Tag: section 38 FOIA

FOIA disclosures: ‘motive blindness’ and risks to mental health

Posted on | by Robin Hopkins

Some FOIA ‘mantras’ frustrate requesters, such as judging matters as at the time of the request/refusal, regardless of subsequent events. Others tend to frustrate public authorities, such as ‘motive blindness’. A recent Tribunal discusses and illustrates both principles – in the context of the distress (including a danger to mental health) likely to arise from disclosure.

The background is that a certain pupil referral unit (PRU) in County Durham was the subject of complaints; 13 of its 60 staff had been suspended. An independent investigation team reported in November 2012. Later in that same month, the Council received a FOIA request for a copy of the investigators’ report. At that time, disciplinary proceedings were pending against each of the suspended members of staff. Those proceedings were to be conducted on a confidetial basis.

The Council refused the request, relying on section 31 (prejudice to conduct of function for purpose of ascertaining any improper conduct), section 40 (personal data) and 38 (health and safety). The ICO agreed, and so has the Tribunal, dismissing the requester’s appeal in Hepple v IC and Durham County Council (EA/2013/0168).

The Tribunal confirmed that, notwithstanding the appellant’s practical arguments to the contrary, it had to judge matters as they stood at the time of the Council’s refusal of the request (paras 4-7).

Section 31 was engaged: “We are satisfied, having read the Report in full, that disclosure in full would have given rise to a perception of unfairness and pre-judgement that would have prejudiced the disciplinary proceedings. Those deciding the complaint might have avoided being prejudiced but the perception of a disinterested third party would have been that the staff member’s right to a fair hearing had been undermined, particularly if publication had attracted media comment” (para 14). The public interest favoured maintaining the exemption.

Reliance on section 40(2) was upheld: the unwarranted interference to the data subjects prevailed over public interest arguments. The comparative balance may have shifted slightly since the date of the refusal, but that was not the relevant time for the purposes of the appeal.

Reliance on section 38 was also upheld. This exemption for health and safety (here, danger to mental health) seldom surfaces in FOIA caselaw. Here it was upheld, largely because the requester himself had sent certain text messages (for which he was later apologetic) to some of the individuals involved. The Tribunal “drew the clear impression that the texts had been transmitted with the purpose of menacing those whose addresses the Appellant had acquired” (para 37).

Those text messages were sent after the refusal of the request, but the Tribunal was satisfied that they evidenced a state of mind likely to have existed at the relevant time. As to ‘motive blindness’, the Tribunal said that “assessing an information request on this “motive blind” basis ought not to prevent us from considering the potential risk to safety posed by the requester him/herself”.

‘Motive blindness’ may be something of a mantra in FOIA cases, but – as with vexatious request cases – it is a principle which should be applied with appropriate nuance.

Robin Hopkins @hopkinsrobin

SECTION 38 FOIA: MEANING OF “ENDANGER”; IN-BUILT PUBLIC INTEREST

Posted on | by Robin Hopkins

The British Union for the Abolition of Vivisection’s requests for information from Newcastle University have reached the Tribunal system before: see my post from May this year on the Upper Tribunal decision concerning the meaning of “held”. The latest First-Tier Tribunal litigation between these parties, BUAV v IC and Newcastle University (EA/2010/0064), again considered information about project licences for experimentation on non-human primates. The Tribunal found that the University was required to disclose that information, except for a small amount which it was entitled to withhold on the basis of sections 38(1) (health and safety) and 43(2) (prejudice to commercial interests).

Section 38(1) crops up relatively infrequently at Tribunal level (for another notable example, see my post on the PETA case of 2010 – which, interestingly, also concerned a request to a university for information concerning animal experimentation). This BUAV decision is arguably now the leading case on this exemption.

There are four important points to note. First, what does “endanger” mean? BUAV submitted that it is the section 38 equivalent of “prejudice” as used in other exemptions. The University submitted that the “endangerment” requirement was met where there was a weighty chance of a risk to health or safety. The Tribunal drew a distinction between “risk” and ”danger”, saying this:

“We do not fully accept either submission. We must take into account that in s38(1) Parliament chose to use the word “endanger” and did not refer either to “injury” or to “prejudice”. On the other hand, considering the statutory purpose of freedom of information, balanced by exemptions, we are not persuaded that it would be right to read the word “endanger” in a sense which would engage the exception merely because of a risk. A risk is not the same as a specific danger. Every time a motorist drives on the road there is a risk that an accident may occur, but driving is only dangerous when a particularly risky situation arises. So, for example, there is always a risk that a researcher might become a target for persons opposing animal research by unlawful and violent means, but the researcher’s physical health would not be endangered unless a specific attack were made. We need to consider the likelihood of such an attack, and the likelihood of other conduct which would endanger mental health or other aspects of safety.”

Secondly, the Tribunal emphasised the importance of establishing a causal link between disclosure of the particular information and the envisaged danger:

“There is also a causation criterion to be met. We are not required to consider in the round the likelihood of the researchers or other persons being endangered, but specifically the likelihood of such endangerment as a result of disclosure of the requested information.”

For most of the requested information, section 38(1) was not engaged: the evidence showed the risk of harmful action by animal rights extremists to be low, and the evidence in support of engaging the exemption mainly comprised expressions of fear. A small amount of information did, however, come within the exemption because of how it was likely to be misconstrued. This raises the third important point, on which the Tribunal said this:

“In this connection we wish to make clear our view that information cannot generally be withheld simply because it might be misunderstood or taken out of context. A public authority can publish together with information released under FOIA whatever explanations or additional information it wishes. But we recognise that there comes a point where a particular piece of information may be so liable to be misunderstood and misused that the exemption is engaged.”

The fourth notable point concerns the in-built weight of the exemption. Section 38(1) is difficult to engage, but where it is engaged, the public interest in maintaining it is strong:

“Self-evidently, there would need to be very weighty countervailing considerations to outweigh a risk to health or safety which was of sufficient severity to engage section 38(1).”

Tim Pitt-Payne QC appeared for Newcastle University.

Robin Hopkins

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.

Recent ICO decisions on Freedom of Information

Posted on | by Amy Rogers

In Decision Notice FS50139215, issued this week, the Commissioner has ordered the Met Police to disclose particular CCTV footage showing the movements of the perpetrators of the terrorist attacks on London on 7 July 2005.

The Met had argued that the footage was exempt from disclosure under sections 30(1)(a) (information held for the purposes of an investigation) and 38(1)(a) (health and safety) of FOIA.

The Commissioner accepted that the exemption in section 30(1)(a)(i) and (ii) of FOIA was engaged. However, he rejected arguments that such disclosure would render meaningful police investigation impossible and that, pending any trial, the CCTV footage should only be disclosed to the CPS, the Courts or other bodies involved in the investigative process.

The Commissioner’s comments on the public interest in full disclosure of any material relating to the 7/7 bombings are of particular interest. He noted, for example, that whilst there had already been widespread media coverage in relation to the bombings, “full disclosure in order to avoid any suspicion of ‘spin’ or ‘cover up’ will continue to be in the public interest regardless of the volume of related information that has previously been disclosed”. On similar lines, he observed that in circumstances in which the 7/7 attacks had been the subject of conspiracy theories, the fact that “disclosure would presumably support the official account of the time line and basic facts of the attacks and reduce any perceived lack of transparency about how this account was formed, along with removing any suspicion of ‘spin’ or ‘cover up’” was a valid public interest factor in favour of disclosure.

The Commissioner rejected the Met’s claim that the exemption under section 38(1)(a) of FOIA (health and safety) was engaged at all, emphasising that the arguments advanced by the Met on this point had lacked detail in relation to the specific CCTV footage in question. He also concluded that, whilst not cited by the Met, the personal data exemption in section 40(2) of FOIA was engaged in respect of footage from which individuals other than the perpetrators of the attacks could be identified. The Met must redact this information, such as by pixellation, before the footage is disclosed.

In other Decision Notices issued this week, the Commissioner has held that:

  • Oxford, Cambridge and Manchester Universities and Kings College and University College, London must disclose information relating to primate research. A complainant had sought such information from a number of universities, including information as to the numbers and species of primates referred to in returns to the Home Office, and as to current research. The Commissioner held that the exemptions relied upon by the universities were not engaged (variously, sections 38 (health and safety), 40 (personal data) and 43 (commercial interests) of FOIA).

 

  • The Department of Health must disclose civil servants’ submissions to Ministers in relation to proposed variations to consultants’ contracts as part of its ‘modernising medical careers’ initiative. Whilst the exemption in section 35(1)(a) (policy) of FOIA was engaged, the public interest in maintaining the exemption did not outweigh that in disclosure (FS50151464).

 

  • In contrast, the FCO was entitled to refuse to confirm or deny whether it held particular information as to identification of a voice heard in the video showing the beheading of Ken Bigley in Iraq in 2004. The FCO successfully relied upon sections 23(5) (information supplied by or relating to the security services) and 24(2) (national security) of FOIA (FS50188323).