Tag: public interest

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

Posted on | by Robin Hopkins

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

Commercial prejudice: the importance of precise and limited redactions

Posted on | by Robin Hopkins

In the recent decision in UK Coal Mining v IC, Nottinghamshire County Council & Veolia [2012] UKUT 212 AAC, the Upper Tribunal has dismissed an appeal concerned with section 43(2) of FOIA (commercial prejudice): the First-Tier Tribunal (decision EA/2010/0142, on which see our post here) had been entitled to find that only very limited redactions could be made to provisions from a PFI contract for a waste incinerator. Upper Tribunal Judge Wikeley’s decision, while largely fact-specific, illustrates two significant points.

First, appeals against FTT decisions are liable to fail where they are simply attempts to re-run questions of fact and judgment.

Secondly, those seeking to rely on section 43(2) FOIA should be as precise as possible. Sometimes, for example, a clause in a contract might appear commercially sensitive at first glance, but upon closer scrutiny all that really warrants withholding might be the numbers.

The background to the decision is briefly as follows. UK Coal entered into a complex PFI agreement with the Council for an option to lease a former colliery site the site, with Veolia then sub-leasing the site from the Council to operate an incinerator. Upon a request for the contracts, the Commissioner found that regulation 12(5)(e) of the EIR (confidentiality of commercial or industrial information) was engaged, but that the public interest favoured disclosure. Upon what was effectively UK Coal’s appeal, the FTT found that the matter should have dealt with under FOIA rather than the EIR. Section 43(2) was engaged, but the public interest favoured disclosure of at some of the disputed information. Eventually, the Tribunal largely endorsed the Commissioner’s (very limited) redactions, rejecting the much more extensive redactions proposed by UK Coal. UK Coal’s appeal to the Upper Tribunal failed.

As regards challenges to the FTT’s decision, Upper Tribunal Judge Wikeley said that it was important that the FTT’s statement of reasons is read as a whole, rather than highlighting particular phrases and taking them out of their wider context. The FTT had allowed for the redaction of what it called “core financial information”, but this was simply a convenient shorthand not amenable to close textual analysis or to legal challenge per se.

Notably, he said that this of the FTT’s assessment:

“This was a quintessential issue of fact and degree for the tribunal at first instance to determine… The bottom line is that UK Coal is essentially seeking to re-argue questions of fact and judgement which have been litigated and adjudicated upon on their merits by the FTT.“

Judge Wikeley also warned that the caution against relying too heavily on other FTT decisions (see the Upper Tribunal’s decision in LB Camden v IC and Voyias GIA/2986/2011) applies with even greater force to attempts to rely on other decision notices by the ICO (as UK Coal sought to do here).

Turning to the section 43(2) redactions urged by UK Coal, the Upper Tribunal considered these to be “far too wide-ranging” and its arguments unsustainable. Some of the terms it sought to withhold were commonplace to commercial agreements. The FTT had approached its redaction analysis with care and precision, and correctly struck a balance between protecting UK Coal’s proper commercial interests under section 43 while ensuring that other information is disclosed. In some cases, the FTT allowed only for the redaction of figures rather than terms as a whole. This nonetheless ensured that a member of the public would have “no idea as to either the commercial methodology or the key financial and other numerical variables used”.

The Upper Tribunal’s decision cites specific examples of the scope of redactions to commercial terms which the FTT applied and which the Upper Tribunal found to be entirely understandable. The examples merit close attention by those seeking to withhold information in similar cases.

Robin Hopkins

Police Surveillance – New tribunal decision

Posted on | by Anya Proops KC

Earlier this month Robin Hopkins blogged on a recent admin court judgment applying Article 8 to the police’s act of retaining data on a protestor (see his post on the Catt case here). This week the Information Tribunal handed down a judgment concerning another aspect of police surveillance, namely the automatic number-plate recognition (ANPR) system, which is now in widespread use across Great Britain. In Mathieson v IC & Devon & Cornwall Constabulary (EA/2010/0174), Mr Mathieson, a Guardian journalist, requested disclosure from the Constabulary of the location of all the ANPR cameras within the area of the Devon & Cornwall Constabulary. The Constabulary refused disclosure on an application of ss. 24 (national security) and 31 (prevention of crime) FOIA. The Commissioner upheld the Constabulary’s refusal notice on the basis that the location information was exempt from disclosure under s. 31. Mr Mathieson appealed against the Commissioner’s decision.

At the hearing before the Tribunal, it was conceded on behalf of Mr Mathieson that, on all the evidence, both ss. 24 and 31 were engaged in respect of the location information. The key issue which the Tribunal was called upon to determine was whether the public interest balance nonetheless weighed in favour of disclosure. In summary, the Tribunal held that the use of the ANPR system by the Constabulary inevitably gave rise to serious civil liberty concerns. This was not least because the system indiscriminately recorded the number-plate of every single vehicle passing before the individual cameras, irrespective of whether the vehicles may be being used as part of a criminal enterprise or as a result of individuals innocently and lawfully going about their day to day business. However, it nonetheless went on to find that the public interest balance weighed firmly in favour of maintaining the exemptions. This was because, on all the available evidence, it was clear that revealing the location of the individual cameras within Devon and Cornwall would have enhanced the ability of criminals, including terrorists, effectively to bypass the ANPR system, thus helping them to evade detection and prosecution.

In the course of its decision, the Tribunal held that: ‘there is always likely to be a substantial public interest in maintaining the exemptions we are concerned with, in particular that provided by section 24 which relates to national security’ (§8). It also held that, whilst disclosure of the location information may only have tipped the balance slightly in favour of the criminals, not least because they may in any event have been able to identify the cameras through their own efforts, that was sufficient to result in a situation where the location information must be treated as exempt (§10).

Notably, a separate question was raised during the course of the appeal as to whether the information captured by the ANPR system amounted to ‘personal data’ in the hands of the Constabulary. Mr Mathieson and the Commissioner submitted that it did. The Constabulary disputed this conclusion. Ultimately, the Tribunal took the view that it did not need to resolve this dispute for the purposes of determining the appeal.

I am limited in what I can say about this case, having appeared on behalf of the Commissioner. However, it is clear from the judgment that there is an abiding issue as to the legality of the ANPR system and, in particular, whether it unjustifiably interferes with the right to privacy under Article 8 and/or with the data subject’s rights under the DPA. Whilst this is a nettle which the Tribunal itself considered it did not need to grasp in the circumstances of the Mathieson appeal, there can be little doubt but that it is a nettle which will be subject to judicial examination in the future.

Anya Proops

Right to withdraw children from sex education classes

Posted on | by Robin Hopkins

Under s. 405 of the Education Act 1996, any parent has the right to withdraw a child from sex education at a maintained school up to the age of 19, except to the extent that the subject is covered in a science lesson that forms part of the national curriculum. On 5 November 2009, the Labour government announced that a proposed new bill, the Children Schools and Families Bill would include a provision that would remove a parent’s right of withdrawal once a child had reached the age of 15 years. The next day, the Family Education Trust made a FOIA request for all correspondence, notes and reports on this issue. This was refused. The proposed legislative change was abandoned when the Coalition government came to power in May 2010. The requester made the same request again, seeking only information created prior to May 2010, i.e. under the last government. The Department for Education again refused, continuing to rely on s. 35(1)(a) of FOIA (formulation or development of government policy). The requester’s appeal to the Tribunal concerned the public interest balancing test only. The appeal in Family Education Trust v IC and Department for Education (EA/2011/0244) was dismissed.

Three points are of interest as regards the public interest in maintaining the exemption for the formulation and development of government policy.

First, the appellant argued that there had been a lack of transparency about this decision. The Tribunal thought this a valid type of argument in general: it could “envisage cases in which public dissatisfaction with the rigour or comprehensiveness of a public consultation may add weight to the public interest in having information disclosed”. This did not, however, have purchase on the facts of this case.

Secondly, what of the fact that the relevant provision had been abandoned during the “wash up” of outstanding legislative business immediately before the May 2010 election? The appellant said this meant no ‘safe space’ was then needed, as policy development on this issue was no longer live (this was raised as a public interest argument, but it seems to me it could equally well be an argument against the engagement of s. 35(1)(a) in the first place). Again, on the facts this point did not have force, as the issue remained live after the election. The Tribunal did, however, add this note of caution:

“It does not follow, from our conclusion on this aspect of the case, that the period during which the “safe space” must be protected will be without limit. Some elements of the public debate on sex and relationship education may be perennially controversial but, in the event of a further information request being made at any time in the future, it will be necessary for the Department to consider the state of policy development at that time.”

Thirdly, the Department also argued that there was a public interest in protecting from disclosure contributions made by those consulted on policy matters in this area. The Tribunal gave this factor less weight, “in that those submitting views with the intention of influencing policy decisions by government should in most cases accept that the consultation process will be conducted in public view. We nevertheless accept that a degree of protection may be required in the context of a particularly contentious issue, such as the right of withdrawal and that, had we been inclined to order to disclosure generally, it might have been appropriate to make special provision for some elements of the consultation process.”

Robin Hopkins

Wheat and chaff: advice to ministers on answering parliamentary questions

Posted on | by Robin Hopkins

Some years ago, the government commissioned the Tasker Report into the conduct of senior managers in the prison service, which had given rise to extensive and adverse publicity. A number of parliamentary questions were asked about the report. As is the usual practice, civil servants prepared advice for use by the prisons minister, Maria Eagle, in responding to those questions.  Kikugawa v IC and MOJ (EA/2011/0267) involved a request for copies of those advice notes. The MOJ refused to disclose them, relying on s. 36(2)(b) FOIA (prejudice to the free and frank provision of advice or exchange of views), the prerequisite for which is the issuing of a ‘reasonable opinion’ by the ‘qualified person’ (here, the minister) as to the likelihood of those prejudices.

The Tribunal found the exemption to be engaged. Points to note as regards the ‘reasonableness’ of the opinion this, which points towards a margin of discretion:

“The opinion must be her opinion so she cannot simply sign a submission without reading it, though nobody suggests that she did so. Deciding to approve a submission by flipping a coin (an example given by the ICO) does not fail the test because the opinion adopted is unreasonable but because the minister formed no opinion at all. The same principle would apply, though perhaps less vividly, where the minister received a submission advocating this opinion which offered no reason, however slight, to form it. Nobody can truly form an opinion where he or she is deprived of any shred of information on the issues involved. Provided the opinion is formed by the minister, however, it may be debatable how far the Tribunal is entitled to inquire into the mental processes adopted. A degree of caution may be appropriate when approaching the supposed requirement for a “reasonable opinion reasonably formed”.

The requester said the opinion had been biased. The Tribunal disagreed:

“The test is reasonableness, not the apparent objectivity of the QP. If the QP has formed an untenable opinion because of a conflict of interest, then the opinion does not satisfy s.36(2), not because it is the opinion of a biased QP but because it is unreasonable. In fact, the complaint that it is the minister concerned with the PQs whose opinion is sought is unrealistic since it is she who is by far the best placed to form a judgement on the matter. Equally, it is hard to see how officials who had no involvement whatever with the PQs or the background facts could provide an informed submission.”

The requester alleged that the submissions to the minister had been “bogus”, false or “deliberately misleading”. Although the Tribunal noted colourfully that “it is inevitable that, in the stream of advice and comment passed to ministers in the process of answering hundreds of PQs there will be chaff as well as wheat”, it did not find the requester’s allegations to be well founded.

Finally, this was one of those (increasingly rare, it seems) cases where the Tribunal saw force in the ‘chilling effect’ argument:

“The Tribunal is frequently pressed by government departments with claims as to the “chilling effect” on frank communication of disclosure of internal discussions and reports. The Tribunal is not always impressed by them. Here, though, we are dealing with a vital and sensitive interface between minister and civil servant. This is an area of government where the need for confidentiality is clear because the points that need to be made to a minister may be based on evidence of varying strength and may involve strong criticism of the questioner or another member or third party. The official offering advice may be understandably reluctant to make them public, whilst properly concerned that they should be before the minister. It is for the minister to decide what should be used, what rejected, what is too tenuous to be relied upon.”

For all these reasons, the Tribunal firmly rejected the appeal.

Robin Hopkins

CHILLING EFFECT, SAFE SPACE AND THE NHS RISK REGISTERS

Posted on | by Robin Hopkins

In a recent post, Panopticon brought you, hot-off-the-press, the Tribunal’s decision in the much-publicised case of Department of Health v IC, Healey and Cecil (EA/2011/0286 & EA/2011/0287). Somewhat less hot-off-the-press are my observations. This is a very important decision, both for its engagement with the legislative process and for its analysis of the public interest with respect to section 35(1)(a) of FOIA (formulation or development of government policy) – particularly the “chilling effect” argument. At the outset, it is important to be clear about what was being requested and when.

Risk registers in general

The DOH prepared two “risk registers” documenting the risks associated with implementing the “far-reaching and highly controversial” NHS reforms under what was then the Health and Social Care Bill. The Tribunal heard that risk registers are used widely across government for project planning. They provide snapshots (rather than detailed discussions) combining the probability of and outcomes from any given risk associated with the proposed reform; risks are then classified in red, amber or green terms. According to Lord Gus O’Donnell, who gave evidence in support of the DOH’s case, risk registers are the most important tool used across government to formulate and develop policy for risk management in advising ministers. John Healey MP, one of the requesters in this case, said that he was a minister for ten years and was never shown such a register.

The requests and these particular registers

On 29 November 2010, Mr Healey requested a copy of the “Transition Risk Register” (TRR). This, the Tribunal found, was largely concerned with operational matters; it aimed to identify implementation risks. By this stage, the government had already published its White Paper on the reforms. Crucially, the Tribunal’s finding was that the broad policy decision had been taken by the time of the White Paper. The subsequent consultation was largely directed at how best to implement the White Paper. In response to that consultation, the government adhered to the vast majority of its plans, and set about implementing them early where possible.

On 28 February 2011, the second requester, Nicholas Cecil, asked for a copy of the Strategic Risk Register (“SRR”). This was concerned with potential policy decisions for ministers. By that time, the Bill had been laid before Parliament. Parliament’s reaction meant that, in a number of respects, ministers were called upon to rethink policy decisions surrounding the NHS reforms.

Both requests were refused. The IC ordered that they be disclosed. The Tribunal upheld the IC’s decision on the TRR, but allowed the DOH’s appeal on the SRR.

The approach to section 35(1)(a) of FOIA

Before the Tribunal, it was accepted that this exemption was engaged with respect to both registers. The Tribunal considered that the need for a safe space for policy-making was not linear. Its analysis is worth quoting in detail:

“We are prepared to accept that there is no straight line between formulation and development and delivery and implementation. We consider that during the progress of a government introducing a new policy that the need for a safe space will change during the course of a Bill. For example while policy is being formulated at a time of intensive consultation during the initial period when policy is formed and finalised the need for a safe space will be at its highest. Once the policy is announced this need will diminish but while the policy is being debated in Parliament it may be necessary for the government to further develop the policy, and even undertake further public consultation, before the Bill reflects the government’s final position on the new policy as it receives the Royal Assent. Therefore there may be a need to, in effect, dip in and out of the safe space during this passage of time so government can continue to consider its options. There may also come a time in the life of an Act of Parliament when the policy is reconsidered and a safe space is again needed. Such a need for policy review and development may arise from implementation issues which in themselves require Ministers to make decisions giving rise to policy formulation and development. We therefore understand why the UCL report describes the process as a “continuous circle” certainly until a Bill receives the Royal Assent. However the need for safe spaces during this process depends on the facts and circumstances in each case. Critically the strength of the public interest for maintaining the exemption depends on the public interest balance at the time the safe space is being required.

We would also observe that where a Bill is a Framework Bill we can understand that even after it receives the Royal Assent there will be a need for safe spaces for policy formulation as secondary legislation is developed. We note in this case that the Bill, although suggested by DOH to be a Framework Bill, is prescriptive of economic regulation, and cannot be described purely in framework terms.”

Public interest factors in favour of maintaining the exemption: safe space and chilling effect

One of the DOH’s witnesses contended that the registers allowed a safe space for officials to “think the unthinkable”, but the Tribunal found it difficult to see how the registers – particularly the TRR – could be described in that way: “the TRR identifies the sorts of risks one would expect to see in such a register from a competent Department”. Nonetheless, the Tribunal accepted the strong public interest in there being a safe space for policy formulation.

The main argument concerned the chilling effect, which Lord O’Donnell addressed in his evidence. The Tribunal considered that there was no actual evidence of the chilling effect following other instances of comparable disclosures (e.g. following OGC v IC (EA/2006/2068 & 80), or following a 2008 disclosure of a risk register concerning a third runway at Heathrow). Similarly, a 2010 report from UCL’s Constitution Unit concluded there to be little evidence for the chilling effect.

Overall, the Tribunal cautioned against treating qualified exemptions as absolute ones. It said:

“We would observe that the DOH’s position expressed in evidence is tantamount to saying that there should be an absolute exemption for risk registers at the stages the registers were requested in this case. Parliament has not so provided. S.35 (and s.36) are qualified exemptions subject to a public interest test, which means that there is no absolute guarantee that information will not be disclosed, however strong the public interest in maintaining the exemption.”

Factors in favour of disclosure

The DOH’s witnesses sought to play down the significance of the NHS reforms in comparison to other important reforms implemented by government. Mr Healey, however, argued that they were exceptional. The Tribunal agreed with him.

It also noted that the Conservatives’ manifesto for the 2010 election had promised an end to top-down NHS reorganisation, but that its NHS White Paper then appeared to propose exactly such a reorganisation. It was not preceded by a Green Paper. It was clear to the Tribunal that the White Paper was published in a hurry and to much public concern. Given the scale and controversial nature of the reforms, transparency of decision-making was very important.

The Tribunal found the public interest balance to be very difficult in this case. Judging the matters at the time of the DOH’s refusal notices, the Tribunal concluded that the balance favoured disclosure of the TRR but not the SRR – due to the differences in the nature of the registers and the timing of the requests (see above).

Section 40(2) of FOIA and civil servants’ names

Finally, the Tribunal also considered the DOH’s reliance on section 40(2) to redact the names of a number of civil servants on the grounds of their being insufficiently senior for disclosure to be fair. The Tribunal ordered the disclosure of the majority of these names. In so doing, it focused on the substance of what each individual did with respect to this particular information – rather than on their Civil Service grades.

Robin Hopkins