Home Office publishes response to its consultation on communications data

November 16th, 2009 by Robin Hopkins

The Home Office has published a summary of responses to its April 2009 consultation paper on ‘communications data’, i.e. information about a communication that does not include the content of the communication itself. At present, such data is owned by communications service providers and accessed by certain public authorities under disparate statutory powers for the purposes of combating, for example, fraud, terrorism and other serious crime. The government is considering an overhaul so as to bring all communication types (such as web chat) and all relevant service providers (some of whose contractual positions place them beyond the current statutory arrangements) within the system.

 

The attendant tension between individual liberty and public protection is reflected in the 221 responses to this consultation.

 

A substantial minority of respondents objected in principle to any ‘surveillance’ of communications. A majority (albeit a fairly narrow one) agreed that communications data served an important public purpose and that the government should therefore act to maintain the capability of public authorities to make use of this type of information.

 

As to what form this action should take, only one element of the government’s proposed approach was widely welcomed, namely its rejection of a central database for holding all data of this type. Reservations were otherwise expressed about technological feasibility, data security and the proportionality of public authorities’ use of communications data.

 

Nonetheless, such reservations were not deemed forceful or widespread enough to deter the government from its proposed course. A number of respondents’ suggestions have been rejected, including the specifying of categories of data which should not be retained, and the requirement for a magistrate’s authorisation before communications data can be accessed.

The government is also satisfied that the DPA 1998 and RIPA 2000 provide sufficient safeguards against abuse of such data. A legislative review is, however, proposed, to see if a single means of authorised access (through RIPA 2000) would be practicable. Fresh or consolidating legislation appears likely.

 

NEW TECHNIQUES FOR APPLYING RIPA – OUTCOME OF HOME OFFICE CONSULTATION

November 10th, 2009 by Anya Proops QC

The Regulation of Investigatory Powers Act 2000 (RIPA) has attracted a considerable amount of negative publicity over the past couple of years. In no small part, this has been due to public outcry in response media reports of local authorities using their powers under RIPA to engage in activities such as monitoring the use of domestic wheelie bins, recording dog-fouling incidents on camera and carrying out surveillance on families suspected of trying to cheat the school catchment system (see further the discussion of the case of Paton v Poole Borough Council below). Concerns have been expressed by members of the public as well as privacy campaigners that such actions on the part of local authorities constitute abuses of their powers both because the surveillance powers of the state should not be used for trivial purposes and because there has been a failure on the part of the authority to achieve a proper balance between the rights of the state to identify civil and criminal wrongdoing and the individual’s right to have his or her privacy respected. Those concerns resulted in the Home Office commencing a consultation in April 2009 on proposals to introduce new RIPA techniques which would purportedly help ensure that RIPA would only be used when it was necessary and proportionate. Last week, the Home Office published a summary of the responses to those proposals along with an announcement. In the announcement, the view expressed by the Minister for State Security, Counter-Terrorism and Policing, David Hanson, was that the responses to the consultation had been broadly positive. He said that, subject to certain minor amendments, he would now take steps to introduce the proposals as secondary legislation. The announcement suggests that the new legislation will aim to:

  • clarify the test of necessity and proportionality so techniques will not be used for trivial purposes such as investigating dog fouling or people putting bins out a day early
  • raise the rank of the authorising officer for RIPA techniques in local authorities to senior executive at a minimum of ‘Director’ level
  • give elected councillors a role in overseeing the way local authorities use covert
    investigatory techniques
  • require constituents’ communications with MPs on constituency business to be
    treated as confidential information, and therefore subject to authorisation by a
    higher rank of officer
  • treat covert surveillance of legal consultations as ‘intrusive’ rather than ‘directed’
    surveillance, meaning that it can only be carried out by a very limited number of
    public authorities, primarily the police and intelligence agencies, and only with
    independent approval
  • clarify how provisions currently in the Policing and Crime Bill will reduce
    bureaucracy relating to RIPA in police collaborative units comprising two or
    more forces

It also appears that, following a proposal by the Local Government Association, local authorities will need to appoint a single official to be responsible for ensuring that all authorising officers are of an appropriate standard. Notably, the Home Office rejected suggestions that a more radical approach should be adopted, namely removing local authorities from the scope of RIPA altogether.

Coincidentally, the Investigatory Powers Tribunal, chaired by its President, Mummery LJ, was itself hearing a complaint last week brought under s. 65 RIPA that a particular local authority had unlawfully exercised its surveillance powers under RIPA. In Paton v Poole Borough Council, which was heard on 5 and 6 November, the IPT was called upon to decide whether the Poole BC had acted unlawfully under RIPA when it conducted directed surveillance of Ms Paton and her family. The surveillance had been conducted in circumstances where the council suspected that Ms Poole may have been dishonestly trying to abuse the school catchment system by giving a false address when applying for a place for her child at a local school. It was accepted by the council before the IPT that, in fact, its suspicions about Ms Paton had proved to be unfounded. However, the council nonetheless sought to maintain the position before the IPT that the surveillance constituted a necessary, proportionate and, hence, lawful exercise of its powers under RIPA. In advancing this case, it was argued on behalf of the council that there existed no simple means of uncovering fraudulent abuses of the school catchment system that did not involve any invasion of privacy rights. The council was represented by 11KBW’s Ben Hooper.

 

ACCESSING LOCAL AUTHORITY INFORMATION UNDER THE AUDIT COMMISSION ACT 1998

November 9th, 2009 by Anya Proops QC

It is often thought by members of the public that the only way to access information relating to how local authorities are spending public monies is through the application of the Freedom of Information Act 2000. However, a recent judgment of the High Court has highlighted that such information may also be accessed in certain circumstances under another much less well known enactment, namely the Audit Commission Act 1998 (ACA). In summary, section 15 ACA permits ‘any person interested’ (e.g. local council tax payers) to inspect a local authority’s accounts and documents ‘relating to’ those accounts at the time of the authority’s annual audit.

In Veolia ES Nottinghamshire Ltd v Nottinghamshire CC & Ors [2009] EWHC 2382 (Admin), an inspection request was submitted to the Nottinghamshire CC by an interested person. The documents falling within the ambit of the request included a particular waste management contract which Veolia had entered into with the Council, along with invoices which Veolia had supplied to the Council under the contract. The Council decided that it was obliged to permit inspection of these documents under s. 15 ACA. Veolia challenged that decision by way of judicial review. Evidently, in mounting that challenge, Veolia was concerned that the information contained in the documents was commercially sensitive and should not therefore be permitted to enter the public domain under s. 15. Veolia’s case before the High Court was advanced principally on the basis that inspection should not be permitted under s. 15 as the contract and the invoices did not ‘relate to’ the local authority’s accounts. This argument was firmly rejected by Cranston J. He held that the words ‘relating to’ were sufficiently flexible that they could accommodate the documents in issue.

In reaching this conclusion, Cranson J evidently had in mind that the function of s. 15 is to enable interested persons to inspect documents which reveal precisely how the local authority is spending public monies. He concluded, in effect, that such a function would be frustrated if such persons could not consider the various contracts and invoices under which the local authority made payments to third parties.

It is apparent from the judgment in Veolia, that considerations relating to commercial sensitivity and confidentiality will not be relevant to the decision as to whether documents may be inspected under s. 15. This very generous approach to accessing commercial information under the ACA is to be contrasted with the more restrictive approach adopted under FOIA and the Environmental Information Regulations 2004 (see further the specific exemptions afforded under those enactments in respect of confidential and commercial information; and see also South Gloucestershire Council v Information Commissioner (EA/2009/0032) for a recent example of how these exemptions apply in practice – see further the post on this case). Veolia’s application for permission to appeal against Cranston J’s judgment is currently being considered by the Court of Appeal.

11KBW’s Michael Supperstone QC, Tim Pitt-Payne and Peter Oldham all appeared in the case.

 

 

Make it intelligible

March 25th, 2009 by Panopticon Blog

Posted by James Goudie QC

One of the circumstances when there is a duty to provide information is when there is a duty to consult. One of the four elements of fair consultation is the provision of adequate information on which to respond. In R (Breckland DC) v The Boundary Committee and R(East Devon DC) v The Boundary Committee [2009) EWCA Civ 239] concerned with proposals for local government reorganistion, the Boundary Committee (BC) was under a statutory duty to solicit representations upon their draft proposals and to take account of those representations. The Court of Appeal today held that this meant that the BC must carry out a process of consultation, including publishing enough material to enable all those interested to respond intelligently, and that the information must be published in a form which members of the public may understand. The Court of Appeal further held that the BC had failed adequately to consult on affordability, because they had not provided sufficiently intelligible information in relation to that criterion or given adequate time for response to it.

 

House of Lords Judgment in Sugar v BBC

February 18th, 2009 by Anya Proops QC

In Sugar v BBC  [2009] UKHL 9, the House of Lords has delivered an important judgment on the application of FOIA to so called ‘hybrid authorities’. The case concerned a request which was made by Mr Sugar in January 2005 for disclosure of a report which was held by the BBC and which concerned the BBC’s coverage of the Middle East. The BBC refused to release the report on the grounds that: (a) it was only subject to a duty to disclose information under section 1 FOIA to the extent that it was a ‘public authority’ for the purposes of that section; (b) part IV of schedule 1 to FOIA provides that the BBC is a ‘public authority’ only ‘in respect of information held for purposes other than those of journalism art or literature’; (c) the report was held for the purposes of journalism and, hence, the section 1 duty was not triggered in respect of the report. The Commissioner agreed with the BBC’s analysis. He went on to conclude that, because the BBC could not be treated a ‘public authority’ for the purposes of Mr Sugar’s request, he had no powers under section 50 FOIA to issue  a decision notice in respect of Mr Sugar’s complaint. On appeal by Mr Sugar to the Information Tribunal, the BBC and the Commissioner argued that the Tribunal had no jurisdiction to hear the appeal as no decision notice had been issued under section 50. The Information Tribunal allowed Mr Sugar’s appeal against the Commissioner’s decision. It held that the Commissioner’s decision was a decision notice under section 50(3); that the BBC was a public authority for the purposes of section 1 FOIA and that the report was not held for the purposes of journalism. The BBC sought a judicial review of the Tribunal’s decision. That claim was upheld at first instance and on appeal to the Court of Appeal. Mr Sugar appealed to the House of Lords.

In a majority judgment (Lord Hoffman and Lady Hale dissenting), the House of Lords held that the Tribunal’s decision was sound in law. Importantly, the House of Lords found that the Commissioner had erred in concluding that Mr Sugar had not made a request under section 1 FOIA merely because the nature of the requested information. It found that, when dealing with ‘hybrid authorities’ such as the BBC (i.e. authorities which are only public authorities under FOIA for certain purposes), it would be impractical for the Commissioner to decide whether he had jurisdiction to consider a complaint simply by referring to the nature of the requested information. The correct approach would be for the Commissioner to treat hybrid authorities as always being ‘public authorities’ for the purposes of section 1, irrespective of the nature of the requested information. On this approach, the Commissioner would have jurisdiction to decide a complaint brought by the applicant, albeit that he would have to have regard to the provisions of schedule 1 as and when he was deciding whether the authority erred in refusing to disclose the requested information.  Notably, Lord Phillips commented on an obiter basis that, where information not falling within the scope of FOIA was requested by an applicant, a hybrid authority was lawfully entitled under FOIA to say to the applicant that it did not hold the requested information, even if in physical terms it did hold the requested information. Lord Phillips opined that this result was permitted by section 7 FOIA (para. 33).

In their dissenting judgments Lord Hoffmann and Lady Hale took a very different view of the matter. They concluded that schedule 1 FOIA defined the circumstances in which a body would be a ‘public authority’ for the purposes of section 1 and, in the case of the BBC, those circumstances did not include where the information was held for the purposes of journalism, art or literature; that the information requested by Mr Sugar was held for the purposes of journalism; that the BBC was accordingly not a ‘public authority’ under FOIA for the purposes of the request made by Mr Sugar; and, hence, that the Commissioner had been right to conclude that he had no jurisdiction in respect of Mr Sugar’s complaint. The Commissioner, who supported Mr Sugar’s case before the High Court and the Court of Appeal, was not a party to the appeal to the House Lords. 11KBW’s Ben Hooper represented the Commissioner in the High Court and the Court of Appeal.

The judgment:

https://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/2009/9.html&query=title+(+sugar+)+and+title+(+v+)+and+title+(+british+)+and+title+(+broadcasting+)&method=boolean

 

MPs expenses – another twist in the tale

January 21st, 2009 by Timothy Pitt-Payne QC

The long-running story of how the Freedom of Information Act (FOIA) applies to MPs’ expenses took another twist today, with the abandonment of plans to amend FOIA so as to limit disclosure.

In February last year the Information Tribunal ruled that the House of Commons had to disclose detailed information about claims by individual MPs for the Additional Costs Allowance (ACA).  Broadly speaking, this allowance defrays hotel or second home expenses incurred in the performance of Parliamentary duties.  An appeal by the House of Commons to the High Court was unsuccessful.  The effect appeared to be that in the great majority of cases the House of Commons would need to disclose information about each item of expenditure claimed by each individual MP.  Although the case was specifically about the ACA, clearly it had implications for MPs’ expenses generally.

Last week Harriet Harman MP, Leader of the House of Commons, announced a proposal whereby information about MPs’ expenses would be published in summary form, under 26 different categories, rather than item by item.  FOIA would be amended so as to negate the effect of the earlier Tribunal and High Court decisions.

Today it was announced at prime minister’s questions that the proposed amendment had been shelved.  It remains to be seen whether there will be any further proposal to amend the legislation.

For those with a close interest in FOIA, the mechanism used for the proposed amendment was very interesting.  The public authorities covered by the Act are listed in Schedule 1.  Section 7(3) allows the Secretary of State by order to amend Schedule 1, inter alia so as to limit to information of a specified description the entry relating to any public authority.  The proposed order would have provided that the Houses of Parliament were not “public authorities” in relation to information about MPs’ expenses, save to a very limited extent.  In other words, section 7(3) effectively allows the scope of the Act to be reduced, without the need for primary legislation.

The Information Tribunal decision referred to above is at https://www.informationtribunal.gov.uk/DBFiles/Decision/i85/HoC3.pdf.  The High Court decision is at https://www.bailii.org/ew/cases/EWHC/Admin/2008/1084.htm. For BBC coverage of the story, see https://news.bbc.co.uk/1/hi/uk_politics/7831565.stm and

https://news.bbc.co.uk/1/hi/uk_politics/7842402.stm