Tony Blair has given an interview in today’s Guardian in which he robustly defends (almost) all of his actions as Prime Minister. Notable exceptions include the ban on fox-hunting and, somewhat surprisingly, the Freedom of Information Act. Thus, Martin Kettle of the Guardian reports: ‘Some things about his record in office he does not defend. One is the Freedom of Information Act. “It’s not practical for government,” he says. “If you are trying to take a difficult decision and you’re weighing up the pros and cons, you have frank conversations. Everybody knows this in their walk of life. Whether you are in business – or running a newspaper – there are conversations you want to have preliminary to taking a decision that are frank. And if those conversations then are put out in a published form that afterwards are liable to be highlighted in particular ways, you are going to be very cautious. That’s why it’s not a sensible thing.”’ Query whether the current PM would be prepared to make a similar declaration. You can find the article here.
Tag: FOIA
UNHELPFUL PRESENTATION OF REDACTED MATERIAL COULD BREACH SS. 1 & 16 FOIA
The Tribunal’s recent decision in Gradwick v IC and the Cabinet Office (EA/2010/0030) dealt with sections 23 and 24 of FOIA. Its concluding dicta also dealt with some procedural matters with potentially substantive implications, particularly concerning redacted material. Public authorities may find these dicta worth noting, both when preparing to disclose redacted material and when preparing for Tribunal hearings.
In response to a FOIA request, the Cabinet Office had decided to disclose some extracts from its Manual of Protective Security but to withhold others. Due in part to administrative complications, it did so by compiling a document consisting solely of the former rather than blanking out parts of the original manual. Relying on FOIA’s reference point being information rather than documents, the Cabinet Office sought to justify this approach in the face of criticism from the Tribunal. The Tribunal however, remarked that “it is at least arguable that a document which sets out the passages that contain the information to be disclosed, but which has the effect of obscuring the nature and extent of the information which has been withheld, does not inform the party making the request whether or not it holds information of the description specified in the request, for which exemption is claimed”.
This approach to the presentation of information could, it observed (without deciding the issue), constitute a breach of section 1 (duty to provide information) and/or section 16 (duty to assist) of FOIA.
The Tribunal indicated that it prefers the following approach:
“Within the practice established by the Tribunal and its users to date, a document characterised as having been redacted has come to mean one in which the extent of the omitted material is indicated by blank spaces and in which, to the extent possible, headings or other indications are retained or inserted to give a fair indication, to both panel members and those presenting submissions, of the broad nature of the information that has been withheld. Annotating the resulting document to indicate the exemption relied on to justify each omission is also a valuable assistance in cases where different exemptions apply to different sections of the document or information.”
RECENT TRIBUNAL RULINGS – RISKS FOR APPELLANTS
The Tribunal has recently issued a ruling highlighting the dangers for a public authority if it submits an inadequately reasoned notice of appeal. In Westminster City Council v IC (EA/2010/0096), the Council had submitted a notice of appeal against the Commissioner’s decision notice within the 28 day time limit allowed for under rule 22 of the Tribunal Procedure (First Tier Tribunal) (General Regulatory Chamber) Rules 2009 (“the Rules”). However, the notice of appeal merely asserted that the Commissioner had erred in deciding that the EIR 2004 rather than the FOIA applied to the disputed information. The notice did not contain any grounds for this assertion. Thereafter, the Tribunal ordered the Council to provide grounds for its appeal. The Council was given a week to provide the relevant grounds. The Council missed that deadline. Moreover, it did so in circumstances where it had not notified the Tribunal that it needed an extension of time for lodging the grounds. The Council invited the Tribunal to overlook the three day delay in submitting the grounds. It alleged that the delay was due to staffing difficulties; the need to take legal advice; a failure to understand the tribunal procedures and a failure properly to record the date set by the Tribunal for submission of the grounds. The Tribunal refused to accept these arguments. It held that the Council was a large authority with a specialised in-house FOIA department; that an alleged lack of resources was not a valid excuse and that advice should have been sought at an earlier stage. Accordingly, the Tribunal refused to accept the grounds. There are two lessons to be derived from this ruling. First, an appellant which fails adequately to particularise its case in its notice of appeal or otherwise to follow up the notice promptly with fully reasoned grounds may well end up losing the right of appeal altogether. Second, where there are concerns that a tribunal deadline may be missed, the affected party should always consider notifying the tribunal of that fact and seeking an extension of time.
In a separate development, the Tribunal recently decided in Thackeray v IC (EA/2010/0088) that an appellant would not be allowed to proceed with his appeal in view of his refusal to provide the Tribunal with a postal address. Mr Thackeray had provided an email address in his notice of appeal but refused to provide a postal address, allegedly because he was concerned that he would face harassment if the address was disclosed. Mr Thackeray argued that provision of an email address was sufficient in order to meet the requirements of rule 22(a) and (c) of the Rules. The Tribunal decided that the notice of appeal would be invalid in the absence of the provision of a postal address. The Tribunal took the view that a postal address was a pre-requisite not least in view of: (a) the fact that parties may want, for reasons of security, to deliver documents directly rather than by email; and (b) a postal address would be required to protect the position of the other parties in the event that costs were awarded against the appellant. Unfortunately, neither of these rulings can at present be found on the Tribunal website.
PREPARATION OF WITNESS STATEMENTS – SOME DOs AND DONTs
In a paper which I delivered at the 11KBW Information Law seminar in May 2010, I identified a number of tips designed to assist parties in preparing for hearings before the information tribunal – the paper can be found here. Very recently, the tribunal has handed down a decision which highlights the dangers to a public authority if it fails to ensure that any witness statements generated for the purposes of the tribunal hearing are sufficiently full and illuminating: Metropolitan Police Service v IC (EA/2010/0006).
The MPS case involved a request made to the MPS for disclosure of information as to how much money Croydon Police had spent on paying informants in the preceding three years. The MPS refused disclosure of the requested information relying on a range of exemptions, including s. 30 (criminal investigations) and s. 31 (law enforcement). The Commissioner upheld the applicant’s complaint against the refusal notice. In the course of the appeal to the tribunal, the MPS produced witness statements in support of its case on appeal. However, as it happened, the significant evidence given by these witnesses was only obtained through the process of cross-examination. The tribunal voiced serious concerns about the fact that the MPS had not included such evidence in its witness statements (which had been exchanged some time before the hearing) but had, instead, effectively ambushed the Commissioner by giving such evidence orally at the hearing. The tribunal noted that this was not the first time the MPS had adopted such a course in proceedings before the tribunal and that ‘there may be cost consequences for the MPS in future cases’ (see paragraphs 16-17). What this judgment highlights is the importance of generating witness statements which contain, so far as possible, the core evidential points upon which the authority wishes to rely in advancing its case. If parts of the evidence are highly sensitive, this does not justify withholding the evidence. Instead, it merely means that the authority should structure the witness statements so that any sensitive, confidential elements are dealt with in the closed statements (which are then considered in closed session.
The tribunal went on to hold that the disputed information was in fact exempt from disclosure under s 24 (the national security exemption – as to which see my earlier post below). The point to be noted here is that the case may never have come before the tribunal had the MPS: (a) identified that s. 24 was in issue at a much earlier stage; and (b) been full and frank with the Commissioner as to the reasons why the information was exempt under s. 24. 11KBW’s Ben Hooper was instructed on behalf of the Commissioner.
APPLICATION OF NATIONAL SECURITY EXEMPTION TO AIRPORT SECURITY INFORMATION
As might be expected, FOIA contains a specific exemption designed to safeguard national security, see the exemption provided for under s. 24. In essence, the s. 24 exemption is engaged if the exemption ‘is required for the purposes of safeguarding national security’. Perhaps somewhat surprisingly, the section 24 exemption is a qualified exemption (see s. 2(3) FOIA). This means that, even if the exemption is required in respect of particular information to safeguard national security, the information may still be disclosable on an application of the public interest test provided for under s. 2 FOIA. In Kalman v IC & Department for Transport (EA/2009/0111), the Tribunal was for the first time called upon to consider the substantive application of s. 24 (i.e. how it applied to specific information – cf. Baker v IC & Ors EA/2006/0045, where the tribunal considered the application of the national security exemption in the context of the duty to confirm or deny whether the information was held). The Kalman case involved an application for disclosure of information relating to airport security arrangements. The DfT refused to disclose the information on the basis that there was a real risk that the information, if disclosed, would be exploited by terrorist organisations. The Commissioner largely rejected Mr Kalman’s complaint against the DfT’s decision. Mr Kalman appealed to the Tribunal. There were two issues at stake in the appeal. First, whether s. 24 was engaged in respect of the disputed information and, second, if it was engaged, whether the public interest balance nonetheless weighed in favour of disclosure.
During the course of the hearing, the DfT conceded that some of the disputed information could be disclosed, not least because it was already effectively the stuff of public knowledge. The Tribunal went on to hold that there was other information which ought to have been disclosed for much the same reason. With respect to the remainder of the information, the tribunal accepted that s. 24 was engaged and that the public interest weighed in favour of maintaining the exemption. Notably, the tribunal held that the nature of the risk posed by the disclosure was so serious in this case (i.e. potential significant loss of life due to terrorists exploiting weaknesses in the airport security system) that, even if the risk was relatively slight, there would have to be an extremely strong public interest in disclosure to avoid the information being lawfully withheld. In reaching this conclusion, the tribunal adopted a similar analysis to the one which it had previously adopted in PETA v IC & Oxford University (EA/2009/0076) (case involving the application of the health and safety exemption in a case involving risk of attack by animal extremists).
WATCH THIS SPACE
The Coalition’s Programme for Government contains a great deal that is of interest to information lawyers: see here. But when and how will any of this be given legislative effect?
The Queen’s Speech was delivered on 25th May 2010. The website of the Prime Minister’s office gives a list of the proposed Bills , with further information about each one. Three of the proposed Bills have potential implications for information law.
(i) The Public Bodies (Reform) Bill will enhance the transparency and accountability of quangos: though it is not clear as yet whether enhanced information access rights will play a role in this.
(ii) The Decentralisation and Localism Bill will (among other matters) require public bodies to publish online the job titles of every member of staff and the salaries and expenses of senior officials.
(iii) The Freedom (Great Repeal) Bill is intended to cover a wide range of subjects, to be announced in due course: it may include an extension to the scope of FOIA, and also various provisions in relation privacy (e.g. relating to CCTV cameras, and the DNA database).
Of these Bills, it is the third that is likely to be much the most significant.