Tag: Information Tribunal

Information Tribunal Consultation

Posted on | by Christopher Knight

The Senior President of Tribunals, Sullivan LJ, has launched a consultation paper on altering the composition of the First-tier Tribunal (General Regulatory Chamber) in some Information Rights cases. With the support of GRC Chamber President, Judge Warren, it is proposed to remove the requirement that a judge sit with two non-legal members and allow the Chamber President flexibility to direct that certain cases be heard by a judge alone.

From the consultation document, it does not appear that the formal Composition Practice Statement will set out itself when non-legal members will be used, but the Chamber President’s anticipation is stated to be that a judge alone will be used in more procedural cases, such as whether the information is held, or time limit issues, or whether the cost of compliance limits are breached, or whether the information is readily accessible by other means. A single judge may also be used where the judge is already familiar with the evidence because of previous involvement with the case and all parties are content that a decision should be taken without a hearing. Other cases, and therefore questions of the balance of the public interest, will continue to be heard by a panel of three.

Consultation responses are to be sent by 3 October 2014.

The details of the questions, and the address for responses, can be found in the consultation paper here.

Christopher Knight

 

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

Posted on | 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

Launch of Information Law Reports

Posted on | by Rachel Kamm

 The Information Law Reports launched on 14 July 2011, with the following announcement on 11KBW’s website:

Leading chambers 11KBW and legal publisher Justis Publishing are collaborating in a first for both organisations: the creation of a new series of law reports available both in bound volumes from next week and on the established Justis platform from this morning.

Information law is ever more important, seeking to balance the “right to know” and the “right to be left alone” in an age of massive databases and global information flows. We all want to protect our own privacy; but we also want to understand how public authorities make decisions and spend our money. This new series will help professionals grapple with these issues.

Timothy Pitt-Payne QC, a barrister at 11KBW and one of the editors of the new reports, said: “There is a growing case-law, generated by the specialist Information Rights Tribunal and the higher courts. Navigating this material and quickly identifying the most important recent developments is increasingly challenging. The Information Law Reports seek to meet this need, bringing together all the most important cases in a single source. 11KBW are delighted to be working with Justis on this much-needed project.”

Masoud Gerami, Managing Director of Justis Publishing, said: “We have had a number of significant milestones in our 25-year history, mostly associated with innovation and developments which have changed legal information dissemination for the better. I am delighted that another milestone has been added to our list of achievements by producing the new series of Information Law Reports in association with 11KBW, the leaders in this increasingly important field. I believe that the complementary nature of the expertise from the partners in this project is the ideal requirement for any successful product or service, and we look forward to a continued relationship with 11KBW.”

He added: “This is also the first time that Justis Publishing has produced a product in hard copy, and we are very excited about the possibilities that the combination of hard copy and online versions will present.”

For further information, please call +44 (0)20 7267 8989 or email press@justis.com.

IMPORTANT NEW DECISION ON LATE RELIANCE, COST OF COMPLIANCE AND COMMISSIONER’S DISCRETION

Posted on | by Robin Hopkins

In Sittampalam v IC and BBC (EA/2010/0141), the Tribunal has considered a number of important questions. Framed generally (i.e. outside the specific factual context of this case), they are as follows. I add the “short answer” to the questions straight away, and then give some detailed analysis of each in turn below:

(1)  Can a public authority rely on the cost ‘exemption’ under section 12 FOIA at a late stage as of right? Answer: no.

(2)  If not, does the Commissioner have a discretion to allow late reliance on section 12? Answer: yes.

(3)  If he does, can he take into account developments after the time at which the request was refused – and in particular, can he decide that, due to those later developments, disclosure should not be ordered, even though the information should have been disclosed at the time when the request was handled? Answer: yes.

(4)  When allowing late reliance on section 12, can the Commissioner require the public authority to answer a disaggregated or narrowed version of the original request, which might bring it within the cost limit? Answer: yes.

Can section 12 be relied on as of right?

First, can a public authority claim late reliance on the cost ‘exemption’ under section 12 FOIA as of right? To put it another way, is the law on late reliance on section 12 the same as the law on late reliance on the exemptions under Part II of FOIA (which may be relied upon late as of right).

The Tribunal’s answer was “no”. This was in light of APPGER (explained in my post here), where the Upper Tribunal explained that section 12 was different from other exemptions. Section 12 is about saving public expenditure; if the requested information has already been retrieved, the expenditure has already been incurred, so there can be no saving and thus no reliance on section 12 from that point onwards.

In this case, the Tribunal concluded that (see paragraph 48):

“The proper time for raising reliance on s12 is the time required by section 17(5), i.e. promptly and in any event not later than the twentieth working day after receipt of the request. Later reliance – at least up to the conclusion of an internal review – is not a matter of right but is to be controlled by reference to the scheme and purposes of the Act.”

Does the Commissioner have a discretion to allow late reliance on section 12?

Subject to the APPGER qualifier – namely that the section 12 cost-saving exemption cannot be claimed when the cost has already been incurred – the Tribunal found that the answer to this question is “yes”.

When might late reliance on section 12 be claimed? One example would be where, because of the nature of the requested information, a public authority is able to rely on a Part II exemption without having to locate or retrieve the requested information. If the Part II exemption falls away (for example, if the Commissioner decides that it is inapplicable), the authority may then need to locate and retrieve the information, and it may be able to raise section 12 for the first time at that stage.

Can the Commissioner take into account developments after the refusal of the request?

The next question considers this scenario. The Commissioner decides that the public authority should have disclosed the requested information at the relevant time. He considers, however, that – because of events subsequent to the time at which the request was refused – disclosure would now be inappropriate. Is this allowed under FOIA?

Another way of looking at this is to ask whether the Commissioner has a discretion to order that “no steps be taken”, notwithstanding a public authority’s wrongful refusal of a request. To understand this issue, one must consider the wording of FOIA itself. Section 50(4) provides that, where a public authority has failed to comply with section 1 (disclosure duties and so on) or sections 11-17 (procedure for refusing a request), then “the decision notice must specify the steps which must be taken by the authority for complying with the requirement and the period within which they must be taken” (my emphasis). Where the Commissioner has found such a failure, this question arises: does section 50(4) mean that he must always direct that steps be taken, or does it simply mean he must stipulate what steps if any are to be taken?

In Gaskell v IC (EA/2010/0090), the Tribunal decided that the Commissioner has no such discretion: the Commissioner must always make a “steps direction”, and he cannot allow events subsequent to the relevant time to determine whether disclosure is ordered or not. The concern of the Tribunal in Gaskell was that such a discretion would give public authorities two bites of the cherry: if their refusal of the request failed (when judged by reference to the time of the handling of the request), they could invite the Commissioner to use his discretion to decline to order disclosure anyway, because of subsequent developments.

In Sittampalam, the Tribunal has taken a different view. It found that the Commissioner does have this discretion to consider subsequent events and, if appropriate, decline to order disclosure. Such cases will, however, be “exceptional” (see paragraph 60). This Tribunal took the view that the Tribunal in Gaskell had not been presented with scenarios illustrating the pitfalls of the “no discretion” position (see paragraphs 58-60). In support of its conclusion about this discretion, the Tribunal said as follows (paragraphs 53-54):

“Stanley Burnton J (as he then was) in Office of Government Commerce v IC [2008] EWHC 774 (Admin); [2010] QB 98; at [98] regarded it as arguable that the Commissioner’s decision as to the steps required to be taken by the authority might take account of subsequent changes of circumstances. In our view, that is not merely arguable but is correct, and flows from the nature of the Commissioner’s jurisdiction and its subject matter, and from the wording of the Act.

The Commissioner, when acting under section 50, is not merely deciding whether an information requester was or was not entitled to information at the time when the request was dealt with. He must also decide what is to be done. The Commissioner has a role both as guardian of the public interest in the appropriate disclosure of information held by public authorities and as a guardian of data protection rights. In our view the statute leaves to him a measure of discretion over what is the appropriate enforcement of information rights in a particular case. It would be perverse, in our view, if he were wholly debarred from taking into account fresh circumstances, not in existence at the date when the request was originally dealt with.”

Can the Commissioner require a public authority to answer a reformulated or narrowed request?

The Tribunal went on to consider whether, when allowing late reliance on section 12, the Commissioner can do so subject to the public authority handling the request in a prescribed way. It considered two possibilities.

First, is the Commissioner is entitled to allow the late reliance on terms as to disaggregation of the request, so as to prevent reliance on section 12 in relation to information that can be provided under the cost limit? The Tribunal concluded, albeit “with some hesitation”, that this is permissible (see paragraph 73):

“If during the Commissioner’s investigation the public authority is to be allowed to change its response to the request with retrospective effect, so as to raise a defence which should have been raised earlier, it does not seem unreasonable or out of line with the statutory scheme to say that the requester might also in a suitable case be allowed to refine or clarify the terms of the request retrospectively. In effect, the Commissioner would say to the public authority: ‘I will permit you to raise section 12 late but, for fairness’ sake, only on terms that you agree to permit the requester to narrow his request and that you agree to treat the narrowed request as validly made.’”

Secondly, is the Commissioner entitled to prescribe the steps to be taken so as to put the requester in the position that he would have been in if the public authority had complied with its duty to advise and assist under section 16. Compliance might enabled the requester to resubmit his request in a narrower form to which section 12 would not have been a defence.

The Tribunal again found that this was permissible, this time “with greater confidence”. It considered the case law on the relationship between sections 12 and 16. It agreed with Roberts v IC (EA/2008/0050) that entitlement to rely on section 12 is not conditional upon compliance with section16. It took the view, however, that “compliance with section 16 may be taken into account where the question is one not of entitlement but of discretion. If this is correct, it should enable the Commissioner to give greater practical effect to s16 than hitherto”. In other words, whenever late reliance on section 12 is claimed, public authorities should pay extra attention to their duties under section 16.

Robin Hopkins

PUBLIC LAW REASONABLENESS NOT A MATTER FOR THE COMMISSIONER OR TRIBUNAL

Posted on | by Robin Hopkins

The absolute exemption at s. 44 FOIA applies where the disclosure of the requested information is prohibited under any enactment. Many statutes contain such prohibitions, often subject to specified exceptions or tests. If a public authority applies that statutory regime incorrectly or in a “Wednesbury unreasonable” way – that is, if it acts unlawfully in a public law sense  – then the precondition for reliance on s. 44 FOIA falls away.

This question arises: does FOIA presume “procedural inclusivity” (i.e. the Commissioner and/or tribunal have jurisdiction to consider such public law questions) or “procedural exclusivity” (i.e. public law is a matter for the courts only; requesters must thus seek judicial review)?

In Morrissey v IC and Ofcom (EA/2009/0067), the first-tier tribunal followed the approach taken in Hoyte v Civil Aviation Authority (EA/2007/0101) in supporting inclusivity. In other words, it considered that the Commissioner and tribunal do have jurisdiction to conduct “reasonableness reviews”.

In Morrissey, the tribunal asked itself whether Ofcom had acted reasonably in withholding information under s. 44 FOIA in reliance on s. 393(2)(a) of the Communications Act 2003. Its answer was ‘yes’. Ofcom nonetheless appealed, on the grounds that “reasonableness reviews” are beyond the statutory powers of the Commissioner and tribunal.

The Upper Tribunal has agreed with Ofcom, and endorsed procedural exclusivity: see GIA/605/2010. (Its decision was not concerned with the ultimate outcome of the case – which concerned a request for information about Ofcom’s approach to equal opportunities – but simply with this point of principle).

Its reasoning was as follows. Disparate caselaw illustrates a presumption that lower courts and tribunals can resolve public law prerequisites to their “core business” – but caselaw does not show any presumption that regulators can do so. Under FOIA, the tribunal’s jurisdiction is parasitic upon that of the regulator, the Commissioner. The Commissioner’s jurisdiction is to decide whether a request “has been dealt with in accordance with the requirements of Part I [of FOIA]” (s. 50(1) FOIA). (The tribunal’s jurisdiction is governed by s. 58 FOIA: this says it must determine whether the decision notice was “in accordance with the law” – rather than “Part I of FOIA”. It does not appear that the Upper Tribunal considered anything to turn on this difference).

As to the construction of the particular provision in question, the Upper Tribunal found that the purpose of s. 393 of the Communications Act 2003 is to reassure commercial broadcasters that Ofcom can only lawfully disclose their information if it considers it right to do so for one of the purposes in s. 393(2).

The Upper Tribunal was clear as to the broader implications of its decision: “it must be for the public authority initially to determine whether the information requested is exempt “by virtue of” s. 44” (paragraph 54).

It concluded, however, that judicial review is not the only alternative in these circumstances: the first-tier tribunal may not have jurisdiction over such public law points, but the Upper Tribunal does – provided it has the blessing of the administrative court in any given case.

A BAD THING?

Posted on | by Timothy Pitt-Payne QC

The website of the Information Tribunal (or FTT Information Rights, to be precise) is an invaluable source of information.  The lists of current cases make it possible to track the progress of potential test cases, and also give information about hearing dates and venues – essential for any members of the Press or public wishing to attend.  There is all sorts of useful information – e.g. about the Tribunal judiciary.  Perhaps most important of all, there is a searchable and complete collection of Tribunal decisions, together with other information law cases. 

Today the site displays an ominous notice.  As a result of the merger of the Court Service and the Tribunal Service, the site will be archived with effect from 1st April.  Information, forms, and details about services, will be available from www.justice.gov.uk and other sites.  But it is wholly unclear whether the same level of information will be made available as at present; in particular, it is not clear whether tribunal decisions will still be published online.  Although FTT and Upper Tribunal decisons are also available on Bailii, the Information Tribunal website is a much better tool for anyone specifically interested in Information Law.  Let’s hope that all that is happening is a change of web address rather than a change in format or content.