Category Archives: Environmental Information Regulations

Porsches, farts and environmental information

A quick post on what I think is a rather remarkable Information Tribunal ruling.

The First-tier Tribunal (Information Rights) (“FTT”) has recently handed down a judgment on a case relating to a request for information sent to the Driver and Vehicle Standards Agency (DVSA) about a safety evaluation of an apparent throttle malfunction in the Porsche Cayman. The request was refused by DVSA on the grounds that section 44 of the Freedom of Information Act 2000 (FOIA) provided an absolute exemption to disclosure, by way of existing restrictions on disclosure of this kind of information within the Enterprise Act 2002. Upon appeal, the Information Commissioner’s Office (ICO) upheld this refusal (pointing out that in fact the correct public authority was not the DVSA, but rather the Department of Transport, of which DVSA is an executive agency).

However, when the request exercised his right of appeal to the FTT, he introduced an argument that in fact the proper regime under which his request should have been considered was the Environmental Information Regulations 2004 (EIR) rather than FOIA, on the grounds that his request concerned an activity that directly affected the environment, namely an activity to regulate vehicle noise emissions. The ICO resisted this, on the basis that

the disputed information concerned a safety test of a certain vehicle “which is not an activity which affects, or is likely to affect, the elements and factors described in Regulation 2(1)(a) or (b) EIR”

This in itself was an interesting argument, touching on issues regarding the Glawischnig remoteness test. This refers to the judgment of the Court of Justice of the European Union in the 2003 case C-316/01 (Eva Glawischnig and Bundesminister für soziale Sicherheit und Generationen) which, observing that Article 2(a) of Directive 90/313 (to which the EIR give UK domestic effect)

classifies information relating to the environment within the meaning of that directive in three categories: information on the state of water, air, soil, fauna, flora, land and natural sites (‘the first category’), information on activities or measures affecting or likely to affect those environmental factors (‘the second category’), and information on activities or measures designed to protect those factors (‘the third category’)

said that

Directive 90/313 is not intended…to give a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with one of the environmental factors mentioned in Article 2(a). To be covered by the right of access it establishes, such information must fall within one or more of the three categories set out in that provision. [Emphasis added]

However, the FTT in the instant case decided, contrary to the positions of all the parties that “the safety test in this case is not an activity, which can be said to affect the elements of the environment” (the appellant was arguing essentially that “his request concerned an activity that directly affected the environment, namely an activity to regulate vehicle noise emissions”), the EIR were engaged merely because the safety test first required a car to be started, which by extension meant that started engine would produce emissions:

in order to test the issue complained of (i.e. the vehicle throttle response under specific conditions) the vehicle must be driven, or at the very least the engine must be running.
Consequently, by conducting the safety test:
– the DVSA caused emissions by driving the vehicle (r.2(1)(b));
– at the very least those emissions affected the air (r.2(1)(a));
– they did so through a measure (a safety test) which was likely to affect the elements (air) (r.2(1)(c));

But following this argument, the EIR would tend give the public, pace the ruling of the CJEU in Glawischnig, “a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with [the environment]”? Information, say, held by the DVLA on the number of people who passed their driving test first time would be environmental because by running the driving test the DVLA caused emissions by requiring the tester to drive the car, at the very least those emissions affected the air and they did so through a measure (a driving test) which was likely to affect the elements (air). Or consider DEFRA conducting TB tests on cattle – in order to conduct the test the inspector must travel to a farm, and by doing so DEFRA cause emissions by causing a vehicle to be driven (or a train ride to be taken etc). At the very least those emissions affect the air, and they do so through a measure which is likely to affect the elements (air). Or this: in order to deliver mail, the Royal Mail must drive vehicles which cause emissions. At the very least those emissions affect the air, and they do so through a measure (their policy to use motor vehicles to deliver the mail) which is likely to affect the elements.

What next? Is information on the statement about the benefits of dietary fibre in the human diet environmental information, because by giving it the Department of Health caused more farts (emissions) which affect the air through a measure (the statement) which was likely to affect the (elements) air?

Maybe I’m being silly, but I don’t think I am. Rather, I think the FTT are, and I wonder if the judgment will be appealed.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with..

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Upper Tribunal rules on complying “promptly” with an FOI request

The Upper Tribunal has ruled on what “promptly” means in the FOI Act. The answer’s no surprise, but it’s helpful to have binding authority

The Freedom of Information Act 2000 (FOIA) demands that a public authority must (subject to the application of exemptions) provide information to someone who requests it within twenty working days. But it goes a bit further than that, it says (at section 10(1))

a public authority must comply…promptly and in any event not later than the twentieth working day following the date of receipt

But what does “promptly” mean in this context? This issue has recently been considered by the Upper Tribunal, in John v ICO & Ofsted 2014 UKUT 444 AAC.Matters before the Information Commissioner (IC) and the First-tier Tribunal (FTT) had turned on when the initial request for information had been made and responded to. The IC held that Ofsted had failed to respond within twenty working days, and Ofsted appealed this. Mr John argued before the FTT that although the IC had found in his favour to the extent that it held that Ofsted had failed to respond within twenty working days, it had failed to deal with the issue of whether Ofsted had responded promptly. The FTT found in Ofsted’s favour, but did not, Upper Tribunal Judge Jacobs observed, deal with Mr John’s argument on promptness. That was an error of law, which Judge Jacobs was able to remedy by considering the issue himself.

“Promptly” he observed, has a range of dictionary meanings, some of which relate more to attitude (“willingly”, or “unhesitatingly”) and others more to time (“immediate”, or “without delay”). The context of section 10(1) of FOIA “is concerned with time rather than attitude, although the latter can have an impact on the former”. It is clear though that “promptly” does not mean, in the FOIA context, “immediately” (that, said Judge Jacobs, would be “unattainable”) but is more akin to “without delay”:

There are three factors that control the time that a public authority needs to respond. First, there are the resources available to deal with requests. This requires a balance between FOIA applications and the core business of the authority. Second, it may take time to discover whether the authority holds the information requested and, if it does, to extract it and present it in the appropriate form. Third, it may take time to be sure that the information gathered is complete. Time spent doing so, is not time wasted.

What is particularly interesting is that Judge Jacobs shows a good understanding of what the process for dealing with FOIA requests might be within Ofsted, and, by extension, other public authorities:

A FOIA request would have to be registered and passed to the appropriate team. That team would then have to undertake the necessary research to discover whether Ofsted held the information requested or was able to extract it from information held. The answer then had to be composed and approved before it was issued.

In the instant case all this had been done within twenty working days:

I regard that as prompt within the meaning and intendment of the legislation. Mr John has used too demanding a definition of prompt and holds an unrealistic expectation of what a public authority can achieve and is required to achieve in order to comply with section 10(1).

This does not mean, however, that it might not be appropriate in some cases to enquire into how long an authority took to comply.

The Upper Tribunal’s opinion accords with the approach taken in 2009 by the FTT, when it held that

The plain meaning of the language of the statute is that requests should be responded to sooner than the 20 working days deadline, if it is reasonably practicable to do so. (Gradwick v IC & Cabinet Office EA/2010/0030)

It also accords with the IC’s approach in guidance and decision notices under FOIA, and its approach under the Environmental Information Regulations 2004 (where the requirement is that “information shall be made available…as soon as possible and no later than 20 working days”).

Most FOI officers will greet this judgment as a sensible and not unexpected one, which acknowledges the administrative procedures that are involved in dealing with FOIA requests. Nonetheless, as a binding judgment of an appellate court, it will be helpful for them to refer to it when faced with a requester demanding a response quicker than is practicable.

Appeals and Cross Appeals

A further issue determined by the Upper Tribunal concerned what should happen if both parties to a decision notice disagree with some or all of its findings and want to appeal, or at least raise grounds of appeal: must there be an appeal and cross-appeal, or can the respondent party raise issues in an appeal by the other party? Judge Jacobs ruled, in a comprehensive a complex analysis that merits a separate blog post (maybe on Panopticon?), that “although cross-appeals are permissible, they are not necessary”

 

 

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One for the Environmental Information Regulations + Data Protection nerds

In 2010 the Court of Justice of the European Union (CJEU) held that, insofar as they required the automatic publication of the name and other particulars of natural persons (as opposed to legal persons) of beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD), certain articles of European Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy were invalid. This was because they imposed an obligation to publish personal data relating to these beneficiaries (who might be private individuals or sole traders) without permitting criteria such as the periods, frequency and amounts involved to be considered.

Rip-roaring start to a blog post eh?

In the words of the First-tier Tribunal (Information Rights) (FTT) which has recently had to consider the impact of those CJEU cases on an Environmental Information Regulations 2004 (EIR) case

[the CJEU] ruled that such a requirement for publication was incompatible with an individual’s right for privacy where the agreement holder concerned was a private individual or sole trade

The relevance of the European judgments was that Natural England, which had until 2010 published information about beneficiaries of funds granted to farmers and landowners under the European Stewardship Agreement (ESA), even when it consisted of personal data of private individual or sole trader beneficiaries, ceased such automatic publication and removed previously published information from its website. This was despite the fact applicants for an ESA had, until 2010, been given a privacy notice in a handbook which explained that the information would be published, and had signed a declaration accepting the requirements.

Notwithstanding this, when it received a request for agreements reached with farmers and landowners in the River Avon flood plains area, Natural England decided that the personal data of the beneficiary (there appears to have just been one) was exempt from disclosure under regulations 12(3) and 13 of the EIR (which broadly provide an exception to the general obligation under the EIR to disclose information if the information in question is personal data disclosure of which would be in breach of the public authority’s obligations under the Data Protection Act 1998 (DPA)).

The Information Commissioner’s Office had agreed, saying

although consent for disclosure has been obtained [by virtue of the applicant’s declaration of acceptance of the handbook’s privacy notice], circumstances have changed since that consent was obtained. As Natural England’s current practice is not to publish the names of those who have received grants with the amounts received, the Commissioner is satisfied that the expectation of the individuals concerned will be that their names and payments will not be made public.

However, the FTT was not convinced by this. Although it accepted that it was possible “that the applicant no longer expected the relevant personal data to be disclosed” it considered whether this would nevertheless be a reasonable expectation, and it also took into account that the effect of the CJEU’s decision had not been expressly to prohibit disclosure (but rather that the validity of automatic publication had been struck down):

When one combined the facts that an express consent had been given, that there had been no publicity by NE or mention on its website of the ECJ decision and finally, that the effect of that decision had not, in the event been to prohibit disclosure, [the FTT] concluded that such an expectation would not be reasonable

Furthermore, given that there was no real evidence that disclosure would cause prejudice or distress to the applicant, given that some identifying information had already been disclosed into the public domain and given that there was a legitimate interest – namely “accountability in the spending of public monies” – in the information being made public (and disclosure was necessary to meet this legitimate interest) the disclosure was both fair and supported by a permitting condition in Schedule 2 of the DPA. For these reasons, disclosure would not, said the FTT, breach Natural England’s obligation to process personal data fairly under the first data protection principle.

So maybe not the most ground-breaking of cases, but it is relatively rare that an FTT disagrees with the ICO and orders disclosure of personal data under the EIR (or FOI). The latter is, after all, the statutory regulator of the DPA, and its views on such matters will normally be afforded considerable weight by any subsequent appellate body.

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The FOI ministerial veto – why not?

The Court of Appeal has ordered disclosure of private correspondence between Prince Charles and the government. The judgment is potentially a triumph for transparency, but I have my doubts whether it reflects Parliament’s intentions when passing the FOI Act. And there will be a further appeal…

In September 2012 the Administrative Appeals Chamber of the Upper Tribunal (UT) handed down a judgment which struck me then, as it does now, as a remarkable work of research and scholarship. It was ruling on requests by the Guardian journalist Rob Evans – made as far back as April 2005 – under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR) for disclosure of information in private letters sent by the Prince of Wales to government ministers on matters of official policy. The UT’s judgment ran to 65 pages with three annexes, went into detailed analysis of constitutional conventions regarding the heir to the throne, and its decision was that the correspondence should be disclosed (overturning the prior decisions of the Information Commissioner (IC)). Subsequently, the Attorney General issued a certificate under section 53 FOIA – a “ministerial veto” – whose effect was to disapply the UT’s decision. The Attorney General’s certificate, in rather wider-spaced text, ran to ten pages.

Section 53 requires only that the accountable person (a minister)

gives the [Information] Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion [that there had not been a failure to comply with the FOIA]

It is, as I’ve argued before , a bludgeon of an executive weapon, but it is, as are all acts of public authorities, potentially amenable to judicial review. So it was that, despite any statutory right of appeal, the Guardian made such an application. However, in July 2013, the High Court effectively decided that, although the ministerial power to override a superior court of record (let alone the statutory decision-maker, in the form of the IC) appeared to be a “constitutional aberration”, the proposition that “the accountable person is not entitled simply to prefer his own view to that of the tribunal” must be rejected. As Davis LJ said (para 111)

why not? It is inherent in the whole operation of s.53 that the accountable person will have formed his own opinion which departs from the previous decision (be it of Information Commissioner, tribunal or court) and may certify without recourse to an appeal. As it seems to me, therefore, disagreement with the prior decision (be it of Information Commissioner, tribunal or court) is precisely what s.53 contemplates, without any explicit or implicit requirement for the existence of fresh evidence or of irrationality etc. in the original decision which the certificate is designed to override

However, Davis LJ refused to accept that the wording of section 53 (“…stating that he has on reasonable grounds formed the opinion…”) permitted of an interpretation that:

the accountable person can, as it were, self-certify as to the availability of reasonable grounds

rather,

In my view, the language chosen clearly is sufficient to connote that an objective test is to be applied

But how to conduct that objective test? For Davis LJ, it must be that the reasonable grounds are “cogent”:

if an accountable person is to interfere, by way of exercise of the power of executive override, with the decision of an independent judicial body then that accountable person must be prepared and able to justify doing so. I am reluctant to talk in terms of burden of proof. But in terms of burden of argument the burden is in practice on the accountable person to show that the grounds for certifying are reasonable

Lord Dyson in the Court of Appeal has taken issue with this, saying (para 38) that

I do not consider that it is reasonable for an accountable person to issue a section 53(2) certificate merely because he disagrees with the decision of the tribunal. Something more is required […]
Examples of “something more” are given as
a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law
Accordingly, as the Attorney General failed to give this “something more” but “simply disagreed with the evaluation made by the UT”, he failed to give reasons amounting to “reasonable grounds”. Thus (putting to one side a crucial other ground on which the appeal succeeded, relating to the EIR and European law, which I will deal with in a later blog post) the certificate had to be quashed.

As Dr Mark Elliot argues Lord Dyson here “adopted a significantly more exacting conception of reasonableness” than had the High Court and I would commend Dr Elliot’s piece to you as an expert analysis I am not competent to give.

However – and it pains me to say it, because I really don’t like section 53 – wasn’t it precisely Parliament’s intention that the accountable person did “merely” have to state that he had formed – on reasonable grounds – a different opinion to the preceding tribunal? If he cannot arrive at a different opinion, in the absence of “something else”, isn’t section 53 fundamentally weakened, even sidestepped? Indeed, Lord Dyson in my view arrives at this point, when he says

On the approach of the Divisional Court to section 53(2), the accountable person can override the decision of an independent and impartial tribunal which (i) is reasonable, (ii) is the product of a detailed examination (fairly conducted) of the issues after an adversarial hearing at which all parties have been represented and (iii) is not challenged on appeal. All that is required is that the accountable person gives sensible and rational reasons for disagreeing with the tribunal’s conclusion. If section 53(2) has that effect, it is a remarkable provision not only because of its constitutional significance (the point emphasised by the Divisional Court), but also because it seriously undermines the efficacy of the rights of appeal accorded by sections 57 and 58 of the FOIA
to which I am tempted to respond, adopting Davis LJ’s rhetorical device, “why not?” – that seems to have been what Parliament intended.

No doubt we shall see this explored more – the Attorney General is reported to have sought, and been given, leave to appeal to the Supreme Court.

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Will there be blood?

The First-tier Tribunal (Information Rights) (FTT) has overturned a decision by the Information Commissioner that the Northern Ireland Department for Health, Social Services and Public Safety (DHSSPS) should disclose advice received by the Minister of that Department from the Attorney General for Northern Ireland regarding a policy of insisting on a lifetime ban on males who have had sex with other males (“MSM”) donating blood.

On 11 October 2013 the Northern Ireland High Court handed down judgment in a judicial review application, challenging the decision of the Minister and the DHSSPS maintain the lifetime ban. The challenge arose because, in 20011, across the rest of the UK, the blanket ban which had existed since 1985 had been lifted.

DHSSPS lost the judicial review case, and lost relatively heavily: the decision of the Minister was unlawful for reasons that i) the Secretary of State, and not the Minister, by virtue of designation under the Blood Safety and Quality Regulations 2005, was responsible for whether to maintain or not the lifetime ban, ii) similarly, as (European) Community law dictated that this was a reserved matter (an area of government policy where the UK Parliament keeps the power to make legislate in Scotland, Northern Ireland and Wales), the decision was an act which was incompatible with Community law, iii) the Minister had taken a decision in breach of the Ministerial Code, by failing to refer the matter, under Section 20 of the Northern Ireland Act 1998, to the Executive Committee, and iv) although a ban in itself might have been defensible, the fact that blood was then imported from the rest of the UK (where the ban had been lifted) rendered the decision irrational.

Running almost concurrently with the judicial review proceedings was a request, made under the Freedom of Information Act 2000 (FOIA), for advice given to the Minister by the Attorney General for Ireland. The FOIA exemption, at section 42, for information covered by legal professional privilege (LPP) was thus engaged. The original decision notice by the Information Commissioner had rather surprisingly found that it was advice privilege, as opposed to litigation privilege. The IC correctly observed that for litigation privilege to apply

at the time of the creation of the information, there must have been a real prospect or likelihood of litigation occurring, rather than just a fear or possibility

and, because the information was dated October 2011, and leave for judicial review had not been sought until December 2011

at the time the information was created, ltigation was nothing more than a possibility

But one questions whether this can be correct, when one learns from the FTT judgment that DHSSPS had been sent a pre-action protocol letter on 27 September 2011. Again rather surprisingly, though, the FTT does not appear to have made a clear decision one way or the other which type of privilege applied, but its observation that

when the request was made judicial review proceedings…were already underway

would imply that they disagreed with the IC.

This discrepancy might lie behind the fact that the FTT afforded greater weight to the public interest in favour of maintaining the exemption. It was observed that

[the existence of the proceedings] at the time of the request seems to us to be an additional specific factor in favour of maintaining the exemption. It seems unfair that a public authority engaged in litigation should have a unilateral duty to disclose its legal advice [para 19]

Additionally, the fact that the advice was sought after the decision had been taken meant that it could give “no guide to the Minister’s motives or reasoning”.

Ultimately – and this is suggestive that the issue was finely balanced – it was the well-established inherent public interest in the maintenance of LPP which prevailed (para 21). This was a factor of “general importance” as found in a number of cases summarised by the Upper Tribunal in DCLG v The Information Commissioner and WR (2012) UKUT 103 (AAC).

Because the appeal succeeded on the grounds that the section 42 exemption applied, the FTT did not go on to consider the other exemptions pleaded by DHSSPS and the Attorney General – sections 35(1)(a) and 35(1)(c), although it was very likely that the latter at least would have also applied.

Aggregation of public interest factors

Because the other exemptions did not come into play, the FTT’s observation on the IC’s approach to public interest factors where more than one exemption applies are strictly obiter, but they are important nonetheless. As all good Information Rights people know, the European Court of Justice ruled in 2011, that when more than one exception applies to disclosure of information under the Environmental Information Regulations 20040 (EIR), the public authority may (not must)  weigh the public interest in disclosure against the aggregated weight of the public interest arguments for maintaining all the exceptions. The IC does not accept that this aggregation approach extends to FOIA, however (see para 73 of his EIR exceptions guidance) and this was reflected in his decision notice in this matter, which considered separately the public interest balance in respect of the two exemptions he took into account. He invited the FTT to take the same approach, but, said the FTT, had the need arisen, the IC would have needed to justify how this “piecemeal approach” tallied with the requirement at section 2(2)(b) of FOIA to consider “all the circumstances of the case”. Moreover, the effect of the IC’s differing approaches under EIR and FOIA means that

there will be a large number of cases in which public authorities, the ICO and the Tribunal will be required to make a sometimes difficult decision about which disclosure regime applies in order to find out how to conduct the public interest balancing exercise

I am not aware of anywhere that the IC has explained his reasoning that aggregation does not apply in FOIA, and it would be helpful to know, before the matter becomes litigated (as it surely will).

And I will just end this rather long and abstruse piece with two personal observations. Firstly, donating blood is simple, painless and unarguably betters society – anyone who can, should donate. Secondly, denying gay men the ability, in this way, to contribute to this betterment of society is absurd, illogical and smacks of bigotism.

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One for the insomniacs – Upper Tribunal on EIRs and commercial confidentiality

In May 2012 I blogged about a case in the First-tier Tribunal (Information Rights) (FTT).  It was an appeal by  Swansea Friends of the Earth against a decision of the Information Commissioner (IC) not to require the Environment Agency to disclose  information relating to financial guarantee arrangements put in place a landfill site operator, as a condition for obtaining a permit to operate a waste landfill site near Swansea.

I was critical of the FTT’s approach to breach of confidence, as it applies to the Environmental Information Regulations 2004 (EIR). However, with the handing down of judgment by the Upper Tribunal, following an appeal by Natural Resources Wales, as successor to the Environment Agency, I see I was wrong on two points (one minor, one major), right on another, and my key point was left undecided. Exciting stuff folks – hold on to your hats!

My minor error was to repeat the FTT’s description of Megarry J’s classic tri-partite breach of confidence test in Coco v A N Clark (Engineers) Ltd [1969] RPC 44 as being a common law doctrine. As the Upper Tribunal points out

That, to be correct, is a decision about the equitable doctrine of confidential communication (not the common law) that may arise otherwise than by contract between the parties

Silly me. Silly FTT.

Natural Resources Wales argued before the Upper Tribunal that

there was a statutory obligation in place [militating against disclosure], so that the Agency did not have to rely on equitable grounds

And this goes to my major error, which was to overlook, in striving to make a point of general application about the modern development of the law of confidence, that in this specific case the IC’s original Decision Notice had found that information in question was confidential for the purposes of Regulation 12(5)(e) of the EIR firstly because the provisions of the Pollution Prevention and Control (England and Wales) Regulations 2000 (PPCR) (which were the regulations – since revoked and remade – which applied to the licence in question) effectively made it so, and only secondly because the information and the circumstances by which it came into the Environment Agency’s control met the Coco v Clark tests.

Regulation 12(5)(e) provides that

a public authority may refuse to disclose information to the extent that its 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 Upper Tribunal held that the FTT had erred in law, saying (paragraphs 51-52), as had the IC in the first instance, that relevant provisions of the PPCR meant that confidentiality was “provided by law to protect a legitimate economic interest”:

disclosure of the relevant information would adversely affect confidentiality “where such confidentiality is provided by law to protect a legitimate economic interest”… Here that must be regarded as a reference across to regulation 31 of the 2000 Regulations. Regulation 31(1)(a) makes an express reference to commercial confidentiality. The factual background to these appeals makes it plain that the figures in question here were figures produced within the 2000 Regulations framework and were subject to the necessary application and ruling to protect confidentiality of them

So it was not necessary to consider whether the information was also covered by the equitable doctrine of confidence.

The point on which I was right (in my original post) was regarding whether, or the extent to which, regulation 12(5)(e) of the EIR was directly comparable to the similar section 41 of the Freedom of Information Act 2000 (FOIA). I said

This extension of the FOIA confidentiality principles into the EIR is controversial…

and the Upper Tribunal judge says

the tests in section 41 and regulation 12 are separate and cannot be read together to include in one something in the other simply because they deal with similar issues

which is pretty unequivocal (and see also Chichester District Council v IC and Friel (GIA 1253 2011), cited as authority for the lack of analogy between the two).

Finally, another point I hadn’t addressed (although Phil Bradshaw did, in the comments to my original post) concerns the failure by the FTT to distinguish between the location of information in documents, with the information itself. The FTT had said

the information came into existence through a process of negotiation between the parties

but this surely was not the case – rather, documents, containing information, came into existence through a process of negotiation. But the information itself was caught by regulation 12(5)(e)

the focus is on this information, not on any particular document or form in which those figures are recorded or any process by which they emerged. I accordingly agree with the challengers that in so far as the First-tier Tribunal concerned itself with the specific location of those figures in specific documents produced as part of the licensing process rather than the information itself it was wrong in law

So there you have it. A rip-roaring convoluted run-through of why an obscure old blog post by me was slightly wrong and slightly right. I aim to please.

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Who’s to blame for the Ministerial Veto?

The people to blame for our not being able to see Prince Charles’ lobbying correspondence with the government are not the judges – it’s the people who passed the FOI Act.

So, perhaps to no one’s great surprise, the judicial review application by the Guardian’s Rob Evans of the Attorney General’s ministerial veto has failed. As three of 11KBW’s array of brilliant information law advocates were instructed in the proceedings, I am sure we will see a Panopticon blog post shortly, and I wouldn’t try to compete with what will be the usual clear and percipient legal analysis (for which, also, see this excellent post from Mark Elliott). However, I wanted to address what I see as a potential misapprehension that this was an expression by the High Court that it agreed that the Attorney General was correct to issue a certificate vetoing disclosure of correspondence between Prince Charles and government departments. While the natural outcome of the court’s judgment is that the correspondence will not be disclosed, what was actually to be decided, and ultimately was decided in the Attorney General’s favour, was whether the exercise of his powers was lawful.

Under section 53(2) of the Freedom of Information Act 2000 (FOIA) a decision notice issued by the Information Commissioner (IC) (or later remade by a tribunal) ceases to have effect if an “accountable person” (effectively, either a Cabinet Minister or the government’s senior law officer) issues a certificate stating that he has “on reasonable grounds” decided that there was in fact no prior failure by the government department in question to comply with a request for information under FOIA. It is a power of executive override of a decision made by the statutory regulator (the IC). Its place in the statutory, and constitutional, scheme is what people should be objecting to, particularly in light of what the court in this case found.

The case dates back to the earliest days of the commencement of FOIA. Evans had requested correspondence between Prince Charles and various government departments, but those departments had refused to disclose. In a detailed and complex analysis the Upper Tribunal (the case having been transferred from the First-tier Tribunal) last September decided that, although the FOIA exemption (at section 37) relating to communications with the Royal Household was engaged, the public interest fell in favour of disclosure of the information (two points of note: first, the section 37 exemption, which was at the time of the request a qualified one, subject to the application of the public interest, has since been amended to make it absolute; second, there were other exemptions engaged, but the section 37 was the focal one). 

There was potentially further right of appeal, to the Court of Appeal and, ultimately, the Supreme Court. So why did the government not follow this route? The Campaign for Freedom of Information have issued a press release in which their Director Maurice Frankel says “Ministers should have to appeal against decisions they dislike and not be able simply to overturn them”. I agree (of course) but the reason the government departments did not appeal in this case is because any appeal would have had to have been on a point of law – the more senior courts could not have substituted different findings of fact, or decided whether an exercise of discretion should have been exercised differently. In short, I suspect the government did not appeal because they knew they would have been unsuccessful (or rather, their lawyers would presumably have advised, as lawyers do, that the chances of success were low).

Davis LJ, giving the leading judgment in the High Court, identified that

The underlying submission on behalf of the claimant is, in effect, that the accountable person is not entitled simply to prefer his own view to that of the tribunal

to which he countered

why not? It is inherent in the whole operation of s.53 that the accountable person will have formed his own opinion which departs from the previous decision (be it of Information Commissioner, tribunal or court) and may certify without recourse to an appeal. As it seems to me, therefore, disagreement with the prior decision…is precisely what s.53 contemplates, without any explicit or implicit requirement for the existence of fresh evidence or of irrationality etc. in the original decision which the certificate is designed to override. Of course the accountable person both must have and must articulate reasons for that view…[It] is for the accountable person in practice to justify the certification. But if he does so, and that justification comprises “reasonable grounds”, then the power under s.53(2) is validly exercised. Accordingly, the fact the certificate involves, in this case, in effect reasserting the arguments that had not prevailed before the Upper Tribunal does not of itself mean that it is thereby vitiated

 The power to issue a certificate exists under section 53(2), even if, as Lord Judge said, such a power “appears to be a constitutional aberration”. If it exists, it can be exercised, subject to it being done so lawfully. To admit of another interpretation, says David LJ, would be (taken with the claimant’s other arguments) to 

greatly [narrow] the ostensible ambit of s.53. As a matter of statutory interpretation I can see no justification for such a limitation, either on linguistic grounds or on purposive grounds

Parliament chose to enact s53, and any potential inherent constitutional imbalance or threat to the rule of law in its having done so is overcome by the availability of judicial review:

for the purposes of s.53 of FOIA, Parliament has provided the procedure by which this statutory provision is to be mediated. It is to be mediated, on challenge by way of judicial review, by the courts assessing whether the Secretary of State has certified “on reasonable grounds”. That involves no derogation from the fundamental principle of the rule of law: on the contrary, it is an affirmation of it.

For the same reasons, any challenge as to whether the exercise of the veto (as applied to environmental information under the Environmental Information Regulations 2004) offends the relevant sections of the originating EC Directive and the Aarhus Convention (specifically, those that deal with the need to have a “review procedure”) could also be met by reference to the availability of judicial review (although one wonders, along with the Aarhus Convention Compliance Committee, whether judicial review meets the requirement to be not “prohibitively expensive”).

And ultimately, and  relatively straighforwardly, it fell to the court to

consider whether the Attorney General has shown in the present case reasonable grounds for certifying as he did…[and] the Statement of Reasons appended to the certificate, once carefully read and analysed, does indeed demonstrate such “reasonable grounds”. The views and reasons expressed as to where the balance of public interest lies are proper and rational. They make sense. In fact, I have no difficulty in holding them to be “cogent”. Indeed – especially given that the Attorney General’s reasons and conclusions are in many respects to the like effect as those previously provided by the Information Commissioner – it will be recalled that the Upper Tribunal had itself, in paragraph 4 of its decision, acknowledged that there are “cogent arguments for nondisclosure”

So, if you want to criticise the fact that the Attorney General was allowed to veto disclosure of Prince Charles’ correspondence with the government, don’t criticise the judges, don’t even criticise (too much, at least) the Attorney General himself – rather, criticise Parliament which passed the law.

UPDATE: 25 July 2013

The Guardian reports that permission has been granted to appeal to the Court of Appeal.

 

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A Question of Apparent Bias?

So, the Information Commissioner’s Office (ICO) has been using “ctrl+v” a bit too much. Large chunks of source material from Wikipedia and – to me more crucially – the website of the Royal Household were quoted, without attribution (and without indication that they were quotations) in a decision letter upholding the Royal Household’s refusal to disclose environmental information to tweeter @foimonkey.

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.

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ICO cites Upper Tribunal on “vexatiousness”

The Information Commissioner has issued his first decision notice citing the Upper Tribunal’s judgments on “vexatiousness” since the latter were handed down

On 7 February 2013 the Upper Tribunal handed down judgment in three appeals relating to requests for information which had been refused either under section 14(1) of the Freedom of Information Act 2000, or regulation 12(4)(b) of the Environmental Information Regulations 2004. These two provisions provide, respectively, that the general obligation on public authorities to disclose information on requests is disapplied if the request is “vexatious” or “manifestly unreasonable”. Until the Upper Tribunal ruled on these cases there had been no authority from a relevant appellate court, and there was considerable variation in how the Information Commissioner and the First-tier Tribunal (Information Rights) approached these cases – I recently wrote about this position of uncertainty for PDP’s FOI Journal.

Both Paul Gibbons and Robin Hopkins have written, comprehensively, about the Upper Tribunal’s decisions, and the NADPO Spring Seminar will feature James Cornwell, of 11KBW, talking about the subject, so I merely blog now to observe that the Information Commissioner (IC) has correctly also taken note of them. In upholding a decision to refuse to disclose information, in decision notice FS50459595 (regarding a request to the Chief Constable of Surrey Police) he says

In reaching a conclusion in this case the Commissioner is also assisted by the Upper Tribunal’s comments in the case of Wise v Information Commissioner: “Inherent in the policy behind section 14 (1) is the idea of proportionality. There must be an appropriate relationship between such matters as the information sought, the purpose of the request and thetime and other resources that would be needed to provide it.”

It is interesting to note the IC’s reliance on this passage. What is also interesting (and not to be criticised) given the timing, is that the IC continues to refer to his own guidance (“When can a request be considered vexatious or repeated?”) in determining these sort of cases. The Upper Tribunal, while saying that “there is much to commend in the IC’s Guidance” (¶41 of the Dransfield judgment) did go on to give strong hints that it might need revising

in accordance with the thrust of this decision, it may be that the Guidance needs to place greater weight on the importance of adopting a holistic and broad approach to the determination of whether a request is vexatious or not, emphasising the attributes of manifest unreasonableness, irresponsibility and, especially where there is a previous course of dealings, the lack of proportionality that typically characterise vexatious requests

The fact that the IC honed in on the concept of a proportionality approach in this recent decision notice suggests the revised guidance might be appearing sooner rather than later.

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I should (not) Coco? EIRs and common law of confidence

Has the Information Tribunal once again followed too slavishly the principles of a 44-year-old expression of the doctrine of common law confidentiality?

In 2008 the then Information Tribunal held that the Home Office had not been entitled to rely on exemptions in the Freedom of Information Act 2000 (FOIA) when dealing with a request from the British Union of Anti-Vivisectionists (BUAV). Specifically, the Tribunal held that some of the information in question did not attract the protection of the common law of confidence (which, for complex reasons was invoked through the interplay of section 24 of the Animals (Scientific Procedures) Act 1986, and section 44 of FOIA, rather than section 41 FOIA, which deals in explicit terms with confidential information). The Tribunal relied heavily in its analysis of the law of confidence on the principles in the landmark case of Coco v AN Clark (Engineers) Ltd (1968) FSR 415 Ch D. On appeal to the High Court, Mr Justice Eady was critical of this reliance, pointing out that there had been significant developments in the law since Coco v Clark:

The Tribunal rather proceeded on the assumption that “the law of confidence” was to be found only in the principles explained by Sir Robert Megarry in Coco v Clark. It assumed that this authority provided an exclusive definition such that, whenever the phrase “in confidence” was to be found in a statute, the legislature must be taken to have had those principles in mind. With respect, however, this does not seem to me to be necessarily the case. Much will depend on context.

It is clear, for example, that the law of confidence is not confined to the principles governing the circumstances in which an equitable duty of confidence will arise; nor to the specialist field of commercial secrets. An obligation of confidence can arise by reason of an agreement, express or implied, and presumably also by the imposition of a statutory duty. (Secretary of State for the Home Office v BUAV & Anor [2008] EWHC 892 (QB))

It is thus important to bear in mind, for the present case, the broad principle, stated by Buxton LJ in McKennitt at [11], that ” … in order to find the rules of the English law of breach of confidence we now have to look in the jurisprudence of articles 8 and 10″. The Tribunal did not address these developments at all and thus proceeded on an incomplete understanding of the present law.

(emphasis added)

It is somewhat surprising, therefore, to read the recent judgment of a differently consituted First-Tier Tribunal (Information Rights), considering the extent to which environmental information was exempt from disclosure under regulation 12(5)(e) of the Environmental Information Regulations 2004 (EIR). Regulation 12(5)(e) provides that

a public authority may refuse to disclose information to the extent that its 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 case – Jones (on behalf of Swansea Friends of the Earth) v IC & Environment Agency  – involved a request for information relating to financial guarantee arrangements put in place a landfill site operator, as a condition for obtaining a permit to operate a waste landfill site near Swansea. It was common ground that the request for enviromental information, and that it was commercial in nature, so the main question which fell to be decided by the Tribunal was whether the information was

subject to a duty of confidence provided by law because the information was created and provided in circumstances giving rise to an obligation of confidence

At paragraph 35 of its judgment, the Tribunal says

The well-established test in Coco v Clark is that, apart from contract, for a common law breach of confidence claim to succeed, three elements must be
present:
(a) the information itself must “have the necessary quality of confidence about it;
(b) the information must have been imparted in circumstances importing an obligation of confidence; and
(c) there must be an unauthorised use of that information, to the detriment of the party communicating it.

(emphasis added)

With respect, the Tribunal here appears to have had no regard to Eady J’s dicta, and the many recent authorities he cited, in Home Office v BUAV.

Accordingly, the Tribunal went on hold (para 36) that it

[did] not see that it can be said that the [financial guarantee arrangement] information was imparted in circumstances importing an obligation of confidence…[because] the information came into existence through a process of negotiation between the parties

The Tribunal drew support for this from the findings of a (differently-constituted) tribunal in a case concerning the analagous (but differently-worded) section 41 exemption in FOIA concerning confidential information:

We recognise that section 41 refers more explicitly to information being “obtained” by the public authority from any other person. That is not the language of regulation 12(5)(e). However, we consider that the same element is imported by the incorporation of the common law test of breach of confidence into regulation 12(5)(e) of the EIR. In short, we find that the second element of the test in Coco v Clark has not been met and the information is not subject to a duty of confidence provided by law. (para 38)

This extension of the FOIA confidentiality principles into the EIR is controversial in itself. It becomes even more so when compared with a previous Tribunal decision on regulation 12(5)(e). In South Gloucestershire CC v IC & Bovis Homes (EA/2009/32) the more restrictive language of section 41 FOIA was explicitly contrasted with that of regulation 12(5)(e). The Tribunal held there that the Council’s own information could attract the protection of the law of confidence, without the necessity of its having been provided by a third party. See this helpful article by Practical Law Company for further on this, and for reference to the rather regrettable fact that South Gloucestershire v IC & Bovis Homes was not mentioned by the Tribunal in the instant case.

The slavish adherence to the Coco v Clark principles also risks – as Eady J alluded to when citing Buxton LJ –  overlooking the significance of the jurisprudence of the European Convention on Human Rights as it applies to confidential information. In Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council & Ors [2010] EWCA Civ 1214 the Court of Appeal considered, in a case under the Audit Commission Act 1998 (ACA), whether commercially confidential information could constitute a “possession” protected by article 1 of the First Protocol of the Convention, and, potentially, by extension, Article 8. Lord Justice Rix said

 I can see no reason, in the light of the Strasbourg jurisprudence which does exist, why valuable commercial confidential information, such as the evidence in this case demonstrates is in question here, particularly with respect to the second disputed documents, cannot fall within the concept of “possessions”

I am not entirely convinced that English common law has always regarded the preservation of confidential information as a fundamental human right, although I accept that it has been recognised and accepted by our common law. Nevertheless, in the light of at least article 1 of the first protocol, it can now be seen that it is a species of “possessions”, with which the state cannot interfere without justification

Disclosure of information under a regime such as the EIR (or FOIA) is different to the potential unfettered disclosure proposed under the ACA, and the public interest provisions might provide the “justification” for state interference discussed by Rix LJ. Nonetheless, it seems surprising to say the least that Jones v IC & Environment Agency proceeded without reference to any of the more recent authorities of confidentiality.

It is notable that Jones v IC & Environment Agency was determined on the papers, without the benefit of oral argument. It would greatly assist both public authorities, and the commercial organisations with whom they interact, if these points were fully argued, and a reasonably definitive position laid down, by an appellate court.

 

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