Remember those “Spot the Difference” competitions?

In 2010 the Information Commissioner’s Office (ICO) issued a Decision Notice concerning a request made to Buckinghamshire County Council under the Freedom of Information Act 2000 (FOIA). The request was for the names of councillors who had chosen to join the Local Government Pension Scheme (LGPS). The ICO agreed with BCC that

the withheld information is personal data relating to these councillors

But disagreed that section 40(2) and (3) of FOIA exempted the information from disclosure, rejecting an argument that the councillors would not have had a reasonable expectation of disclosure of the information:

the Commissioner has not found any evidence to support a view that disclosing the requested information would be likely to cause unnecessary or unjustified damage or distress to the individuals concerned

and

The Commissioner is satisfied the requested information relates primarily to the councillors’ public lives and does not intrude significantly on their private and family lives.

Consequently BCC was

to provide the complainant with the list of names of the ten councillors who were members of the LGPS

Compare and contrast with a Decision Notice issued recently relating to a FOIA request to Central Bedfordshire Council (CBC). The request was for names of councillors who had chosen to join the Local Government Pension Scheme (LGPS). The ICO agreed that

information regarding the details of an individual’s pension is personal data

And agreed with CBC that section 40(2) and (3) of FOIA exempted the information from disclosure, saying

individuals will have a reasonable expectation that information about their pension, and their decision whether or not to take one, will not be routinely disclosed

and that the councillors’

expectations of privacy with regard to their pensions are still objectively reasonable as it relates far more to their private lives than their professional lives

Consequently CBC was correct

to rely on section 40(2) to withhold…the requested information

A few questions arise: are BCC councillors entitled to bring a complaint against their council for unfair processing? if so, would BCC have a defence that they complied with a legal notice from the statutory regulator? Is local government “lagging behind best practice in other parts of the public sector” (para 20 of FS50233989) or not? Which Decision Notice should other councils follow when they get similar requests? And, finally, did the ICO even look at the earlier decision when it issued the second?

DISCLAIMER: I have a professional connection to one of the public authorities involved.

Section 13(1) of the Data Protection Act (DPA) provides a right to compensation for a data subject who has suffered damage by reason of any contravention by a data controller of any of the requirements of the Act.  The domestic authorities are clear that “damage” in this sense consists of pecuniary loss. Thus, section 13(1) is a “gateway” to a further right of compensation under section 13(2)(a), for distress. The right to distress compensation cannot be triggered unless section 13(1) damage has been suffered.

This point was addressed in Johnson v The Medical Defence Union Ltd (2) [2006] EWHC 321 and  on appeal (Johnson v Medical Defence Union [2007] EWCA Civ 262), with Buxton LJ in the latter saying

section 13 distress damages are only available if damage in the sense of pecuniary loss has been suffered

In the case at first instance  the judge had found against Mr Johnson in his claim that a failure to renew his membership was caused by unfair processing of his personal data. However, if the first head of claim had succeeded, pecuniary damages in the sum of £10.50, to cover the cost of a breakfast (don’t ask) would have been owed, and

the price of that breakfast [would have represented] his gateway to a right to recover compensation for distress under section 13(2)(a)

This point, already largely hypothetical, fell away on appeal, because the Court held 

The Judge was not entitled to find that this, the only item of pecuniary damage that survived, was attributable to damage for which the MDU was responsible

The judgment in a recent case, Halliday v Creation Consumer Finance Ltd (CCF) [2013] EWCA Civ 333 had been anticipated as possibly clarifying whether nominal, as opposed to substantial, damages under section 13(1), could suffice to be a gateway to distress compensation, and, indeed, whether the DPA effectively transposes the requirements of the European Data Protection Directive to which it gives effect. The case concerned errors by the defendant regarding disputed payments, which affected the claimant’s credit record. As Robin Hopkins said in a recent post on the Panopticon blog, after reports of the ex tempore judgment surfaced,

In Halliday…nominal damages (of £1) were awarded, thereby apparently fulfilling the ‘damage’ requirement and opening the door for a ‘distress’ award (though note that Panopticon has not yet seen a full judgment from the Court of Appeal in this case, so do not take this as a definitive account). If that approach becomes standard practice, claimants may be in much stronger positions for seeking damages.

Now that the full judgment has been made available, it can be seen that Mr Halliday did indeed succeed in using the nominal £1 damages as a gateway to £750 compensation for distress, but only because the defendant conceded the point:

this issue, which was the main issue of the proposed appeal to this court, is now academic as the respondent, CCF, concedes an award of nominal damages is “damage” for the purposes of the Directive and for the purposes of section 13(2) of the Data Protection Act 1998

So it appears we must continue to wait for fuller consideration of the meaning of the word “damage” in both the Directive and section 13 DPA.

UPDATE: Robin Hopkins has blogged on this case at the Panopticon blog. As he says – and as I may have omitted – “the judgment is not without its notable points”.

Not strictly true of course. However – you wouldn’t run a physical shop this way, so why run web scripts that have the same effect?

I don’t want to register for your website – I just want to dip in for a quick look then leave (that still counts as a page view for you to quote to advertisers) and I’d suggest that’s pretty standard practice for the large majority of internet users.

I confidently state that no one, ever, in recorded history, has thought, when they got a pop-up inviting them to register their details, “Oo, how helpful that was. Thank you for obstructing my journey to what I really wanted”.

And I know I could probably configure a pop-up blocker to bypass them, but I don’t (often) walk around town accompanied by a bouncer. So just stop it, everyone who does this.

Mr Plod once sent friends a rhyme
Which was rumoured to be out of line
When a request was lodged
To see what it was
His bosses politely declined

Chris Graham agreed with the force
Saying “It’s personal data because
He’s easy to spot
From the words that we’ve got:
It’s exempt from disclosure, of course!”

A Tribunal may have to decide later
- As the statutory arbitrator -
If it’s rather perverse
To suggest that a verse
Can possibly be personal data.

The Freedom of Information Act 2000 (FOIA) contains a few howitzers with which a relevant public authority can obliterate an otherwise valid request for information. The most familiar of these is at section 53, whereby, in relation to a Information Commissioner (IC) decision notice served on a government department requiring them to disclose information, a Cabinet minister can issue a veto, from which there is no right of appeal.

Less well-known are the certificates which can be served under sections 23 and 24, by ministers, to be conclusive evidence that information requested was supplied by or relates to national security bodies, or is exempt from disclosure for reasons of national security. (These are appealable, either by the IC or by the applicant, under section 60 of FOIA).

Less well-known still is a section which allows the Speaker of the House of Commons (or the Clerk of the Parliaments) to issue a certificate which provides conclusive evidence that disclosure would or would be likely to cause prejudice to the effective conduct of public affairs. This is section 36(7) and, read with section 2(3)(e), it provides an absolute exemption to disclosure, which the IC is duty bound to accept. In effect, it is a means whereby the Houses of Parliament can prevent FOIA disclosure, with no right of appeal.

Thus, in a decision notice published this week about a request for information relating to the tax treatment of residential accommodation provided by the House of Commons, the IC says

Given the nature and provenance of the certificate, the Commissioner is obliged by section 36(7) FOIA to accept the certificate as “conclusive evidence” that the opinion is reasonable in both process and substance and that the alleged inhibition would be likely to occur; therefore, the Commissioner accepts that section 36(2) FOIA is engaged and that the withheld information is exempt

Any appeal of this decision would have the same outcome: if a properly-made certificate states that the exemption applies, then it does, and no regulator or court can say different. So, despite what appears to be a potentially high degree of public interest in the information requested, about, in the applicant’s words

issues of principle… the provision of residential accommodation is a substantial benefit, and its tax treatment is of legitimate interest to the public

we will not get to see it.

There could, I imagine, potentially be an application for judicial review of the decision to issue the certificate, in the same way that the ministerial veto at section 53 is potentially amenable to judicial review, but this would have to be on the classic public law grounds, and would be a very difficult challenge.

One rather wonders why this provision has not been used more often. It has been used in the past to prevent disclosure of information relating to names and salaries of MPs’ staff, and to prevent disclosure of information about the claiming of parliamentary privilege. But when requests were made for disclosure of MPs’ expenses information, the exemption claimed was the one relating to personal data. A section 36(7) certificate would, it seems to me, have rendered those requests dead in the water. Did the House of Commons miss a cynical trick?

Paul Gibbons – “FOIMan” – has blogged about this, and he wonders if this is evidence of a current lack of resources for the ICO. I think the ICO is under-resourced, and this is set to get worse but I’m not sure I agree with Paul that @FOIMonkey’s case illustrates this.

When Christopher Graham, the current Information Commissioner, was appointed, he inherited a damning backlog of FOI complaint cases, some going back several years. He stated openly that, to deal with this backlog, there might at times be a “silver standard” of investigation (as opposed to a gold one) from his office. True to his word, and much to his credit, the backlog has been greatly reduced, to the point where no cases were more than one year old, at the time of the publication of his last annual report.

So, I would agree with Paul, if @FOImonkey’s case was simply one of these “silver standard” ones, but that surely is not the case here. The refusal by the Royal Household to consider itself a public authority for the purposes of the Environmental Information Regulations 2004 was made over a year ago, and I understand the complaint to the ICO was made promptly after that. This means the ICO has had effectively twelve months to consider a request of considerable (if perhaps obscure) constitutional interest and significance. Even with limited resources twelve months is an awfully long time for a qualified solicitor and national Director of Freedom of Information to have to arrive at a decision.

I have a bigger concern though.

Paul is by no means uncritical of the ICO, and he notes that internal quality controls appear to be lacking, but he is perhaps not overly concerned with the act of copying itself (which could potentially be in breach of copyright):

I’m sure there are FOI out there who have copied chunks of the ICO’s decisions into their own FOI responses without citing them where it suited

However, I think the difference here is related to authority, and perception.

It is quite right for an FOI officer to quote ICO decisions in their own FOI responses (although I agree that citations should be given). Common law relies on a system of precedent and judicial authority, and, although the ICO is a regulator, and not a judicial body, the principle is similar: refer to and cite the authoritative statements of those who make decisions on the law in question.

However, the ICO is the one in a position of decision-making authority here, and to cite the website (without attribution) of one of the parties in a case he has to decide, gives rise to a perception of lack of independence, or bias. And that is an extremely important thing for a regulator to avoid doing.

As it is, most of the unattributed quotes are merely of uncontroversial statements of fact, and I am not sure they are clear evidence of any actual bias on the part of the ICO, but perception of bias is corrosive in itself. The classic test, as propounded by Lord Hope in Porter v Magill [2002] 2 AC 357, is

whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased

Maybe I’m not fair-minded (although I do consider myself reasonably informed) so I would have to invite other observers to say whether they would conclude there was a real possibility of bias in this case.

UPDATE: the ICO has now tweeted saying the failure to cite sources was an error. Fair enough, but I’m not sure that changes my views here.

Regardless of one’s views of the Health and Social Care Act 2012* it is important that, if “any willing provider” can be commissioned to provide private health services, there should be parity of treatment. And, indeed, the need to ensure a “Fair Playing Field” was, at least ostensibly, what led the Secretary of State for Health to ask Monitor (“the sector regulator of NHS-funded health care services”) to conduct

an independent review of matters that may be affecting the ability of different providers of NHS services to participate fully in improving patient care

That review has now finished, and was laid before Parliament by the Secretary of State yesterday.

My specific interest is in the section regarding transparency. Monitor note that

Historically, public providers have faced higher levels of scrutiny than other providers, including requests for information under the Freedom of Information Act. This degree of scrutiny can improve accountability to patients and promote good practice. Freedom of Information requirements have been extended through the standard NHS contract to private and charitable providers. However, it is not clear that this is operating effectively as yet, and other aspects of transparency do not apply across all types of provider

Accordingly

The Government and commissioners should ensure that transparency, including Freedom of Information requirements, is implemented across all types of provider of NHS services on a consistent basis

This could be read as a recommendation that the Freedom of Information Act 2000 (FOIA) be extended to all (including private) providers.

However, I am not sure we should be too optimistic that the recommendation will be read in this way by the Department of Health. The Justice Committee, in its recent post-legislative scrutiny of FOIA, was unconvinced that FOIA needed to be extended to private providers of public services, feeling that the use of contractual terms to ensure transparency was sufficient:

The evidence we have received suggests that the use of contractual terms to protect the right to access information is currently working relatively well…We believe that contracts provide a more practical basis for applying FOI to outsourced services than [extending FOIA to those private providers]

and rather unsurprisingly the government, in its response to the Justice Committee, agreed

 The Government therefore does not intend, at this time, to legislate to extend FOIA obligations to contractors.

 Given this, I suspect that, rather than taking up Monitor’s recommendation and extending FOIA to private healthcare providers, the government will merely reiterate the point about the use of contractual terms to promote transparency aims.

However, even if FOIA is not to be explicitly extended to include private contractual providers, there is a potential way forward which would achieve those transparency aims in a clearer and more enforceable way. This is the proposal by the Campaign for Freedom of Information, who observed (in light of the post-legislative scrutiny reports)

We don’t believe that relying on every authority to insert an appropriate clause into every contract one at a time is likely to be effective. The FOI Act itself should state that all such contracts are deemed to include a wide disclosure requirement, automatically bringing information about the contractor’s performance and the way the contractor goes about it within the Act’s scope

This seems eminently sensible. I wish eminently sensible things would happen more often than they do.

*I happen to think it’s an example of an ideologically-driven privatisation of public services which we will look back on in decades to come as a drastic mistake.

Now I remember when I signed up with the TPS a few years ago it was remarkably successful in stopping all nuisance calls, especially when, if one got through, I’d threaten to complain. However, my retired friend won’t complain because, he says, “it wouldn’t achieve anything”. Until recently, I’d have tended to agree with him, but it is good to see the Information Commissioner’s Office (ICO) showing that it does have teeth when it comes to enforcement of the Privacy and Electronic Communications Regulations 2003 (PECR). The ICO have today announced that a monetary penalty notice of £90,000 has been served on a Glasgow company for a breach of the PECR.

DM Design, based in Glasgow, has been the subject of nearly 2,000 complaints to the ICO and the Telephone Preference Service (TPS). The company consistently failed to check whether individuals had opted out of receiving marketing calls – in clear breach of the law – and responded to just a handful of the complaints received.

In one instance an employee refused to remove a complainant’s details from the company’s system and instead threatened to “continue to call at more inconvenient times like Sunday lunchtime”

And it is interesting to note that the ICO say they intend to issue similar “fines” against two other companies.

Of course, this kind of robust enforcement action can only really happen if people complain about this type of call, either to the ICO or to the TPS. I will be encouraging my retired friend to do so, in the knowledge that it might actually achieve something.

Imagine that a local citizen blogger – let’s call her Mrs B, who is a member of a local church group – decides to let others know, by way of a website, some news and information about the group. She includes information for those about to be confirmed into the church as well as extraneous, light-hearted stuff about her fellow parishioners, including the fact that one of them has a broken leg. Now imagine that a complaint by one of the fellow parishioners that this website is intrusive is upheld and Mrs B is found to have breached domestic law.

The coercive power of the state being brought against a mere blogger would be, you might imagine, unacceptable. You might imagine that any such domestic law, in a country which is a signatory to the European Convention on Human Rights, would be held to be in breach of the free-expression rights under Article 10 of the same.

This sort of outcome, you might say, would surely be unimaginable even under the proposed regulatory scheme by Royal Charter agreed in principle by the main party leaders on 18 March.

But, as anyone who knows about data protection law will tell you, exactly this happened in 2003 in Sweden, when poor Mrs Bodil Lindqvist was prosecuted and convicted under national Swedish legislation on data protection and privacy. On appeal to the European Court of Justice her actions were held to have been the “processing” of “personal data” (and, in the case of the person with the injured leg, of the higher-category “sensitive personal data”) and thus those actions engaged Article 3(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data which is given domestic effect in Sweden by the law under which she was convicted. The same Directive is, of course, given domestic effect in the UK by the Data Protection Act 1998 (DPA).

The response to the proposed Royal Charter was heated, and many people noticed that the interpretative provisions in Schedule 4 implied the regulation of web content in general (if said content was “news-related material”), thus potentially bringing the “blogosphere” and various social media activities into jurisdiction. This has caused much protest. For instance Cory Doctorow wrote

In a nutshell, then: if you press a button labelled “publish” or “submit” or “tweet” while in the UK, these rules as written will treat you as a newspaper proprietor, and make you vulnerable to an arbitration procedure where the complainer pays nothing, but you have to pay to defend yourself, and that will potentially have the power to fine you, force you to censor your posts, and force you to print “corrections” and “apologies” in a manner that the regulator will get to specify.

But the irony is, that is effectively exactly the position as it currently stands under data protection law. If you publish or submit or tweet in the UK information which relates to an identifiable individual you are “processing” “personal data”. The “data subject” can object if they feel the processing is in breach of the very broad obligations under the DPA. This right of objection is free (by means of a complaint to the Information Commissioner’s Office (ICO)). The ICO can impose a monetary penalty notice (a “fine”) up to £500,000 for serious breaches of the DPA, and can issue enforcement notices requiring certain actions (such as removal of data, corrections, apologies etc) and a breach of an enforcement notice is potentially a criminal offence.

As it is, the ICO is highly unlikely even to accept jurisdiction over a complaint like this. He will say it is covered by the exemption for processing if it is “only for the purposes of that individual’s personal, family or household affairs (including recreational purposes)”. He will say this despite the fact that this position is legally and logically unsound, and was heavily criticised in the High Court, where, in response to a statement from the ICO that

The situation would clearly be impossible were the Information Commissioner to be expected to rule on what it is acceptable for one individual to say about…another individual. This is not what my office is established to do. This is particularly the case where other legal remedies are available – for example, the law of libel or incitement.

Mr Justice Tugendhat said

 I do not find it possible to reconcile the views on the law expressed in the Commissioner’s letter with authoritative statements of the law. The DPA does envisage that the Information Commissioner should consider what it is acceptable for one individual to say about another, because the First Data Protection Principle requires that data should be processed lawfully. The authoritative statements of the law are to be found not only in the cases cited in this judgment (including para 16 above), but also by the Court of Appeal in Campbell v MGN Ltd [2002] EWCA Civ 1373 [2003] QB 633 paras [72] to [138], and in other cases. As Patten J made clear in Murray, where the DPA applies, if processing is unlawful by reason of it breaching the general law of confidentiality (and thus any other general law) there will be a contravention of the First Data Protection Principle within the meaning of s.40(1), and a breach of s.4(4) of the DPA…The fact that a claimant may have claims under common law torts, or under HRA s.6, does not preclude there being a claim under, or other means of enforcement of, the DPA.

The ICO will decline jurisdiction because, in reality, he does not have the resources to regulate the internet in its broadest sense, and nor does he have the inclination to do so. And I strongly suspect that this would also be the position of any regulator established under the Royal Charter.

I’m not normally one for complacency, and I actually think that the fact that the coercive power of the state potentially applies in this manner to activities such as blogging and tweeting is problematic (not wrong per se, note, but problematic). But the fact is that, firstly, the same coercive power already applies, to the extent that such activities engage, for instance, defamation law, or contempt of court, or incitement laws, and secondly – and despite the High Court criticism – no one seems to be particularly exercised by the fact that the current DPA regulator is able to ignore the activities of the blogosphere, so I doubt that the social and legal will exists to regulate these activities. I hope I’m not wrong.

It is important to note that there is no requirement in the FOIA that those intending to make requests for information have any prior knowledge of the information they are requesting.

These words of the Information Commissioner (IC) in, Decision Notice FS50465008, are an important statement about the role of the Freedom of Information Act 2000 (FOIA) in investigative journalism and activism. They establish that, at least in the IC’s view, FOIA requests may be made on a speculative basis, without a knowledge of the specific contents of documents.

To many users and practitioners they are probably also an obvious statement about the right to information conferred by FOIA. If someone is asking for information from a public authority, it is self-evident that, at least in the large majority of cases, they do not know what the information specifically consists of – otherwise, why request it? As the IC goes on to say

The idea of a requirement of prior knowledge that the relevant information exists is itself contrary to the very purpose of the legislation, let alone prior knowledge as to what it comprises

The request in question, made – as those who followed the “Govegate” imbroglio might have guessed – by the impressively dogged journalist Christopher Cook (who has given me permission to identify him as the requester), was to the Cabinet Office for

the last email received by the [Prime Minister] personally on government business via a private non-GSI account. I also want the last government email sent by the PM via such an account

It was made in the context of suspicions that attempts might have been made to circumvent FOIA by conducting government business using private email accounts. For obvious reasons Chris was unlikely to be able to identify the specific type of information he sought, and the Cabinet Office knew this, telling the IC that

he has no idea of the nature of the information that may be contained in such emails, if indeed such emails even exist…For a request for a document to be valid, it needs to describe (if it would not otherwise be apparent) the nature of the information recorded in the document. The Cabinet Office does not accept that asking a public authority to undertake a search for emails without any subject matter, or reference to any topic or policy, sent using a particular type of account can satisfy the requirement on the application to ‘describe the information requested’

However, the IC rejected this, splendidly demolishing the Cabinet Office’s position with an argument by analogy

a request for the minutes of the last Cabinet meeting would clearly describe the information requested, even though it does not describe the content by reference to the matters discussed

I think this decision is particularly important because it accepts that, sometimes, a person contemplating requesting information from a public authority might not have a fully-formed view of what it is she wants, or expects to get. Authorities sometime baulk at requests which they see as “fishing expeditions”, but the practice of investigative journalism (in de Burgh‘s classic formulation “…to discover the truth and to identify lapses from it in whatever media may be available…”) will often involve precisely that, and the IC recognises this

Whilst public authorities might find such requests irritating, the FOIA does not legislate against so-called ‘fishing expeditions’

 The Cabinet Office must now treat Chris’s request as properly-made under FOIA. That does not mean that they will necessarily disclose emails from the PM’s private email account (in fact I’d be amazed if they did), but no one ever suggested the trade of investigative journalism was easy.

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