The Tribunal’s recent decision in Marriott v IC and Metropolitan Police (EA/2010/0183) saw the Tribunal consider registers and ledgers of policing information from the late Victorian period – some of which, the requester contended, related to the “Jack the Ripper” investigations. The Tribunal was unanimous that section 30(2)(a) FOIA (information obtained or recorded for the purposes of functions relating to investigations or criminal proceedings etc) was engaged. It decided by a majority that the public interest favoured the maintenance of that exemption. I say no more about the case, given my involvement. David Higgerson’s blog, however, comments on the application of FOIA to very old information here.
Tag: public interest
TRIBUNAL ORDERS DISCLOSURE OF POLICING CAMERA LOCATIONS
Those interested in information law in the context of policing will wish to note the very recent Tribunal decision in Mathieson v IC and Devon and Cornwall Constabulary (EA/2010/0174).
Automated Number Plate Recognition (ANPR) cameras are strategic policing tools used by a number of forces. Mr Mathieson asked Devon and Cornwall Constabulary to provide him with the locations of its ANPR cameras. It refused, relying on the prejudice-based qualified exemptions at s. 31(1)(a) (prevention or detection of crime) and s. 31(1)(b) (apprehension or prosecution of offenders). The Commissioner considered that the public interest arguments – though finely balanced – favoured the maintenance of these exemptions.
The Tribunal agreed that these exemptions were engaged, but disagreed on the public interest, and ordered disclosure. It considered that the Commissioner had overlooked a number of relevant factors.
First, this is a privacy issue: ANPR cameras capture vast amounts of personal data; there is therefore substantial public interest in scrutiny of their use (further illustrated by parliamentary questions on the subject). Secondly, location data alone would not undermine policing – information on factors such as policing tactics, data and analytical capabilities were equally necessary.
Furthermore, the Constabulary had put forward weak arguments: the Tribunal was unimpressed by its attempt to rely on reports by other police forces on their use of ANPR cameras, and by its focus on issues such as the potential for vandalism – which is not sufficiently connected to the interests protected by ss. 31(1)(a) and (b).
S. 35 FOIA AND THE DEVELOPMENT OF LEGISLATION – LATEST TRIBUNAL DECISION
The Tribunal’s recent decision in Makin v IC (EA/2010/0080 & 81) looks at the application of s. 35 FOIA, the qualified exemption for the formulation and development of government policy, in circumstances where the policy in question was effected through parliamentary legislation. In particular, the requested information concerned the proposal in what was then the Legal Services Bill to continue the exemption of government lawyers from professional regulation, including the requirement to pay for a practising certificate.
The Tribunal considered the application of subsections 1(a), (2) and (4) of s. 35.
It had no hesitation in confirming that s. 35(1)(a) was engaged, relying on the well-established breadth of terms such as “relates to”. For the purposes of s. 35(2), the Tribunal found that no “statistical information” (a working definition of which was taken from the Ministry of Justice guidance of May 2008) was involved.
As regards s. 35(4) – the subsection concerning factual information used to inform decision-making – the Tribunal found that this subsection “should apply where it was relatively obvious that what was being provided was factual information for the purpose of informing the decision–taker on the background”. In adopting this approach, it applied the guidance from the leading case of DWP v Information Commission (EA/2006/0040), where the Tribunal held that, on the spectrum between pure advice and pure fact, “where the information is firstly, so inextricably connected to the deliberative material that it is difficult to distinguish and secondly, where the vast weight of material is non-factual information, we consider Parliament did not intend the sub-section to apply”.
An important point from this case is the Tribunal’s finding that whenever s. 35 is under consideration, public authorities and the IC must consider whether s. 35(4) applies and if so what affect it has on the public interest balancing test. This had not been done in this case.
As to the public interest, a crucial issue was (as is usual with s. 35 cases), when the policy formulation had come to an end. Answer in this case: the date of Royal Assent given to the bill embodying the policy, namely 30 March 2007. In this case, one of the internal reviews was only completed well after this date – but the Tribunal held that the latest relevant date for assessing the public interest was the date when the review ought to have been completed, in accordance with the Code of Practice. This was well before Royal Assent, meaning that the public interest factors applied as if the policy were still in the process of formulation.
In the event, apart from two pieces of information, the Tribunal found that the public interest favoured the maintenance of the exemption. In so doing, it “took the view that the efficacy of the Parliamentary legislative process took precedence in this context… Whilst s. 35 was not aimed directly at protecting the role of Parliament, insofar as Government policy in relation to legislation underpins this particular role of Parliament, they were intertwined”.
A final interesting point is that the Tribunal firmly endorsed the IC’s flexibility to decide that, although information should have been disclosed at the time, it nevertheless ought not to be disclosed due to fresh circumstances that have arisen since the decision of the public authority. In so doing, the Tribunal relied on obiter dicta from the High Court’s decision in Office of Government Commerce v Information Commissioner [2009] 3 W.L.R. 67 (at paragraph 98).
PAYMENTS TO SENIOR PUBLIC SECTOR EMPLOYEES: ROUNDUP OF RECENT PERSONAL DATA CASES
The FOIA update paper given at last week’s 11KBW Information Law Seminar provides a roundup of recent caselaw in a few of the most common areas of Tribunal litigation.
One is commercially sensitive or confidential information: in particular, Veolia and its aftermath.
Another is information on planning applications and property developments: in particular, those cases subsequent to South Gloucestershire, namely Bristol City, Bath & North East Somerset and Elmbridge.
A third area is personal data: here the recent cases of Dun, Bryce, Ferguson and Ince have all – like the cases mentioned above – been covered in Panopticon posts. Two others to take note of, however, both in the context of public sector pay (other than salaries).
One concerns bonus payments to public sector employees. Davis v IC and Olympic Delivery Authority (EA/2010/0024) saw the Tribunal distinguish between bonus information and performance assessment information. It ordered disclosure of certain information relating to the bonuses of senior employees of the ODA: the maximum performance-related bonuses to which the chief executive and communications director were contractually entitled, and the percentage of the maximum available bonus actually paid to certain other members of senior management. The Tribunal decided, however, that details of the performance targets which individuals failed to hit to 100% satisfaction should not be disclosed.
The other recent case on the personal data exemption is Pycroft v IC and Stroud District Council (EA/2010/0165). The context was an auditor’s report which observed that the local authority’s former Strategic Director of Housing “did not ensure that staff had taken ownership of managing the budgets”. The applicant requested the details of this Director’s early retirement package. The Commissioner found that disclosure of this information would not be fair, and the Tribunal agreed. It should be noted by those dealing with requests for information about payments to allegedly poorly-performing public sector employees.
ELECTORAL COMMISSION’S INVESTIGATION INTO UNLAWFUL POLITICAL DONATIONS: PERSONAL AND NON-PERSONAL DATA
Wendy Alexander MSP became leader of the Labour Party group in the Scottish Parliament in September 2007. In the course of her leadership election campaign, someone in her team recorded a donation of £950 as coming from a domestically-based company, whereas it in fact came (unlawfully) from an overseas-based individual. The Electoral Commission investigated two potential criminal offences that arose under the Political Parties, Elections and Referendums Act 2000. In February 2008, it issued what the Information Tribunal described as a “meagre statement”. It said that there was insufficient evidence of an offence under section 61 (knowingly facilitating, concealing or disguising an impermissible donation), but it acknowledged – implicitly – that an offence under section 56(3) (failure to return an impermissible donation within 30 days). Nonetheless, the case was not referred to the Procurator Fiscal. Many were dissatisfied with the investigation.
The requester in this case sought further information. Answers to a number of his questions were withheld. The Tribunal in Ferguson v IC and The Electoral Commission (EA/2010/0085) has today handed down a decision which is notable both for its commentary on the interaction between personal data and the inherent publicity of political life, and for a number of distinctions it draws between types of information which, at first glance, may appear to be personal.
Broadly, there were two types of question in dispute. One type sought the names of those who provided the Electoral Commission with answers to certain questions. Applying Durant, the Tribunal held that this was not personal data. Even if it were personal data, a Schedule 2 condition would be met, and the processing would be lawful and fair because there was no indication that interviewees had an expectation of confidentiality. The Tribunal emphasised that fairness does involve a balance of competing interests. Section 30(1) was engaged, but the public interest favoured disclosure. Here the Tribunal rejected the submission that disclosure would undermine voluntary co-operation with the Electoral Commission’s investigations: “politicians and their supporters have strong incentives to co-operate with the Commission”.
The second type was about who had misrecorded the donation and why. This was held to be sensitive personal data. The Tribunal cautioned against generalising about FOIA being purpose-blind: an applicant’s identity and motives may sometimes shed light on the public interests involved, and on whether conditions from Schedules 2 and 3 are met. In this case, however, a Schedule 3 condition was not met: the Tribunal was not persuaded that, at the relevant time, the answers the appellant sought were necessary for him to obtain legal advice on a possible application for judicial review of the Electoral Commission.
The Tribunal remarked that the appellant would have had a “strongly arguable case” under condition 6(1) of Schedule 2, and made a number of observations on fairness. It commented that “politics is an inherently public activity. The extent and manner of compliance with the rules should be expected to be subject to public scrutiny”. The Tribunal did, however, distinguish between the section 56 offence (implicit finding of guilt) and the section 61 offence (explicit finding of insufficient evidence). Disclosure concerning the former would not be unfair: Ms Alexander “would be well able to say in mitigation anything that she wished by making public statements, as any serious politician would”. Disclosure concerning the latter would be unfair: it “would risk placing the data subjects under a cloud of suspicion, in circumstances where there might be no definitive termination of speculation and where, as a result, undue distress would be likely to ensue”.
COUNCIL ENTITLED TO WITHHOLD PROPERTY DEVELOPER’S FINANCIAL MODEL: BRISTOL CITY DISTINGUISHED
Bath & North East Somerset Council v IC (EA/2010/0045) is the latest application of the ‘commercial confidentiality’ exemption under regulation 12(5)(e) EIR to a request for information on agreements between a local authority and a property developer.
The council and the developer entered into discussions about building homes on 70 acres of brownfield land within a UNESCO World Heritage Site. Only a small proportion of this land was owned by the council, the rest being owned by the developer, who would also bear 100% of the risk of the project. The proposed £500m project would deliver 50% of the council’s new homes target for the next 10 years – the council was therefore acting as both beneficiary and planning authority.
With a potential section 106 agreement in mind, the council and developer reached a co-operation agreement, whereby the developer taking an ‘open book’ approach, i.e. making its financial models and reports available to the council. This was the information at issue before the Tribunal.
The Tribunal found that the public interest favoured maintaining the exemption. In so doing, it distinguished this case from Bristol City Council v ICO and Portland and Brunswick Squares Association (EA/2010/0012) – on which, see my post here and article in the Local Government Lawyer here – where disclosure of the information was ordered. Bristol City concerned a viability assessment designed to show that a hypothetical scheme was not viable; that assessment used generic, industry-level pricing. In contrast, this case concerned detailed and developer-specific financial information about an actual proposal. The commercial sensitivities differed materially.
Disclosure of such information, held the Tribunal, would lead to the developer refusing to provide any further ‘open book’ information, which would stymie this particular development and dissuade developers from future ‘open book’ co-operation. The Tribunal was also impressed by the availability of alternative scrutiny mechanisms in this case. It was less impressed with the council’s argument that disclosure of the disputed information would damage its reputation with developers.
The Tribunal did order the disclosure of consultants’ reports and emails, with commercially sensitive information redacted. The developer’s financial model however, could not be redacted, and could be withheld. On this last point, a notable practical issue emerged: both the council and the Commissioner had interpreted the request as being for a static version of the developer’s financial model. A ‘live’ model – i.e. a spreadsheet containing visible formulae – is another matter. The Tribunal warned that in future cases, clarification should be sought from the requester.