Tag: public interest

TRIBUNAL ORDERS DISCLOSURE OF 1986 ‘WESTLAND HELICOPTER’ CABINET MINUTES

Posted on | by Robin Hopkins

A number of Tribunal decisions have dealt with requests for minutes of cabinet meetings. Section 35 is inevitably relied upon, and arguments about both collective responsibility and confidentiality ensue.

 

The most famous concerned the decision to go to war in Iraq, which case saw disclosure being ordered by the Tribunal, but vetoed by Jack Straw.

 

More recently (Cabinet Office v ICO (EA/2010/ 0031)), the Tribunal has ordered disclosure of the cabinet’s meeting on 9th January 1986, in which Michael Heseltine resigned over the Westland Helicopter decision.

 

The Tribunal agreed that cabinet minutes are of the highest sensitivity, and should only be disclosed in rare cases “where it involves no apparent threat to the cohesive working of Cabinet government, whether now or in the future”. Relevant factors include: the passage of time, the departure of the relevant ministers from active politics, publication of memoirs and ministerial statements describing the meeting, the issue lacking ongoing significance, the ‘objectivity value’ where publicised accounts conflict, and whether the issue is of “particular political or historical significance”.

 

The last-mentioned factor was one Jack Straw expressly disagreed with when issuing the certificate of veto mentioned above: in other words, his position was that the more momentous a decision, the greater the need for confidentiality.

 

Many of these factors were, however, at work in the present case: for example, Margaret Thatcher and Michael Heseltine both made (acrimonious) public statements about the meeting at the time, and the meeting has since surfaced in plenty of memoirs. The outcome was that, whilst section 35 was engaged, the public interest favoured disclosure.

 

No sign of the incumbent Lord Chancellor, Ken Clarke – who, incidentally, was in the cabinet and present for the 1986 Westland Helicopter meeting – reaching for the veto just yet.

 

The Tribunal concluded its judgment with stringent criticism of the Cabinet Office’s delay in dealing with this request. The Cabinet Office is one of the 33 authorities on the ICO’s first monitoring list – on which, see my post below.

PRIVACY IN THE DOCK

Posted on | by Anya Proops KC

It is a fundamental rule of our justice system that it should be administered in public (Attorney General v Leveller Magazine Ltd [1979] AC 440). In the criminal justice system this rule generally operates so as to require individuals who are charged with an offence to give their home address in open court. But what is the position if the accused claim that confirming their address in open court will expose them and their family to attack? Are they entitled to demand that their address be given in camera? This is an issue which was recently posed in the case of R(Harper) & Anor v Aldershot Magistrates Court & Anor [2010] EWHC 1319 Admin. In this case, two senior police officers who had been charged with the offence of misconduct in public office sought to judicially review a ruling of the Magistrates Court that they must each confirm their address in open court. The officers, who had been suspended from duty, claimed that the ruling was unlawful because there was a real and genuine fear of reprisal and the safety of the officers and their family was at risk. The Court rejected the claim on the basis that any fears which the officers may have had were unreasonable, particularly because publication of their address would not in fact enhance any risk that they faced (notably, the addresses could simply have been accessed through the electoral roll). In reaching the conclusion that the ruling was lawful, the Court took into account not least Lord Diplock’s judgment in Belfast Telegraph Newspaper Limited’s Application [1997] NI QBD 309. In that case, Lord Diplock held that information may be withheld in criminal proceedings on the basis that this was necessary to serve the public interest in the administration of justice but that it could not be withheld simply in the interest of protecting ‘the private welfare of those caught up in that administration’ (at page 314F). The Court in Harper noted that there might be circumstances in which the individual’s well-being may overlap with the administration of justice such that the information can be withheld in the public interest. However, these were not the facts of the instant case. Notably, there is no analysis in the judgment of the application of Article 8 ECHR. Nor further is there any explicit consideration of the rights of the families of the accused. Query what role these considerations would have played if the facts of Harper had been less clear-cut.

PLANNING DECISIONS & HISTORIC BUILDINGS: PUBLIC SCRUTINY TRUMPS COMMERCIAL CONFIDENTIALITY

Posted on | by Robin Hopkins

Local planning authorities will wish to take careful note of the recent Tribunal decision in Bristol City Council v ICO and Portland and Brunswick Squares Association (EA/2010/0012), which will please residents’ associations, conservation groups and others wishing to scrutinise planning decisions about historic buildings.

 

PPG 15 (a Planning Policy Guidance document) requires that, where a building is listed or makes a positive contribution to a conservation area, it should only be demolished if there is “clear and convincing evidence that all reasonable efforts have been made to sustain existing uses or find viable new uses and these efforts have failed”. Bristol CC granted permission to demolish a listed building in its ownership, relying for PPG 15 purposes on the developer’s viability reports which apparently showed alternative uses of the building to be commercially unviable. It subsequently refused to disclose those reports, relying on the exemption at regulation 12(5)(e) of the EIR 2004, which applies to the extent that disclosure “would adversely affect … the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest”.

 

The requesters argued that a reasonable person would not regard these reports as confidential because the planning process is one that assumes and requires public involvement. The Tribunal disagreed, and found that regulation 12(5)(e) was engaged.

 

It went on to find, however, that the public interest favoured disclosure, given the decisiveness of these reports in a matter which had aroused substantial local controversy. The Tribunal considered it proper to take into account the “general mismatch between the resources of developers and residents’ groups” and noted that “so far as PPG 15 viability reports are concerned, it seems to us that developers will not be able to refuse to supply them if they want to obtain the relevant consent but that, given their hypothetical nature, it may be possible for them to construct such reports in a way that does not reveal sensitive commercial information specific to themselves”.

 

The Tribunal stressed that it was not setting down a general precedent concerning planning decisions, and that absent PPG 15 (or, presumably, its successor guidance PPS 5) or council ownership of the building in question, its decision might have been different. Where those two factors are present however, public accountability trumps commercial confidentiality.

SAFETY RISK JUSTIFIES WITHHOLDING OF ANIMAL EXPERIMENT INFORMATION

Posted on | by Robin Hopkins

The ‘health and safety’ exemption under s. 38 FOIA has received relatively little attention at Tribunal level. It was recently relied upon successfully in People for the Ethical Treatment of Animals Europe (PETA) v IC & Oxford University (EA/2009/0076).

Experiments performed on a macaque by an Oxford University Professor had been featured in a BBC documentary in November 2006. The appellant pressure group sought extracts from the relevant project licence concerning, for example, the work plan and purposes behind those experiments. The Tribunal applied the well-established ‘prejudice’ principles from Hogan and Oxford City Council v IC (EA2005/0026 and EA2005/0030), ‘endanger’ (the term used in s. 38) being synonymous with ‘prejudice’. It found that s. 38 was engaged, given the indiscriminate nature of the violence tending to accompany the publication of information about animal experiments at Oxford.

In terms of the public interest test, notable points from the decision include:

a) PETA argued that the information would assist its decisions on applications for judicial review, but, based on Secretary of State for the Home Department v BUAV [2008] EWCA Civ 417, the Tribunal observed that there was limited scope for judicial second-guessing of scientists’ opinions.

b) The Tribunal accepted that limited external scrutiny was available, but was persuaded of the robustness of the internal scrutiny and oversight mechanisms applied here.

c) Oxford put forward a collateral public interest argument, namely that safety risks would deter future research, thereby impeding the advancement of scientific knowledge and human health. PETA argued that this was too remote from the health and safety risks for which s. 38 catered, but the Tribunal rejected this ‘remoteness’ objection (though it found this public interest factor to be inapplicable on these facts).

Given the frequency with which such points arise in appeals by pressure groups, these observations from the PETA case may come to have wider application.

OFCOM & THE AGGREGATION OF PUBLIC INTEREST CONSIDERATIONS: UPDATE

Posted on | by Anya Proops KC

On 17 November 2009, the Supreme Court will hear the Information Commissioner’s appeal against the Court of Appeal’s judgment in Office of Communications v Information Commissioner [2009] EWCA Civ 90 (Ofcom). In Ofcom, the Court of Appeal held that, when multiple exceptions were engaged in respect of particular information, the public interest test provided for under regulation 12(1)(b) of the Environmental Information Regulations 2004 would operate so as to entitle the public authority to aggregate all the different public interest factors relating to all applicable exceptions in a single, compendious public interest balancing exercise. This judgment was controversial, not least because it represented a departure from the well-established approach of tailoring public interest considerations to the individual exception in issue. Notably, in a recent Information Tribunal decision, the Tribunal highlighted some of the practical difficulties posed by the adoption of the aggregate approach to the public interest test (South Gloucestershire v Information Commissioner (EA/2009/0032), §§48-52). 11KBW’s Clive Lewis and Akhlaq Choudhury will be appearing on behalf of the Commissioner in the Supreme Court.

The Law Officers’ Convention and the Ministerial Code – High Court Judgment

Posted on | by Robin Hopkins

The recent judgment in HM Treasury v Information Commissioner and Evan Owen [2009] EWHC 1811 (Admin) saw the High Court quash a decision by the Information Tribunal requiring HM Treasury to disclose whether or not it held advice from the Law Officers on the compatibility of the Financial Services and Markets Bill with the Human Rights Act.

By a long-standing constitutional Convention – recognised in the Ministerial Code – the fact that the Law Officers have been consulted is not disclosed outside government without the consent of the Attorney General. This is specifically accommodated in the qualified exemption under section 35(1)(c) FOIA. The Tribunal, however, had upheld the Commissioner’s decision that the public interest favoured disclosure in this case.

Blake J held that, in so doing, the Tribunal failed to afford due weight to three factors. First, the fact that section 35(1)(c) aimed not to supplant the Convention, but to preserve it subject to a public interest test. Secondly, the views of experienced civil servants on the consequences of departing from the Convention. Thirdly, those factors counting against disclosure that were based on generalised rather than specific harm. The Tribunal had also failed to evaluate for itself the strength of the public interest in disclosure in light of the extensive legal advice that had already been publicised on this issue.

Given that similar factors have been discussed in a number of other High Court judgments referred to by Blake J, this judgment makes a notable contribution to the jurisprudence on the public interest balancing test.