Tag: FOIA

11KBW INFORMATION LAW SEMINAR – FOIA UPDATE PAPER

Posted on | by Anya Proops KC

Many thanks to all those who attended 11KBW’s Information Seminar last night. For those of you who were unable to attend, you can find a copy of my paper on ‘FOIA – Recent Developments’ here.

The paper touches on the following themes:

·         the issue of aggregating public interest considerations where multiple exemptions are in play (IC v Office of Communications);

 

·         protecting confidential and commercially sensitive information (South Gloucestershire v IC; University of Central Lancashire v IC  and Higher Education & Funding Commission for England v IC);

 

·         how the tribunal approaches cases under FOIA where the health and safety of the public may be put at risk as a result of disclosure (People for Ethical Treatment of Animals v IC & Oxford University and Kalman v IC & Department for Transport (forthcoming));

 

·         the timing of obtaining the opinion of the qualified person for the purposes of s. 36 FOIA (the prejudice to public affairs exemption) (Roberts v IC & DBIS and University of Central Lancashire v IC);

 

·         the application of the personal data exemption under s. 40 FOIA, particularly in respect of statistical data (Department of Health v IC & Pro-Life Alliance and Magherafelt DC v IC);

 

·         late reliance on exemptions (CPS v IC and DEFRA v IC & Birkett);

 

·         allowing a complainant’s representative to access closed material and participate in the closed session (PETA v IC & Oxford University and DEFRA v IC & Birkett); and

 

·         access to property search records (East Riding v IC & York Place and OneSearch Direct v City of York Council).

It also includes a section setting out some practical tips for those involved in information tribunal litigation.

Tim Pitt-Payne QC also presented at the seminar. His paper was on the subject of ‘Information Law in the New Parliament’. An updated version of Tim’s paper, reflecting political developments being reported today, will appear on the blog within the next week.

FROM BIG BROTHER SOCIETY TO BRAVE NEW WORLD?

Posted on | by Timothy Pitt-Payne KC

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.

LATE RELIANCE ON EXEMPTIONS ONLY TO BE ALLOWED IN “EXCEPTIONAL” CIRCUMSTANCES

Posted on | by Robin Hopkins

The Tribunal’s recent decision in Crown Prosecution Service v IC EA/2009/0077 concerned a request for information about the CPS’ deliberations on s. 58 of the Children Act 2004, which restricted the availability of the “reasonable punishment” defence to what would otherwise be a criminal assault by an adult on a child. The importance of this decision lies not so much in the fate of the requested information (in short: some was exempt, some was to be disclosed), but in the Tribunal’s approach to late reliance on FOIA exemptions.

The CPS initially relied on s. 35(1)(a) (formulation and development of government policy). Then, in its appeal to the Tribunal, it invoked s. 35(1)(b) (ministerial communications) and s. 42 (legal professional privilege). Finally, the CPS raised s. 40 (2) (personal data) for the first time during the Tribunal proceedings. The Tribunal allowed late reliance on ss. 40(2) and 42, but not s. 35(1)(b).

In so doing, it applied the principles set out in the Tribunal’s decision in Home Office & Ministry of Justice v IC EA/2008/0062. The crux of that decision was that late reliance should only be allowed in “exceptional” circumstances. The Home Office approach was not disapproved in the appeal to the High Court from that Tribunal decision ([2009] EWHC 1611 (Admin)) – but nor was it formally approved. The CPS decision, which was complete with detailed reasoning in support of Home Office, seems to have resolved lingering questions about the Tribunal’s approach to late reliance.

The Tribunal in CPS also considered whether the IC is under a duty to consider exemptions that are not raised by the public authority. Here it followed the approach from Bowbrick v. Nottingham City Council EA/2005/0006: in “exceptional” cases, the IC is “entitled” to look for an appropriate exemption. This did not extend to s. 42 in Bowbrick, nor did it in CPS.

EIR EXCEPTIONS – WHAT DOES IT ALL ADD UP TO?

Posted on | by Timothy Pitt-Payne KC

In Ofcom v Information Commissioner [2010] UKSC 3 the Supreme Court was asked to consider how public authorities should approach the exceptions to disclosure set out in the Environmental Information Regulations 2004 (EIR).  Most of these exceptions are subject to a public interest test.  The public interest in maintaining an exception has to be measured against the public interest in disclosure.  Unless the public interest in maintaining the exception outweighs the public interest in disclosure, the information must be disclosed.

But what happens if there are a number of exceptions in play?  Do you look at each exception in turn, assessing the public interest in maintaining that exception as against the public interest in disclosure?  Or do you aggregate all of the exceptions, assess the combined public interest in maintaining them, and measure that combined interest against the public interest in disclosure?

In the Ofcom litigation, the Court of Appeal had decided in favour of aggregation.  The Supreme Court was inclined (by a 3-2 majority) to uphold that decision.  But the Supreme Court also recognised that the answer was unclear, and depended on the construction of Directive 2003/4/EC.  So the Court has referred the issue to the European Court of Justice.

There is now a practical difficulty:  in cases where the aggregation point might make a difference to the outcome, what should the Tribunal do? Should it follow the Court of Appeal?  Should it wait for the ECJ?  Or should it reach its own view on how the legislation should be interpreted?  And Ofcom is an EIR case: what about aggregation under FOIA?

In practice nobody will want the outcome of their case to turn on a point that may not be resolved for some years.  It will be much more attractive for parties to argue that aggregation makes no difference to the outcome of their case.

 

THE PERSONAL IS POLITICAL – ACCESSING NICK GRIFFIN TRIAL RECORDS UNDER FOIA

Posted on | by Anya Proops KC

The Guardian reports today that the CPS has refused a request for disclosure of its records of the 1998 race-hate trial of Nick Griffin. In the year before he was elected leader of the BNP, Mr Griffin was given a suspended prison sentence after being convicted of an offence under the Public Order Act 1986. The prosecution case centred on a magazine edited by Mr Griffin in which he dismissed the Holocaust as a hoax. The Guardian’s article indicates that the paper requested disclosure of the CPS’s records of the trial in circumstances where no transcript had been made of the hearing. It would appear that the request was refused by the CPS under s. 40 FOIA (the personal data exemption) and, in particular, on the basis that a large proportion of the requested information was ‘sensitive personal data’ as it related to the commission of an offence and Mr Griffin’s political opinions (see section 2 of the Data Protection Act 1998). It would appear that the Guardian will now lodge a complaint with the Information Commissioner. For an example of how the Information Tribunal applied s. 40 FOIA to a request for disclosure of personal data about individuals who had been made subject to ASBOs see further Camden v IC EA/2007/21

CONFIDENTIAL INFORMATION IN THE TRIBUNAL

Posted on | by Timothy Pitt-Payne KC

The Tribunal has issued a Practice Note dated 18th January 2010, dealing with the protection of confidential information under the new rules of procedure.

The Note needs to be read in conjunction with the new rules of procedure (discussed in our earlier post here).  The relevant rules are set out in the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009 (SI 2009/1976) as modified by the Tribunal Procedure (Amendment) Rules 2010 (SI 2010/43). 

The Practice Note indicates that the Tribunal will maintain its previous practice, that disputed information (i.e. the information sought by a requester but withheld by a public authority) will not usually be disclosed to the requester in the course of appeal proceedings before the Tribunal. This may mean that a party is excluded from part of the Tribunal hearing.  The Practice Note refers to rule 35 of the new Rules as providing a basis for exclusion.

The Practice Note also includes guidance about the format of witness statements (see paragraph 22) and the contents of bundles (see paragraph 25).