granting of such applications) and discussed the problems that would arise if such an application were granted. There is a risk of accidental disclosure. It can be difficult for the representative to police neat lines between what he can and cannot say to his client or in open session. More generally, there would be very problematic limitations on taking instructions, such that (para 76) “the value added of the approach over that of suggesting lines of enquiry to the First-tier Tribunal and the Information Commissioner is likely to be limited to what the representative knows of his client’s position before he takes part in the closed process.” In any event, what to do about unrepresented requesters?

At paras 80-81, the UT set outs its conclusions:

“… a First-tier Tribunal should not direct that a representative of an excluded party should see closed material or attend a closed hearing unless it has concluded that, if it does not does so: it 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.

81.          We also acknowledge and confirm that this approach will lead to the result that it will only be in exceptional and so rare cases that a representative of a party seeking information under FOIA will be permitted to see closed material and attend at a closed part of the hearing.  Indeed, we have not been able to identify circumstances in which we think that this would be appropriate, but acknowledge that it cannot be said that this should never be done.”

It also considered that Article 6 ECHR was not engaged, and that its engagement would not dislodge the above conclusions in any event.

Mr Browning’s first ground of appeal therefore failed. The UT did, however, have more to say on how to approach reliance on closed material. All parties involved in FOIA litigation should pay careful attention to these points.

The Practice Note and other observations on the use of closed material

The UT had misgivings about the limited extent of the anonymised closed material which had been made available to Mr Browning on an open basis. It noted, however, that this limited disclosure had for a vigorous and partially successful challenging of the evidence by the requester’s counsel. “During the period leading up to the hearing and when it began Mr Browning and his legal representatives had ample opportunity to seek by way of agreement or further direction additional information about the extent, content and nature of the Closed Exemption Evidence and they did not do so”.

Strictly speaking, the UT has declined to issue general guidance on the approach to allowing reliance on closed material at FTT level, but it has made a number of important points.

It observed (para 42) that “the need to avoid disclosure of the requested information is an obvious and good reason for there being closed material and a closed hearing, but in some cases this may not be the only reason that justifies a First-tier Tribunal considering closed material and holding a closed hearing”.

The FTT’s Practice Note on Closed Material in Information Rights Cases (issued in May 2012) was also considered. The UT said this (para 17):

“This does not have the force of a rule of law or a practice direction, and this judgment should not be taken as comprehensively endorsing it, but we do consider that it is something that First-tier Tribunals should take into account and, if they do not apply it in a given case, they should explain why they have not done so.  In particular, in our judgment, if no written and reasoned application for there to be closed material and a closed hearing has been made pursuant to that Practice Note, First–tier Tribunals should explain why they have proceeded without one.”

It added this on the FTT’s approach to closed material in general (para 18):

“More generally, we comment that First-tier Tribunals should consider and give appropriately detailed directions and reasons (i) setting out the nature and subject matter of any closed material and hearing, (ii) why they have accepted that they should consider evidence advanced by a public authority (or anyone else) and argument on a closed basis, and (iii) why further information relating to their content has not been provided.  If this is done it will provide clarity as to what will be, and has been, considered on a closed basis and why, for example, evidence provided to support an exemption has been so considered and more of it, or about it, has not been disclosed.”

Finally, the UT was clear as to the ongoing nature of these duties (para 39): “throughout the proceedings a tribunal carrying out its investigatory function must keep under review whether information about closed material should be provided to an excluded party in, for example, an anonymised form”.

Clearly, all FTT proceedings involving closed should be conducted in light of the points made above.

Other grounds of appeal: sections 41 and 43 of FOIA

Mr Browning’s other grounds of appeal also failed before the UT. Some of those grounds concerned the FTT’s findings on section 41 of FOIA (actionable breach of confidence). Mr Browning that the disputed information had not been “obtained” from outside the public authority, that the name of a licence applicant does not have the necessary quality of confidence, and that applicants had not imparted licence information in circumstances importing an obligation of confidence. All of those grounds of appeal were dismissed.

More broadly, on the approach to section 41 of FOIA, the UT has said this (para 30):

“It was also common ground before the FTT, and not an issue that was raised or argued before us, that the consideration of whether disclosure would constitute a breach of confidence that is “actionable” incorporates all parts of the breach of confidence action, including the absence of a public interest defence.  This accords with existing First-tier Tribunal decisions (see for example, Gurry on Breach of Confidence 2nd edit para 13.130 and in particular HCFC v IC & Guardian News and Media EA 2009/0036).  On that approach, the point that s. 41 is an absolute exemption is not as significant as it might first appear because within it there is a need to weigh the competing public interests, and as pointed out in a footnote to that paragraph in Gurry, the reverse approach to weighing the public interest in respect of a breach of confidence to that set out in s. 2 of FOIA in respect of a qualified exemption, if anything, makes it easier to establish the s. 41 exemption but is unlikely to become a determinative factor.”

Mr Browning also challenged the FTT’s conclusions on the detriment likely to arise from disclosure and argued that it had not identified the prejudice to commercial interests or the likelihood of that prejudice (for section 43(2) FOIA purposes).

The UT did have misgivings about the FTT’s comments about ‘chilling effect’ arguments on the evidence, but found that it there had been an error of law, it was at most a makeweight finding which did not suffice to overturn the FTT’s decision.

Ben Hooper acted for the Information Commissioner.

Robin Hopkins