Hot off the press: the Upper Tribunal has given its judgment in Fish Legal.

Applying the principles from the CJEU’s judgment of December 2013, it has held that the respondent water companies are public authorities for the purposes of the Environmental Information Regulations 2004, by virtue of their “special powers”.

The issues and facts are complex, and the judgment is lengthy. It also makes reference to Lewis Carroll, who now somehow appears in two consecutive Panopticon posts.

The judgment is contained in these two documents: FISH LEGAL UT DECISON PART 1 and FISH LEGAL UT DECISON PART 2.

Analysis  of the judgment will follow on Panopticon shortly (thus the barrister dreamed, while the bellowing seemed to grow every moment more clear).

Robin Hopkins

UCAS and the extent of FOIA: Tribunal favours wide approach

Transparency advocates often express frustration at the number of bodies which are not within the scope of FOIA, because they are not listed or designated as ‘public authorities’ for FOIA purposes. The Coalition government responded by announcing, in January 2011, that FOIA would be extended to a number of additional bodies. This was done with effect from 1 November 2011, through the Freedom of Information (Designation as Public Authorities) Order 2011. This brought the Association of Chief Police Officers of England, Wales and Northern Ireland (ACPO); the Financial Ombudsman Service and the Universities and Colleges Admissions Service (UCAS) within the scope of FOIA.

As regards UCAS, the difficulty is that this was not done in a straightforward blanket way. In recognition of the diversity of UCAS’ functions, its amenability to FOIA was limited to information relating to the “provision and maintenance of a central applications and admissions service”. This frames UCAS’ duties in a positive way.

This is similar – but not the same as – the approach taken to the BBC, which is subject to FOIA “in respect of information held for purposes other than those of journalism, art or literature”. This frames the BBC’s duties in a negative way.

The Supreme Court in BBC v Sugar (No2) told us how to approach the extent of the BBC’s FOIA duties. How should Sugar be applied to the differently-worded UCAS provision?

This was the issue before the Tribunal in University and College Admission Service v IC and Lord Lucas (EA/2013/0124), the requester (the author of the Good Schools Guide) made a number of requests to UCAS about university admissions. Some were refused on section 12 (cost of compliance) grounds; the ICO agreed with UCAS that the remaining information was exempt under section 43(2) (prejudice to commercial interests). UCAS and the ICO disagreed, however, about the extent to which UCAS was subject to FOIA.

UCAS argued that Sugar required the Tribunal to consider whether the information was held, to any significant degree, for a purpose other than the designation (in particular, UCAS’s commercial functions), and if so, it fell outside the scope of FOIA.

The ICO argued that because the BBC and UCAS were in reverse positions (the BBC being subject to a specific exclusion, and UCAS subject to a specific inclusion), the question should be whether the information was held to any significant degree for the designated purpose, and if so, it fell within the scope of FOIA. Both parties argued that the other was turning Sugar on its head.

The Tribunal adopted the ICO’s analysis of Sugar. The primary purpose of the 2011 Order was to bring UCAS within the scope of FOIA and subject it to the principles of greater openness and transparency that such a designation was designed to bring: at [68]. The focus of the phrase “the provision and maintenance of a central applications and admissions service”, taken with section 7(5) FOIA, is on what is actually caught by FOIA and the purpose of that wording is specifically to include information: at [66].

In favouring this wider approach to the application of FOIA to UCAS, the Tribunal said this:

“71. Most persuasive is the IC’s point that, in construing the scope of the 2011 Designation Order, it is important to recall that Parliament would have been well aware of the existing exemptions provided in FOIA. There is no need to read the 2011 Designation Order narrowly to ensure there is no overlap with a commercial function of UCAS because section 43 FOIA itself provides protection to UCAS in relation to information which prejudices its commercial interests.

72. The approach of UCAS in this case would have the result that only admissions data relating to the currently live admissions round would fall within the scope of FOIA. This surprisingly narrow result is unlikely to have been the one intended by Parliament when designating UCAS as a public authority for FOIA, not least because the ‘”provision and maintenance of a central applications and admissions service” does not suggest such an outcome.”

11KBW’s Chris Knight appeared for the ICO.

Robin Hopkins @hopkinsrobin

Meaning of ‘public authority’ under the EIRs: ECJ to consider

The leading authority on the meaning of “public authority” under regulation 2 of the EIR is Smartsource v IC and a Group of 19 additional water companies [2010] UKUT 415 (AAC). In that case, the Upper Tribunal found that the water companies were not public authorities for EIR purposes. Smartsource has been applied in, for example, Bruton v IC and Duchy of Cornwall and Montford v IC and BBC.

The issue has returned to the Upper Tribunal in Fish Legal v IC [2012] UKUT 177 (AAC), again in the context of water companies. As the Upper Tribunal has noted, however, the principles are relevant to other privatised, regulated industries that deliver a once publicly-owned service: electricity, gas, rail and telecoms. As the EIR implement European legislation, the meaning of “public authority” has been referred to the ECJ, which has recently published the questions it will be considering.

These involve the meaning of ‘performing public administrative functions under national law’ (is the applicable law and analysis purely a national one? If not, what EU law criteria should be used?), what does ‘control’ mean (in the context of one person/body controlling another) and does an ‘emanation of the state’ necessarily come within the definition? Another crucial issue is the so-called ‘hybrid authority’ question: if a body falls partly within the definition, do EIR rights apply only to those parts (functions, activities etc) that do, or to the whole of the person/body?

Those are, of course, paraphrases. The actual questions can be found here. The ECJ’s answers will be enormously important to information access rights in the UK.

11KBW’s Rachel Kamm represented the Information Commissioner before the Upper Tribunal.

Robin Hopkins

The BBC in the Tribunal: not a public authority under the EIR; strong arguments for disclosure of licence fee legal advice

In Montford v IC and BBC (EA/2009/0114), the appellant had asked the BBC various questions about its expenditure in relation to Cambridge Media and Environment Program, which researched and planned a programme of seminars that had been running since 2005 at which BBC editorial staff discussed issues such as environmental change and world development, with the objective of improving BBC journalism in those areas.

The BBC is a public authority within Schedule 1 of FOIA only within the following parameters: “The British Broadcasting Corporation, in respect of information held the purposes other than those of journalism, art or literature”. The Supreme Court addressed this “derogation” from FOIA in Sugar v BBC [2012] UKSC 4: see our post here. Montford concerned not only the application of Sugar to this request, but also an argument that, given the subject matter of the request and the BBC’s activities, the BBC was a public authority within the meaning of regulation 2 of the EIR.

The Tribunal considered the leading cases on the latter point (Smartsource, Port of London, Network Rail, Bruton) and – applying the multifactorial approach from Smartsource – concluded that the BBC was not a public authority under the EIR. Further, the requested information was not environmental: that requires more than a remote link to the environment, and in the present case there was no link. It was therefore FOIA which applied, and Sugar meant that the requested information fell within the derogation. The BBC therefore did not have to provide it.

The BBC also featured – though not as a party – in another Tribunal decision of late. Crawford v IC and DCMS (EA/2012/0018) concerned the conclusion of the ‘BBC settlement’, ie the funding arrangements (freezing of the licence fee, BBC taking over World Service funding and so on) agreed with extraordinary speed between Jeremy Hunt and BBC Trust chair Michael Lyons in October 2010. The requester – a BBC journalist – sought information about that agreement. By the time of the hearing, the only disputed information was legal advice, which fell within section 42(1) of FOIA. The argument focuses on the public interest.

As readers will be aware, information falling within section 42(1) has very rarely been ordered for disclosure by the Tribunal. One gets the sense from the Tribunal’s decision in Crawford that the appellant here came closer than most to getting the information he sought.  The Tribunal noted the unprecedented speed with which negotiations about matters of great public interest were concluded in 2010. In the circumstances, there were “weighty factors in favour of disclosure of any information which can shed light on how this speedy settlement which affects so many people was reached. In other words there is a significant public interest in transparency and accountability in this case”. The stumbling block, however, was that the disputed legal advice shed only limited light on those concerns. Disclosure was thus not ordered. The Tribunal concluded on a note of sympathy with the requester:

“We would observe that we can understand why Mr Crawford has pursued this matter to a hearing despite disclosure of most of the information originally requested. It seems to us, that despite the exceptional nature of the CSR, the haste of the negotiations and lack of record of what took place means that Mr Crawford has quite understandably had to challenge the DCMS into providing whatever contemporaneous record there might be to help him in his journalist pursuit to provide the public with the facts of this unprecedented Licence Fee Settlement with its far reaching effects.”

Robin Hopkins