Tag: whether information held

EIR: when is information ‘held’?

Posted on | by Edward Capewell

One of the issues which commonly arises for information law practitioners is the question, which arises under both FOIA and the EIR, of whether a public authority actually holds the information which has been requested. The leading case on section 1(1) FOIA is University of Newcastle v IC & British Union for the Abolition of Vivisection [2011] UKUT 185 (AAC), [2011] 2 Info LR 54 and substantially the same approach has been adopted in, for example, Keiller v IC and University of East Anglia [2012] 1 Info LR 128 and Clyne v IC & London Borough of Lambeth [2012] 2 Info LR 24 in relation to regulation 3(2) EIR. What is required is a common-sense and non-technical approach. That, of course, is easier stated than applied.

The issue arose again in Holland v IC & University of East Anglia (EA/2012/0098). Like Keiller, this case was concerned with the Climatic Research Unit (“CRU”) at UEA, the source of the so-called ‘Climategate’ controversy. Readers will recall that in November 2009 there was an unauthorised disclosure of a large number of emails concerning work undertaken at the CRU. The ensuing controversy led the university to set up the Independent Climate Change E-mail Review (“ICCER”) chaired by Sir Muir Russell, which reported in 2010.

Mr Holland, who had made a submission to the ICCER, requested “copies of all of the information held” by it. A lot of information had been published on the ICCER’s own website, and essentially what remained, the tribunal found, was the Review’s “working papers”. It seems not to have been in issue that they were in the physical possession of Sir Muir Russell or his solicitors and not UEA. The issue was, therefore, whether the information was held ‘on behalf of’ UEA for EIR purposes. The Commissioner thought not, and the tribunal agreed with him.

Directing itself by reference to BUAV as well as a number of other FTT decisions, the Tribunal decided that it needed first to examine the nature of the legal and practical relationship between UEA and the ICCER/Sir Muir Russell. It found that the inquiry could have been conducted internally, but that UEA had decided to externalise it not, as Mr Holland had argued, in order to avoid its obligations under FOIA and the EIR, but “at a time when UEA’s credibility was very much at stake, in order to inspire confidence in the independence of the findings” (para 104). It went on to find that there was nothing in the EIR, nor in the Aarhus Convention, which prevents public bodies from externalising functions or which means that environmental information thereby created is necessarily held by the public body (para 105). Although there was no written document evidencing a contract between Sir Muir and UEA, the Tribunal found that a contract did exist (para 108). It did, however, express considerable surprise at the absence of a written contract and of the fact that “there was no discussion … about the information that would be received or generated by the ICCER” (para 110). Nevertheless, the Tribunal accepted that both parties had proceeded on the assumption that UEA would have no claim to or be able to access the information and that it would be held by the ICCER on its own behalf (para 114).

The Tribunal went on to hold that there was no other sense in which the ICCER was beholden to UEA or in which its independence was compromised. It was not, as Mr Holland had argued, merely a ‘sham’: “we do not find it likely that [UEA] would have compounded its problems so greatly, and risked its credibility so completely, by setting up an inquiry that was independent in name only” (para 116). Neither the involvement of a Professor Boulton on the Review panel (who had previously worked for UEA) nor the decision not to publish the Appellant’s submission in full affected the fundamental independence of the ICCER (paras 117-118). It followed that the information requested was not held ‘on behalf of’ UEA and the appeal therefore failed. Interestingly, the Tribunal did perhaps give some succour to Mr Holland by saying in para 122 “It may be that the information should be held by the UEA and there may be good reason why, barring anything provided in confidence, the information should be passed to the UEA to form part of its historical records. Were that to happen, then in the future, the information may be held by the UEA.” Leaving aside the question-begging first sentence (why, in EIR terms, ‘should’ UEA hold this information?), the second sentence is an important reminder that the answer to the question of whether information is held is one which is liable to change over time and with circumstances.

Edd Capewell

Chagos Refugees Group in the First-Tier Tribunal: some key points

Posted on | by Robin Hopkins

The Chagos Archipelago forms part of the British Indian Ocean Territory (“BIOT”). In the late 1960s and early 1970s, the inhabitants of the Chagos Islands were required to leave those islands. At or around that time, a US military base was established on Diego Garcia, the largest of the Chagos Islands. The removal of the “Chagossians” has been a matter of considerable political and media debate, as well as complex legal proceedings. Two legal challenges are ongoing: Chagos Islanders v UK before the European Court of Human Rights, and Bancoult (No 3) before the domestic courts.

In 1999, the then Foreign Secretary commissioned a feasibility study concerning the possible resettlement of some of the islands. A preliminary study was conducted, followed a “phase 2B” study conducted by external consultants. The final report of the phase 2B study was made public. There was some ministerial correspondence about the studies.

In April 2010, representatives of the Chagossians sought information from the Foreign & Commonwealth Office about these studies. In particular, they asked for any draft versions of the phase 2B study (and any accompanying reports), as well as related ministerial correspondence.

The FCO disclosed some information, but withheld one note to a minister (Baroness Amos). As regards the draft reports, it claimed that – if these existed at the time of the request – they were held by the external consultants who authored them. The FCO maintained that the consultants did not hold that information “on behalf of” the FCO for the purposes of the Environmental Information Regulations 2004. The Commissioner upheld the FCO’s position.

The Tribunal (chaired by Andrew Bartlett QC) upheld the Chagossians’ appeal in part. A disclaimer to the following analysis: I appeared for the Information Commissioner. The post below is not a commentary on the case, but (with my Panopticon hat on) I highlight some of the points of general interest to FOIA and EIR practitioners. For a broader commentary on the case, see the excellent post from David Hart QC on One Crown Office Row’s UK Human Rights Blog.

The Tribunal in Chagos Refugees Group in Mauritius and Chagos Social Committee (Seychelles) v IC and FCO (EA/2011/0300) agreed with the FCO that information held by the consultants was not, at the date of the request, held “on behalf of the FCO” for EIR purposes. The Tribunal applied the guidance on the approach to “held” from University of Newcastle v IC and BUAV [2011] UKUT 185 (AAC), [2011] 2 Info LR 54 (see paragraphs 59-67). Generally, whether information is “held” will be a question of fact, but the Tribunal added that “we would also wish to qualify the proposition in McBride v IC and Ministry of Justice (EA/2007/0105) that whether information is held on behalf of a public authority is “simply a question of fact”. In some cases it will be important to determine the exact nature of the legal relationship between a person holding information and the public authority, or to determine the legal structure pursuant to which information was created and held” (paragraph 61).

The Tribunal analysed both the factual and legal relationship between the FCO and the consultants in reaching its conclusion. Its decision should be given careful attention when considering whether information is “held on behalf of” a public authority.

On the adequacy of the FCO’s own searches, the Tribunal said this at paragraph 70:

“… we consider it is relevant to draw attention also to the Tribunal’s remarks in the context of a FOIA request in Muttitt v IC (EA/2011/0036) (31 January 2012) at [68], to the effect that a search should be conducted intelligently and reasonably, and that this does not mean it should be an exhaustive search conducted in unlikely places: those who request information under FOIA will prefer a good search, delivering most relevant information, to a hypothetical exhaustive search delivering none, because of  the cost limit.”

As to the Baroness Amos note, the Chagossians were largely successful in their appeal: disclosure was ordered, bar a few redactions. In its analysis, the Tribunal considered the time at which the public interest was to be assessed. It has become almost trite in FOIA and EIR cases that the answer to this question is “at the time of the request or, at the latest, the date at which the public authority ought to have responded”. This question is, however, not altogether settled. In this case, the Tribunal was content to assess matters up to the date of the conclusion of the FCO’s internal review (see paragraphs 22-29). On a similar point, the UpperTribunal in Evans (see my earlier post on this) by no means considered it beyond doubt that matters should only be assessed at or shortly after the date of the request.

The Tribunal considered that weighty public interests would be served by disclosure of the contents of the Baroness Amos note, despite that being only a small amount of information. At paragraph 112 it said this:

“The amount of information in a potentially disclosable document is without doubt a material matter to take into account. At the same time, it is important not to discount unduly the significance, in the public interest, of the disclosure of small amounts of information. Publicly useful freedom of information requests are generally limited in scope. If too broad, they face the obstacle under FOIA of the costs limit, and under the EIR of the proportionality requirement. If the Tribunal were to take an unduly minimalist view of the value of the publication of relatively small amounts of information on matters of considerable legitimate public interest, this would materially reduce the effectiveness of the legislation. We would regard this as tending to conflict with the general purpose of  the legislation, as seen in the authoritative remarks in Sugar v BBC [2012] UKSC 4 at [76]-[77], which in our view apply with equal force to the EIR, particularly in view of the presumption in favour of disclosure found in EIR regulation 12(2).”

This outweighed the public interest in maintaining the exception for internal communications. Timing was key to the ‘safe space’ argument advanced by the FCO and the Commissioner. The Tribunal endorsed the approach taken in the Department of Health (NHS risk registers) case, whereby policy formulation can “dip in and out” of the need for a safe space. The Tribunal in this case concluded that (paragraph 123):

“We acknowledge the prospect that at some future date – perhaps in 2013, perhaps later – after the final conclusion of the two pending pieces of litigation, the resettlement policy is likely to be the subject of reconsideration. In our view that was at all material times, and remains today, a very weak reason for maintaining the confidentiality of a document written in entirely different circumstances in 2002.”

Robin Hopkins

Local authorities and NHS Trusts (1): compromise agreements, officers’ identities and gagging clauses

Posted on | by Robin Hopkins

From a FOIA perspective, local authorities and NHS Trusts have this in common: both frequently receive requests for details of compromise agreements and other details about individual officers’ employment and disciplinary records. Three recent cases before the Tribunal confirm the general trend that – absent case-specific and well-evidenced arguments – the Commissioner and Tribunal re reluctant to order disclosure of such personal data, notwithstanding the context of public sector employees.

First, Trago Mills v IC and Teignbridge DC (EA/2012/0028) involved a request for the details of the severance package of a senior planning officer. Based on his dealings with that officer during a number of planning applications, the requester suspected that the stated reason for the officer’s departure from the Council (i.e. early retirement/redundancy) was in fact a ‘shield’, and that the officer had left for reasons of misconduct. The requester had also asked for information on that officer’s handling of planning applications in 2007.

The Council refused the request for the severance information on s. 40(2) grounds. The Commissioner and the Tribunal agreed: the requester’s suspicions were not borne out by the evidence, and the Council had a duty to respect its former employee’s reasonable expectation of privacy. The Tribunal also found that the Council held no further information within the scope of the request given the thoroughness of its searches. I represented the Council in this case, so no further commentary from me. For a detailed analysis of the issues, see the Local Government Lawyer’s article here. 11KBW’s Chris Knight represented the Information Commissioner.

Second, McFerran v IC (EA/2012/0030) involved a police search of a Council residence owned by Shropshire County Council. At the police’s request, two junior Council officers were present, but they had not been involved in any of the decision-making. The requester had concerns about the search and about what the Council may have told the police in the lead-up to the search. He requested the names of the two junior officers as well as their immediate superior. The Council refused, relying on s. 40(2).

The Commissioner ordered disclosure of the name of the more senior officer, but not of the two juniors. The requester’s appeal against the latter finding was dismissed, with the Tribunal observing that “although… there is clearly a legitimate public interest in transparency of activity by public authorities, which impinges on the personal freedom of householders, there is insufficient information provided to add significant weight to the general public interest in transparency in public affairs. The Appellant has not satisfied us, either, that his attempts to have the matter investigated are being thwarted by the absence of the names of the individuals in question. If there is sufficient information about the event to interest those responsible for an investigation the absence of names will not deter them.”

The McFerran decision illustrates that, when it comes to junior officials, general transparency considerations will usually not suffice for the disclosure of personal data: case-specific factors will be needed. Local authorities should, however, avoid the blanket non-disclosure of the names of all officers below a certain level of seniority. What matters is what work they have done, rather than what grade or band they are at.

McFerran also illustrates that requesters will often face the following sorts of objection: even if you have valid grounds for concern or complaint about individuals, there are ways of addressing those without disclosure of personal data to the world at large.

The third recent s. 40(2) arose in the context of NHS Trusts and allegations of Trusts using “gagging clauses” in compromise agreements to silence criticism or whistleblowing from departing employees. In Bousfield v IC and Six NHS Trusts (EA/2011/0212; 0213; 0247; 0250; 0251; 0252), the requester was interested not in any specific individual’s compromise agreement, but in the use of such agreements by NHS Trusts more generally. He asked: “Please provide copies of all compromise agreements you have entered into with doctors of any grade. Please also provide a list of exploratory or illustrator issues covered by the compromise agreements (ie the reasons the compromise agreements were entered into)”. One Trust refused to confirm or deny whether it held such information, relying on s. 40(5) (the argument being that there was a risk of identifying any individuals involved, which would breach the first data protection principle) and s. 43(3) (the argument being that confirmation or denial would prejudice the Trust’s commercial interests). Other Trusts also refused the requests, relying on a combination of s. 40(2) (personal data), s. 41 (actionable breach of confidence), 42 (legal professional privilege) and 36(2) (prejudice to the effective conduct of public affairs).

The Commissioner agreed, and the Tribunal has dismissed the requesters appealed. One Trust had conceded that, if there was evidence of gagging clauses being used to prevent former employees from raising any issues concerning patient safety, there would be enormous public interest in disclosing such practices. The decisive issue in this case, however, was that the Tribunal was satisfied on the evidence that no such clauses were being used by these Trusts. Therefore, it concluded that “it is entirely sympathetic to the overall concern that the Appellant feels with regard to the apparently increasing prevalence of gagging clauses but does not find that issue or concern in any way material to the matters which the Tribunal in fact has had to consider”.

It seems that, if the evidence had borne out the requester’s concerns, the analysis may have been very different. This ‘gagging clause’ issue has been considered at Tribunal level before: Bousfield v IC (EA/2009/0113). It may yet resurface.

Robin Hopkins

FOUR NEW LOCAL AUTHORITY DECISIONS BY THE FIRST-TIER TRIBUNAL

Posted on | by Robin Hopkins

The bulk of the First-Tier Tribunal’s most recent decisions under both FOIA and the EIR have concerned local authorities. Adequate searches, deleted emails and hard drives and listed building consent feature prominently. Here are some notable points from four of the decisions.

Deleted email account: Tribunal finds against Council

Councillor Jeremy Clyne v IC and London Borough of Lambeth (EA/2011/0190) merits close attention from local authority information officers. Southern Rail carried out work at its Streatham cleaning depot without planning permission. The Council considered taking enforcement action, and instructed a consultancy to report on this option. The requester asked for all reports and communications about the consultant’s draft report. The Council provided some information, but the requester was dissatisfied. He maintained, as requesters often do, that it was ‘incredible’ that further information did not exist. The Council insisted that it had not deleted any relevant information. This was enough to satisfy the Commissioner – but not the Tribunal.

One issue went in the Council’s favour: the Tribunal agreed that information held by its external solicitors was not held on its behalf in the circumstances. Otherwise, the key issues went against the Council.

First, the Tribunal disapproved of the Council’s approach to the wide request for information:

“Lambeth argued that in light of the broad scope of the request it had been reasonable to limit its searches to the planning department which was most likely to hold information. The Tribunal disagrees.  It is not for the public authority unilaterally to redraw the ambit of the request; if the scope is too wide to enable a proper search to be carried out, efforts should be made to refine the request.”

The Council further argued that “the breadth of the request meant that it was too difficult to ensure that every loose end was tied up. They argued that Mr Clyne should resubmit targeted individual requests to follow up these loose ends”. Again, the Tribunal disagreed.

Secondly, as to the adequacy of search and whether, on the balance of probabilities further information was held, the Tribunal applied the established approach from Bromley v IC and Environment Agency (EA/2006/0072) [2011] 1 Info LR 1273. A number of further documents were discovered only after the Commissioner’s decision; the Council had used incorrect or inadequate search terms; important communications about the consultant’s report appear to have gone unanswered (which seemed unlikely) and there was no paper trail accounting for the substantial changes between the draft and final versions of the report. The Tribunal noted that:

“Such a fundamental change as happened between the October 2007 and February 2008 versions of the report in [the requester’s] experience could only happen upon instruction and

not spontaneously. Consequently there ought therefore to be a paper trail.  Planning and legal departments are in different buildings, therefore more likely to communicate by email rather than “pop their head around the corner”. The practice of the Council and their preferred method of communication is by email… The Tribunal has not received an explanation that satisfies it that no recorded information was generated, nor an adequate explanation as to why if generated it has not been retained.”

This led to the third important feature of the decision: following Keiller, the Tribunal ordered the Council to restore the email account of the planning officer who was the focus of the requested information (his account had been expunged some time after the complaint to the Commissioner), to search that account and then to provide the requested information or issue a refusal notice.

Deleted hard drive: Tribunal finds for Council

The requester in Gilbert v IC and Northumberland County Council (EA/2012/0274) was a public transport campaigner seeking records about the 681 bus service (and the Council’s alleged ‘decimation’ of bus services). The Council provided some information, and again the Commissioner was satisfied.

As with Clyne, there were some difficulties with the Council’s case before the Tribunal. The Appellant provided four items he possessed which fell within the scope of his request, including correspondence between the Council and his MP. He argued that: “the Council has withheld or destroyed correspondence which confirms the depth of opposition to its highly unpopular bus cuts.” Further, the Council’s former Head of Transport, to whom the MP had written, had left the Council in March 2011 and his hard drive was wiped on his departure (which was after the handling of the request). The Tribunal observed that:

“the Council’s systems for locating information appear not to have functioned well in this case, as illustrated by the initial failure to identify relevant correspondence with an MP. Wiping the hard disc of a departed senior member of staff, without first checking that it did not contain information which might not be available elsewhere is a practice which might merit review.”

However – again by application of Bromley – the Tribunal was satisfied that on balance the Council had done enough and that no further information was likely to be held. This was largely down to the quality of the searches carried out by the relevant officer in response to the request:

“He circulated a communication to all members of the integrated transport unit  ‘who are either known to be involved in the discussions relating to service 681 or may have been party to documents or other forms of relevant evidence during this period’.  Further he made a search of the Council’s CRM using a range of search terms relating to the bus, the

operator and the route.”

In the Tribunal’s view, that was an adequate search, and the appeal was dismissed.

Statutory nuisance and listed buildings are not ‘private’ interests

In Kuschnir v IC and Shropshire Council (EA/2011/0273), the requester’s (listed) property suffered from damp attributable to a problem at the (listed) bicycle shop next door, Hawk Cycles. The Council deemed this a statutory nuisance and ordered Hawk Cycles to undertake remedial works. Hawk Cycles provided the Council was a schedule of works. The requester sought a copy of that schedule. His request was refused, based on regulation 12(5)(f) EIR (adverse effect on the interests of the person providing the information).

The Tribunal found that the exception was not engaged. It did find there to be sufficient adverse interest to engage the exception, although it saw “no evidence that the disclosure of the information would have made litigation against Hawk Cycles more likely, and if any claim was started by Mr Kuschnir, it is abundantly clear that he would have been entitled to disclosure of the information in the context of the litigation.  In our view the potential litigation context therefore adds little to the debate.”

Another requirement for the engagement of regulation 12(5)(f) is, however, that the provider of the information “was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority”. This was the stumbling block for the Council: the Tribunal construed section 80(1) of the Environmental Protection Act 1990 – which empowers councils to take “such other steps as may be necessary” for requiring the abatement of a statutory nuisance – as meaning that the Council could have compelled Hawk Cycles to provide it with the schedule of remedial works.

The Tribunal went on to find that even if the exception was engaged, the Commissioner and the Council had got the public interest balance wrong. The public interest in disclosure was not great, but the Commissioner had been wrong to find it to be of a private nature. This was in part because the case involved statutory nuisance. The Tribunal added that “it is also relevant we think that Mr Kuschnir’s property was a listed building and one that the Council itself features on guided walks of Shrewsbury.”

The Commissioner had also wrongly characterised the public interest in maintaining the exception. It could not be said that disclosure would undermine the voluntary provision of information to the Council in circumstances Hawk Cycles “where were clearly under threat of an abatement notice requiring them to execute works to prevent a recurrence of the nuisance if they did not co-operate with the Council”.

The requester was therefore entitled to a copy of the schedule.

PDF sufficient

The requester in Forster v IC and Westminster City Council (EA/2011/0235) wanted to park his motorbike in Westminster. He asked for “a list of motorcycle parking bays (the addresses where they are located) so that I can plan trips into town.” The Council refused the request, relying on section 21 FOIA (information accessible by other means). It provided a link to the website which contained about 100 pages of images of a list – in a pdf file – of the names of all the streets in the City of Westminster on which motorcycle bays are located. The requester complained that the information was not “accessible” because it did not allow him to search, re-order or edit the data in the list for his own purposes without having to type the data into another file. He argued that the Commissioner has confused accessibility to a document which contains information, with accessibility to the information contained in a document. The Tribunal found, however, that those arguments were premised on the assumption that the Council held the list in the form that he wanted – but it did not; it had outsourced its IT, and the pdf was all it held. It could therefore rely on section 21.

Robin Hopkins

PRIVATE EMAILS AND FOIA: AAAARGGGHH!

Posted on | by Robin Hopkins

I blogged before Christmas about the ICO’s guidance on the circumstances in which emails sent from private accounts could come within the scope of FOIA. That guidance was prompted by a complaint to the ICO alleging that the Secretary of State for Education had used a private email account to communicate about departmental business. The complainant was the Financial Times‘ Chris Cook. A few hours ago, he published one of the emails about which he complained: https://blogs.ft.com/ftdata/2012/02/13/how-do-you-define-official/#axzz1mHjkKGlL

The ‘Goudie’ referred to in the email is 11KBW and Panopticon’s own James Goudie QC; the litigation prompting Mr Gove’s ‘aaargh!’ is the Building Schools for the Future judicial review, heard in January 2011, whose large cast of counsel included a smattering of Panopticonners (James Goudie, Rachel Kamm and me).

I also discussed the ICO’s guidance in an editorial comment piece, written at the end of 2011 and appearing in the latest issue of the Freedom of Information Journal: FOI Journal Vol 8 issue 3.

Robin Hopkins

CLIMATEGATE IN THE TRIBUNAL: DELETED EMAILS ON BACKUP SERVERS ARE “HELD”

Posted on | by Robin Hopkins

The “Climategate” controversy surrounding the University of East Anglia’s Climatic Research Unit has received extensive media coverage. The Unit’s computer servers were hacked into in late 2009 (around the time of the Copenhagen Summit). Following the posting of much of this material on the internet, it was alleged that, in some instances, the scientific data had been manipulated so as to produce conclusions in support of the existence of climate change, or to suppress conclusions pointing the other way. FOI requests were inevitable.

The issue has now surfaced at Tribunal level. Keiller v IC and University of East Anglia (EA/2011/0152) is an important decision, not only because of the underlying subject matter, but because it deals with the thorny question of whether or not deleted emails which still exist on back-up servers are “held” for FOIA purposes.

The case concerned a request for the covering email from one of the Unit’s researchers to a colleague in the US, attaching datasets. The requester contended that the covering email contained instructions as to the use of that data, and he wished to see those instructions. UEA responded that, as the covering email had been deleted, it no longer “held” the requested information. The Commissioner agreed – but the Tribunal did not.

It had “no doubt” that the deleted email had been backed up onto the server which had been seized by the police as part of the investigation into the hacking affair. It was “rather disconcerted” by UEA’s evidence on this issue: its witness was unable to answer several pertinent questions about UEA’s email servers, back-up systems and deletion/retention policy. It also found that this email probably would have contained instructions or stipulations on the use of the data.

Following Harper v IC (EA/2005/0001), the Tribunal dismissed the argument that even if the email was on the back-up server, UEA did not “hold” that email for FOIA purposes: in one sense, deletion suggested an intention no longer to hold an email – but the whole purpose of a back-up system is to ensure emails are still recoverable after deletion. In the Tribunal’s view, “it was a matter of common-sense that information backed-up onto a backup server in the control of UEA, but deleted from the computer on which the original email was composed, was still ‘held’ by UEA”. It “considered the counter-arguments to be over-technical”.

UEA must now establish whether the email exists on the back-up server being held by the Police, obtain a copy and either disclose it or state its case for withholding the email. This may not be the last time a Tribunal considers “Climategate”.

On a related note, the Tribunal will consider an appeal on Friday 27th January in which the disputed information is the name of the principal donor behind the Global Warming Policy Forum, a think tank fronted by Lord Lawson, which is sceptical about prevailing theories on climate change – see the Guardian‘s story here.

Robin Hopkins