DEPUTY PM DETAILS GOVERNMENT’S PLANS TO EXTEND FOIA

January 7th, 2011 by Robin Hopkins

This morning’s speech by Nick Clegg on civil liberties had much to say about FOIA and access to information more broadly.

The Deputy Prime Minister said that the progress in transparency brought about by the introduction of FOIA has stalled: FOIA, he said “was a good start, but it was only a start. Exceptions remain far too common. And the available information is too often placed behind tedious bureaucratic hurdles.”

He hailed the Treasury’s COINS database, which details public services expenditure, the work of The Open Knowledge Foundation in processing that data for ready public consumption, and the Cabinet Office’s new transparency rules concerning the publication of spending figures by Whitehall departments (the Cabinet Office’s website explains its work on transparency).

He advertised the government’s plans for a Public Data Corporation, which will “bring existing government bodies together into one organisation, responsible for disseminating a wealth of data” (on which, see The Guardian‘s article here).

FOIA’s scope is to be extended “to cover potentially hundreds more bodies; including UCAS, the Association of Chief Police Officers, the Financial Ombudsman Service and many more”. A complete list has yet to be announced. The government does not, it appears, intend to make bodies such as water utility companies or Network Rail subject to FOIA.

Nor, it appears, will the Secretary of State’s right of veto over Tribunal decisions be repealed.

The 30-year rule is being scaled back to a 20-year rule.

Finally, the Justice Select Committee is to be tasked with “post-legislative scrutiny” (although it is not entirely clear to what legislation this task will apply) of how FOIA is being implemented.

Data protection crept in via Mr Clegg’s recognition that government “must be very respectful in handling personal information”. The EIR did not get a mention in the speech.

The full text of Mr Clegg’s speech is available here.

 

“PRACTICE DIRECTION FOR THE SEALING OF ROYAL WILLS” NOT HELD BY MOJ

January 3rd, 2011 by Robin Hopkins

Brown v Information Commissioner and the Ministry of Justice (EA/2010/0119) concerned a request for a document which had been referred to in judgments from the High Court and Court of Appeal concerning the appellant’s unsuccessful application to view the will of the late Princess Margaret. The document had been referred to as a “practice direction for the sealing of royal wills”. The request for this document under FOIA was initially made to the Master of the Rolls, and was thereafter handled by the Ministry of Justice (which has responsibility for Her Majesty’s Courts Service).

The Tribunal agreed with the Information Commissioner and the MOJ that an adequate search had been conducted and that, on the balance of probabilities, the requested document was not held at the time of the request. It also clarified this statutory curiosity relied on by the appellant: the Master of the Rolls is not a listed public authority, but he is – under section 7 of the Public Records Act 1958 – responsible for “the records of the Chancery of England”, “including those created after the commencement of this Act”. The Tribunal has, however, explained that this is a matter of “antiquarian interest” concerning records of the courts of Chancery prior to the reorganisation of the courts in the 19th century. Requests under FOIA can, therefore, not be made to the Master of the Rolls.

 

DUCHY OF LANCASTER NOT A PUBLIC AUTHORITY

January 3rd, 2011 by Robin Hopkins

The Queen is the Duke of Lancaster. Since the fourteenth century, the Duke of Lancaster has always been the reigning monarch. The Chancellor of the Duchy of Lancaster is a member of the Cabinet. He administers bona vacantia within and makes a number of official appointments for the Duchy.

The Duchy is not, however, a public authority for the purposes of the EIR. So held the Tribunal in Cross v ICO (EA/2010/0101), a decision which is part history lesson, part legal judgment.

The history lesson in brief: the Duchy was created in 1351 from lands which had been seized by Henry III in 1265. By a charter of 1399, Henry IV ensured the separation of the Duchy as his hereditary family estate from those of the Crown. The Duchy of Lancaster Case (1561) 1 Plowd. 212 confirmed that the Duchy is an estate inherited by the sovereign in his or her private capacity, rather than qua head of state.

The legal judgment in brief: the Tribunal found that the Duchy is not a government department, a publicly-owned company or a body that carries out functions of public administration (or indeed public functions at all).  It confirmed that, in this legislative context, “the Crown” means the central executive arm of government. It accepted – but emphasised that it was not confirming – that the Tribunal has jurisdiction over challenges to the Commissioner’s finding that a body is not a public authority. As to “public administration”, the Tribunal applied Port of London and Network Rail – but promulgated its decision before the Upper Tribunal’s recent decision in Smartsource (on which, see Anya Proops’ post here).

The Tribunal will hear a similar case concerning the Duchy of Cornwall shortly.

 

WATER UTILITY COMPANIES NOT ‘PUBLIC AUTHORITIES’ UNDER THE EIR

November 25th, 2010 by Anya Proops QC

The Upper Tribunal has this week handed down an important decision on the question of whether privatised water utility companies are ‘public authorities’ for the purpose of the Environmental Information Regulations 2004 (EIR): Smartsource v IC & 19 Water Companies (case no. GI/2458/2010). The background to the appeal was that Smartsource had submitted near identical requests for disclosure of information to some 19 water utility companies. It was not in dispute that the requests fell to be addressed under the EIR. The companies refused to provide the requested information on the basis that they were not ‘public authorities’ for the purposes of r. 2(2) EIR and, hence, were not subject to the disclosure obligations provided for in r. 5 EIR. The Commissioner rejected Smartsource’s complaint about the refusal on the basis that he accepted that the companies were not public authorities under r. 2(2). Smartsource appealed the Commissioner’s decision to the tribunal. The importance of the issues at stake in the case resulted in the appeal being transferred to the Upper Tribunal. The central issues which the Upper Tribunal was called upon to determine were as follows: (1) did the companies ‘carry out functions of public administration’ such that they fell within limb 2(2)(c) of the r. 2 definition of public authority; (2) alternatively, were they ‘under the control’ of a relevant public authority such that they fell within limb 2(2)(d) of the r. 2 definition.

With respect to the first issue, the Tribunal held that the companies did not carry out functions of public administration. It reached this conclusion applying a multifactoral approach akin to the approach adopted in the earlier cases of Network Rail v IC (EA/2006/0061) and Port of London Authority v IC & Hibbert (EA/2006/0083). Notably, the Tribunal rejected arguments advanced by Smartsource that the companies fell within limb 2(2)(d) of the definition because they: were appointed as statutory undertakers; were subject to a range of conditions imposed under statute; were subject to a comprehensive regulatory regime; were unable to choose their own customers or set their own prices; were obliged to provide a universal service; and would be subject to State intervention in the event that they failed. With respect to the second issue, the Tribunal held that that the companies were not ‘under the control’ of a relevant public authority for the purposes of r. 2(2)(d). In reaching this conclusion, the Tribunal accepted arguments advanced on behalf of the Commissioner and the companies that: the concept of ‘control’ in this context meant something more than that the body in question was merely subject to a stringent regime of statutory regulation; the aim of r. 2(2)(d) was to capture State/Executive functions in all their various guises and not the activities of privatised companies of the sort which were in issue in the instant case.

Importantly, the Tribunal also rejected ‘hybridity’ arguments to the effect that a body can be a public authority under the EIR for some purposes but not for others. According to the Tribunal, the way in which r. 2 was formulated meant that the body either was or was not a public authority (cf. the approach adopted in Port of London v IC).

 

UNHELPFUL PRESENTATION OF REDACTED MATERIAL COULD BREACH SS. 1 & 16 FOIA

August 10th, 2010 by Robin Hopkins

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.”

 

WITHHOLDING INFORMATION HELD FOR PURPOSES OF JOURNALISM

June 25th, 2010 by Anya Proops QC

The BBC is an organisation which is subject to the duties imposed under FOIA only in respect of information held ‘for purposes other than those of journalism, art or literature’ (Part VI of Schedule 1 to FOIA). On Wednesday, the Court of Appeal handed down a judgment which considered the question of how information held by the BBC should be approached if it was held for a number of different purposes, including but not limited to journalistic purposes – see the judgment here. The Court of Appeal held, irrespective of whether the information was held for multiple purposes, provided that one of the purposes included a genuine journalistic purpose, the information was exempt from the application of the duties embodied in FOIA. In reaching this conclusion, the Court of Appeal rejected the proposition that the question whether the information should be disclosed should be decided by reference to the ‘dominant purpose’ for which the information was held. The Court of Appeal also gave guidance on the meaning of the concept of ‘journalism’. In particular, it agreed with the tribunal that the three elements of functional journalism were (a) the collection, writing and verification of material; (b) the editing and presentation of material for publication; (c) the upholding of journalistic standards by supervision, training and review of journalists and their work. The Court of Appeal went on to hold that the BBC had been entitled to treat a report examining the BBC’s coverage of events in the Middle East as falling within the journalism exemption. In reaching this conclusion, the Court of Appeal confirmed that the fact that the report had been used by the BBC for strategic managerial purposes did not prevent it falling within the journalism exemption.