Category Archives: Environmental Information Regulations

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.

3 Comments

Filed under Environmental Information Regulations, Freedom of Information, Information Commissioner, transparency

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.

3 Comments

Filed under Environmental Information Regulations, Freedom of Information, Information Commissioner, Information Tribunal, vexatiousness

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.

 

1 Comment

Filed under Confidentiality, Environmental Information Regulations, Information Tribunal