Tag: FOIA

HOW BUSY IS THE TRIBUNAL?

Posted on | by Timothy Pitt-Payne KC

The First-tier Tribunal (Information Rights) – as we must now learn to call it – has recently published on its website a list of its current cases (updated to 20th January 2010).  This gives an interesting insight into the volume and type of work reaching the Tribunal.

Cases are numbered by year of receipt, and in the order that they are received: for instance,  EA/2009/100 is the 100th case received in 2009.  This means that the case numbering system indicates how many appeals were received in a particular calendar year.  On this basis, the Tribunal seems to have received 123 cases in 2009, and 30 (so far) in 2010;  which suggests a sudden sharp increase in its workload.

The list shows 102 live cases.  Of these, only one is identified as a Data Protection Act case.  11 cases are identified as involving the Environmental Information Regulations.  All of the other appeals (90 cases) are brought solely under the Freedom of Information Act.

As the figures suggest, free-standing DPA cases before the Tribunal are rare.  There are also few DPA cases that reach the ordinary courts.  But many FOIA cases involve DPA issues.  So a significant volume of DPA case-law is being generated by the Tribunal; but most of this is in the context of FOIA, and in particular the data protection exemption in FOIA section 40. 

 

S. 41 FOIA: BREACH OF CONFIDENCE MUST BE “PROBABLE” RATHER THAN “ARGUABLE”

Posted on | by Robin Hopkins

The Information Tribunal’s judgment in Higher Education Funding Council for England v Information Commissioner (EA/2009/0036) is its most definitive decision to date on the exemption for confidential information provided by s. 41 FOIA. Most decisions about s. 41 will – for now – need to take into account the issues addressed in this judgment.

 

The Council, a statutory body for the administration of higher education funding, relied on this exemption in refusing to disclose to a Guardian journalist information relating to the state of the buildings at Higher Education Institutions that contributed to the Council’s database. The Commissioner decided that s. 41 was not engaged. The Tribunal agreed, addressing a number of important issues along the way.

 

First, and most crucially: s. 41 is triggered by an “actionable” breach of confidence. Does “actionable” in this context denote a claim that is likely to succeed on the balance of probabilities (as the Commissioner contended, supported by Guardian News as an additional party) or merely a claim that is properly arguable (as the Council argued)? The Tribunal regarded this as a novel point on which the statutory wording was ambiguous. Accordingly, it turned to Hansard, which provided an unequivocal resolution: “actionable” for s. 41 purposes means (in the words of the bill’s sponsor, Lord Falconer) “being able to go to court and win”. For public authorities wishing to rely on s. 41, a merely arguable potential action will not suffice.

 

Next, the Tribunal considered the long-established definition of actionable breach of confidence from Coco v AN Clark (Engineers) Ltd [1968] FSR 415, the first limb of which requires that the information has the “necessary quality of confidence”. Guardian News conceded that the information was neither trivial nor widely accessible, but argued that limb 1 of Coco imposed two further requirements, namely: the party claiming confidentiality must demonstrate some value it would derive from non-disclosure of the disputed information, and the information must be confidential from the objective standpoint of the reasonable person. While it found that both of these conditions were met in this case, the Tribunal found it unnecessary to read these supplementary questions into the Coco test.

 

Third, the Tribunal considered the principle (under limb 3 of Coco) that a breach of confidence is only actionable if the confider suffers detriment thereby. Caselaw shows that, where private (as opposed to commercial) information is at stake, courts have not insisted on this detriment criterion. Nonetheless, the Tribunal declined to deviate from Coco: for s. 41 to be engaged, the public authority must make out detriment. The standard of detriment is not onerous: reputational damage suffices. In the circumstances, however, it was only the higher education institutions who were capable of suffering detriment, and not the Council in its own right, because the latter was merely the servant of the former.

 

Finally, the Tribunal, applying the proportionality test from HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776, held that a public interest defence would defeat a claim for breach of confidence in these circumstances. Notably, the Tribunal held that even if disclosure were to result in uncooperative behaviour from Higher Education Institutions, little weight should be attached to any such detriment based on obstructive behaviour “which would fall short of the standard of stewardship which the public is entitled to expect”.

NEWS FLASH: INFORMATION TRIBUNAL RIP

Posted on | by Anya Proops KC

Today, we should all pause and reflect on the passing of the much loved Information Tribunal. With effect from this coming Monday (18 January 2010), the Information Tribunal in its existing incarnation will cease to exist and all work which has hitherto been done by the Tribunal will be transferred to the new General Regulatory Chamber. The transfer is to be effected in accordance with the Transfer of Functions Order 2010 (SI 2010/22) (“the Transfer Order”). It is important to be aware of the following systemic changes which will result from the transfer:

 

1.                   from 18 January 2010, all appeals under FOIA will be heard either in the First-tier Tribunal (Information Rights) (“the FTT”) or in the Upper Tribunal (“UT”);

2.                   the question whether particular appeals are to be heard in the FTT or the UT is, in principle, to be determined by the new tribunal rules governing the operation of the FTT and the UT (see paragraph 2(3) of the Transfer Order);

3.                   there are in fact two sets of rules which are relevant in this context:

 (a) the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009, SI 2009/1976 (“the FTT Rules”) (as amended very recently by the Tribunal Procedure (Amendment) Rules 2010, SI 2010/43); and

(b) the Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2968/2008 (“the UT Rules”) (as amended by SI 2009/274, SI 2009/1975 and SI 2010/43);

4.                   as matters currently stand, these Rules say very little as to how FOIA appeals are to be allocated as between the two different tribunals, save that all appeals under s. 60 FOIA (appeals against national security certificate) must be heard in the UT (see paragraph 24 of the Tribunal Procedure (Amendment) Rules 2010, SI 2010/43). It is understood that, apart from appeals brought under s. 60 FOIA, the issue of allocation of appeals as between the two tribunals is likely to be determined on the basis of (forthcoming) practice directions rather than by reference to the Rules per se;

5.                   the FTT Rules and the UT Rules will apply in respect of all new appeals brought under FOIA (i.e. appeals which are commenced on or after 18 Janaury 2010);

6.                   in respect of appeals commenced prior to 18 January 2010, the tribunal will have a discretion as to whether to apply: (a) the old rules (i.e. the Information Tribunal (Enforcement Appeals) Rules 2005); (b) the new rules; or (c) a combination of the two sets of rules (see further paragraph 3 of schedule 5 to the Transfer Order which contains the relevant transitional provisions);

7.                   the FTT Rules and UT Rules will in due course be supplemented by practice directions – see further the new practice direction on confidentiality and redaction of documents (dated 18 January 2010). 

 

 

 

The Open University? Application of FOIA to University Course Materials

Posted on | by Anya Proops KC

The question of whether and to what extent FOIA can be used as a device to open up public access to educational resources is obviously an important one for our society. It is a question which was very recently considered in the case of University of Lancashire v IC (EA/2009/0034). In that case, the Tribunal was called upon to decide whether a university (UCLAN) had acted unlawfully in refusing a request made under FOIA for disclosure of course materials relating to a BSc degree course in homeopathy. The request had been refused initially on the basis that disclosure of the course materials would damage UCLAN’s commercial interests (application of s. 43 FOIA). Subsequently, when the matter came before the Commissioner, UCLAN also argued that it was entitled to refuse disclosure because of the risks disclosure would pose to the effective conduct of its affairs (application of s. 36 FOIA). The Commissioner held that UCLAN had erred in refusing to disclose the course materials, save that he accepted that certain elements of the course materials, and particularly empirical case studies, could be withheld under s. 41 FOIA (the confidential information exemption). UCLAN appealed the Commissioner’s decision to the Tribunal.

The Tribunal dismissed UCLAN’s appeal. In summary, it held that:

·       with respect to the application of s. 43 FOIA (the commercial interests exemption):

o      despite being a charitable institution, UCLAN did have ‘commercial interests’ and those commercial interests were engaged in respect of teaching materials produced for its degree courses (§31);

o      however, it could not be said that, at the time of the request (July 2006), there was any real and significant risk that disclosure of the homeopathy course materials would prejudice UCLAN’s commercial interestsand accordingly s. 43 was not engaged (§§32-39);

o      in any event, had s. 43 been engaged, the public interest balance under s. 2 FOIA would have weighed firmly in favour of disclosure (§§40-50).

·       with respect to the application of s. 36 FOIA (the public affairs exemption), the exemption was not engaged because the opinion of the qualified person relied on for the purposes of this section was neither reasonable in substance nor reasonably arrived at (§§52-62).

The following aspects of the Tribunal’s decision are particularly worthy of note:

·       in line with the earlier Student Loans case, the Tribunal took a broad approach to the concept of ‘commercial interests’ for the purposes of s. 43. It readily accepted that universities could have commercial interests in the courses which they ran;

·       UCLAN argued before the tribunal that the course materials were exempt from disclosure not least having regard to the facts that: (a) they contained a significant amount of third party copyrighted information and (b) disclosure of that copyrighted information under FOIA would disincline third parties from contributing to course materials in the future. The tribunal rejected these arguments. It did so on the basis that: (1) disclosure of information under FOIA would not in any way have diluted any copyright enjoyed by the third parties and (2) there was in any event no sufficient evidence before the tribunal to substantiate UCLAN’s case that disclosure of the copyrighted material would have had an alienating effect on third party contributors.

·        the Tribunal highlighted the degree of rigour which must be applied when the relevant qualified person is seeking to formulate an opinion which engages s. 36. It also highlighted that the public authority must itself provide evidence that the person who reached the relevant opinion was a ‘qualified person’ for the purposes of s. 36 (§53);

·       on the question of the public interest test, the Tribunal found that there were strong public interests in disclosure. Those interests included both: (1) a general public interest in members of the public being able to test the educational value of publicly funded degree courses and (2) a specific public interest in accessing information relating to a homeopathy degree course which was by its very nature inherently controversial.

The parties were represented by 11KBW’s Tim Pitt-Payne (counsel for UCLAN) and Anya Proops (counsel for the Commissioner).

OFCOM & THE AGGREGATION OF PUBLIC INTEREST CONSIDERATIONS: UPDATE

Posted on | by Anya Proops KC

On 17 November 2009, the Supreme Court will hear the Information Commissioner’s appeal against the Court of Appeal’s judgment in Office of Communications v Information Commissioner [2009] EWCA Civ 90 (Ofcom). In Ofcom, the Court of Appeal held that, when multiple exceptions were engaged in respect of particular information, the public interest test provided for under regulation 12(1)(b) of the Environmental Information Regulations 2004 would operate so as to entitle the public authority to aggregate all the different public interest factors relating to all applicable exceptions in a single, compendious public interest balancing exercise. This judgment was controversial, not least because it represented a departure from the well-established approach of tailoring public interest considerations to the individual exception in issue. Notably, in a recent Information Tribunal decision, the Tribunal highlighted some of the practical difficulties posed by the adoption of the aggregate approach to the public interest test (South Gloucestershire v Information Commissioner (EA/2009/0032), §§48-52). 11KBW’s Clive Lewis and Akhlaq Choudhury will be appearing on behalf of the Commissioner in the Supreme Court.

Abortion statistics: identification of patients and doctors held to be unlikely

Posted on | by Robin Hopkins

In 2003, the Department of Health significantly reduced the detail of publicly available statistics on abortion operations: for example, no information was any longer to be released about post-24-week abortions carried out on the grounds of foetal medical defects. The Department relied principally on s. 40 FOIA in refusing the Prolife Alliance’s request for more detailed data. The Information Tribunal has, however, ordered the statistics to be disclosed: see Department of Health v IC (Additional Party: the Pro Life Alliance) (EA/2008/0074). The Tribunal agreed with the Department that the requested abortion statistics, although entirely anonymised, did constitute personal data because they were not anonymous in the hands of the data controller. The Department’s principal concern, namely the inferential identification of doctors or patients, was not, however considered ‘likely’ in the circumstances. This factual finding meant that, in the Tribunal’s view, the release of the requested personal data was fair and lawful and that (under paragraph 6(1) of Schedule 2 to the DPA) the potential prejudice to patients and doctors was outweighed by legitimate third party interests in (inter alia) monitoring compliance with abortion law, identifying abortion trends, informing public debate and encouraging accountability of medical practitioners. The decision is of note for its detailed analysis of the ways in which individuals might be identified from statistical data, and for the Tribunal’s reliance on the Corporate Officer of the House of Commons litigation (in its various stages) for guidance on the balancing test under paragraph 6(1) of Schedule 2 to the DPA.