Category Archives: Information Tribunal

Information Tribunal increases monetary penalty for company which made spam calls

The trouble with asking for a second opinion is it might be worse than the first one. Reactiv Media get an increased penalty after appealing to the tribunal.

In 2013 the First-tier Tribunal (Information Rights) (“FTT”) heard the first appeal against a monetary penalty notice (“MPN”) imposed by the Information Commissioner’s Office (“ICO”). One of the first things in the appeal (brought by the Central London Community Healthcare NHS Trust) to be considered was the extent of the FTT’s jurisdiction when hearing such appeals – was it, as the ICO suggested, limited effectively only to allowing challenges on public law principles? (e.g. that the original decision was irrational, or failed to take relevant factors into account, or took irrelevant factors into account) or was it entitled to approach the hearing de novo, with the power to determine that the ICO’s discretion to serve an MPN had been exercised wrongly, on the facts? The FTT held that the latter approach (similar to the FTT’s jurisdiction in appeals brought under the Freedom of Information Act 2000 (FOIA)) was the correct one, and, notably, it added the observation (at para. 39) that it was open to the FTT also to increase, as well as decrease, the amount of penalty imposed.

So, although an appeal to the FTT is generally a low-risk low-cost way of having the ICO’s decision reviewed, it does, in the context of MPNs served either under the Data Protection Act 1998 (DPA) or the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), potentially carry the risk of an increased penalty. And this is precisely what happened when a direct marketing company called Reactiv Media recently appealed an ICO MPN. Reactiv Media bad been held to have made a large number of unsolicited telephone calls to people who had subscribed to the Telephone Preference Service (“TPS”) – the calls were thus in contravention of Reactiv Media’s obligations under regulation 21 of PECR. The ICO determined that this constituted a serious contravention of those obligations, and as some at least of those calls were of a kind likely to cause (or indeed had caused) substantial damage or substantial distress, an MPN of £50,000 was served, under the mechanisms of section 55 of the DPA, as adopted by PECR.

Upon appeal to the FTT, Reactiv Media argued that some of the infringing calls had not been made by them, and disputed that any of them had caused substantial damage or distress. However, the FTT, noting the ICO’s submission that not only had the MPN been properly served, but also that it was lenient for a company with a turnover of £5.8m (a figure higher than the one the ICO had initially been given to understand), held that not only was the MPN “fully justified” – the company had “carried on its business in conscious disregard of its obligations” – but also that the amount should be increased by 50%, to £75,ooo. One presumes, also, that the company will not be given a further opportunity (as they were in the first instance) to take advantage of an early payment reduction.

One is tempted to assume that Reactiv Media thought that an appeal to the FTT was a cheap way of having a second opinion about the original MPN. I don’t know if this is true, but it if is, it is a lesson to other data controllers and marketers that, after an appeal, they might find themselves worse off.

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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Filed under Data Protection, Information Commissioner, Information Tribunal, marketing, monetary penalty notice, nuisance calls, PECR

A bad day in court

If the Information Commissioner (IC) reasonably requires any information for the purpose of determining whether a data controller has complied or is complying with the data protection principles, section 43 of the Data Protection Act 1998 (DPA) empowers him to serve a notice on the data controller requiring it to furnish him with specified information relating to compliance with the principles. In short, he may serve an “information notice” on the data controller which requires the latter to assist him by providing relevant information. A data controller has a right of appeal, to the First-tier Tribunal (Information Rights) (FTT), under section 48 DPA.

These provisions have recently come into play in an appeal by Medway Council of an IC Information Notice. That it did not go well for the former is probably rather understating it.

It appears that, back in 2012, Medway had a couple of incidents in which sensitive personal data, in the form of special educational needs documents, was sent in error to the wrong addresses. Medway clearly identified these as serious incidents, and reported themselves to the IC’s Office. By way of part-explanation for one of incidents (in which information was sent to an old address of one of the intended recipients), they pointed to “a flaw in the computer software used”.  Because of this explanation (which was “maintained in detail both in writing and orally”) the ICO formed a preliminary view that there had been a serious contravention of the seventh data protection principle (which is, let us remind ourselves “Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data”). Moreover, the ICO served a Notice of Intent to serve a Monetary Penalty Notice (MPN). Upon receipt of this, it appears that Medway changed their explanation and said that the incident in question was a result of human error and that there was “no evidence of a ‘system glitch’”. It appears, however, that the ICO was concerned about discrepancies, and insufficient explanation of the change of position, and served a section 43 information notice requiring Medway to “provide a full explanation of how the security breach on 10 December 2012 occurred”. This was the notice appealed to the FTT.

However, during the FTT proceedings a third explanation for the incidents emerged, which seemed to combine elements of human error and system glitches. This was, observed the FTT, most unsatisfactory, saying, at paragraphs 28 and 29:

not only is this a third explanation of the breach but it is inconsistent with the other 2 explanations and is internally incoherent… The Tribunal is satisfied that there is still no reliable, clear or sufficiently detailed explanation of the incident to enable the Commissioner to be satisfied of:

a) what went wrong and why,
b) whether there was any prior knowledge of the potential for this problem,
c) what if any procedures were in place to avoid this type of problem at the relevant date,
d) why the Commissioner and the Tribunal have been provided with so many inaccurate and inconsistent accounts.

But even more ominously (paragraph 30)

The evidence provided to the Commissioner and the Tribunal has been inconsistent and unreliable and the Tribunal agrees with the Commissioner that it is reasonable that he should utilize a mechanism that enables him to call the Council to account if they recklessly [make] a statement which is false in a material respect  in light of the various contradictory and conflicting assertions made by the Council thus far

The words in italics are from section 47(2)(b) DPA, and relate to the potential criminal offence of recklessly making a material false statement in purported compliance with an information notice.

Finally, Medway’s conduct of the appeal itself came in for criticism: inappropriate, inconsistent and insufficient redactions were made in some materials submitted, and some evidence was sent in with no explanation of source, date or significance.

It is rare that information notices are required – most data controllers will comply willingly with an ICO investigation. It is even more rare that one is appealed, and maybe Medway’s recent experience shows why it’s not necessarily a good idea to do so. Medway may rather regret their public-spirited willingness to own up to the ICO in the first place.

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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Chris Graham and the cost of FOI tribunals

When Information Commissioner (IC) Christopher Graham speaks, people listen. And so they should: he is the statutory regulator of the Freedom of Information Act 2000 (FOIA) whose role is “to uphold information rights in the public interest”. A speech by Graham is likely be examined carefully, to see if it gives indications of future developments, and this is the reason I am slightly concerned by a particular section of his recent speech at an event in Scotland looking at ten years of the Scottish FOI Act.

The section in question dealt with his envy of his Scottish counterparts. They, he observed, have relatively greater resources, and the Scottish Information Commissioner, unlike him, has a constitutional status that bolsters her independence, but also he envied

the simple and straightforward appeals mechanism in the Scottish legislation. The Scottish Commissioner’s decision is final, subject only to an appeal to the Court of Session on a point of law.

By contrast, in England, Wales and Northern Ireland, under section 57 of FOIA, there is a right of appeal to a tribunal (the First-tier Tribunal (Information Rights)). Under section 58(2) the Tribunal may review any finding of fact by the IC – this means that the Tribunal is able to substitute its own view for that of the commissioner. In Scotland, by contrast, as Graham indicates, the commissioner’s decision is only able to be overturned if it was wrong as a matter of law.

But there is another key difference arising from the different appellate systems: an appeal to the Tribunal is free, whereas in Scotland an application to the Court of Session requires a fee to be paid (currently £202). Moreover, a court is a different creature to a tribunal: the latter aims to “adopt procedures that are less complicated and more informal” and, as Sir Andrew Leggatt noted in his key 2001 report Tribunals for Users: One System, One Service

Tribunals are intended to provide a simple, accessible system of justice where users can represent themselves

It is very much easier for a litigant to represent herself in the Information tribunal, than it would be in a court.

Clearly, the situation as it currently obtains in England, Wales and Northern Ireland – free right of appeal to a Tribunal which can take a merits view of the case – will lead to more appeals, but isn’t that rather the point? There should be a straightforward way of challenging the decisions of a regulator on access to information matters. Graham bemoans that he is “having to spend too much of my very limited resources on Tribunals and lawyers” but I could have more sympathy if it was the case that this was purely wasted expenditure – if the appeals made were futile and changed nothing – but the figures don’t bear this out. Graham says that this year there have been 179 appeals; I don’t know where his figures are from, but from a rough totting-up of the cases listed on the Tribunal’s website I calculated that there have been about 263 decisions promulgated this year, of which 42 were successful. So, very far from showing an appeal to be a futile exercise, these figures suggest that approximately 1 in 5 was successful (at least in the first instance). What is also notable though, is the small but significant number of consent orders – nine this year. A consent order will result where the parties no longer contest the proceedings, and agree on terms to conclude them. It is speculation on my part but I would be very interested to know how many of those nine orders resulted from the IC deciding on the arguments submitted that his position was no longer sustainable.

What I’m getting at is that the IC doesn’t always get things right in the first instance; therefore, a right of appeal to an independent fact-finding tribunal is a valuable one for applicants. I think it is something we should be proud of, and we should feel sorry for FOI applicants in Scotland who are forced into court litigation (and proving an error of law) in order to challenge a decision there.

Ultimately, the clue to Graham’s disapproval of the right of appeal to Tribunal lies in the words “limited resources”. I do sympathise with his position – FOI regulation is massively underfunded by the government, and I rather suspect that, with better resourcing, Graham would take a different view. But I think his speech was particularly concerning because the issue of whether there should be a fee for bringing a case in the Tribunal was previously raised by the government, in its response to post-legislative scrutiny of FOIA. Things have gone rather quiet on this since, but might Graham’s speech herald the revival of such proposals?

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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Filed under access to information, Freedom of Information, Information Commissioner, Information Tribunal

FOI disclosure of personal data: balancing of interests

In June this year I blogged about the case of AB v A Chief Constable (Rev 1) [2014] EWHC 1965 (QB). In that case, Mr Justice Cranston had held that, when determining whether personal data is being or has been processed “fairly” (pursuant to the first principle of Schedule One of the Data Protection Act 1998 (DPA))

assessing fairness involves a balancing of the interests of the data subject in non-disclosure against the public interest in disclosure [¶75]

I was surprised by this reading in of an interests balance to the first principle, and said so in my post. Better people than I disagreed, and I certainly am even less sure now than I was of the correctness of my view.

In any case, the binding authority of the High Court rather trumps my meanderings, and it is cited in a recent decision of the First-tier Tribunal (Information Rights) in support of a ruling that the London Borough of Merton Council must disclose, under the Freedom of Information Act 2000 (FOIA), an email sent to a cabinet member of that council by Stephen Hammond MP. The Tribunal, in overturning the decision of the Information Commissioner, considered the private interests of Mr Hammond, including the fact that he had objected to the disclosure, but felt that these did not carry much weight:

we do not consider anything in the requested information to be particularly private or personal and that [sic] this substantially weakens the weight of interest in nondisclosure…We accept that Mr Hammond has objected to the disclosure, which in itself carries some weight as representing his interests. However, asides from an expectation of a general principle of non-disclosure of MP correspondence, we have not been given any reason for this. We have been given very little from the Commissioner to substantiate why Members of Parliament would have an expectation that all their correspondence in relation to official work remain confidential

and balanced against these were the public interests in disclosure, including

no authority had been given for the statement [in the ICO’s decision notice] that MPs expect that all correspondence to remain confidential…[;]…withholding of the requested information was not compatible with the principles of accountability and openness, whereby MPs should subject themselves to public scrutiny, and only withhold information when the wider public interest requires it…[;]…the particular circumstances of this case [concerning parking arrangements in the applicant’s road] made any expectation of confidentiality unreasonable and strongly indicated that disclosure would be fair

The arguments weighed, said the Tribunal, strongly in favour of disclosure.

A further point fell to be considered, however: for processing of personal data to be fair and lawful (per the first data protection principle) there must be met, beyond any general considerations, a condition in Schedule Two DPA. The relevant one, condition 6(1) requires that

The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject

It has to be noted that “necessary” here in the DPA imports a human rights proportionality test and it “is not synonymous with ‘indispensable’…[but] it implies the existence of a ‘pressing social need'” (The Sunday Times v United Kingdom (1979) 2 EHRR 245). The Tribunal, in what effectively was a reiteration of the arguments about general “fairness”, accepted that the condition would be met in this case, citing the applicant’s arguments, which included the fact that

disclosure is necessary to meet the public interest in making public what Mr Hammond has said to the Council on the subject of parking in Wimbledon Village, and that as an elected MP, accountable to his constituents, disclosure of such correspondence cannot constitute unwarranted prejudice to his interests.

With the exception of certain names within the requested information, the Tribunal ordered disclosure.  Assessing “fairness” now, following Mr Justice Cranston, and not following me, clearly does involve balancing the interests of the data subject against the public interest in disclosure.

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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DCMS consulting on lower threshold for “fining” spammers

UPDATE: 08.11.14

Rich Greenhill has spotted another odd feature of this consultation. Options one and two both use the formulation “the contravention was deliberate or the person knew or ought to have known that there was a risk that the contravention would occur”, however, option three omits the words “…or ought to have known”. This is surely a typo, because if it were a deliberate omission it would effectively mean that penalties could not be imposed for negligent contraventions (only deliberate or wilful contraventions would qualify). I understand Rich has asked DCMS to clarify this, and will update as and when he hears anything.

END UPDATE

UPDATE: 04.11.14

An interesting development of this story was how many media outlets and commentators reported that the consultation was about lowering the threshold to “likely to cause annoyance, inconvenience or anxiety”, ignoring in the process that the preferred option of DCMS and ICO was for no harm threshold at all. Christopher Knight, on 11KBW’s Panopticon blog kindly amended his piece when I drew this point to his attention. He did, however observe that most of the consultation paper, and DCMS’s website, appeared predicated on the assumption that the lower-harm threshold was at issue. Today, Rich Greenhill informs us all that he has spoken to DCMS, and that their preference is indeed for a “no harm” approach: “Just spoke to DCMS: govt prefers PECR Option 3 (zero harm), its PR is *wrong*”. How very odd.

END UPDATE

The Department of Culture, Media and Sport (DCMS) has announced a consultation on lowering the threshold for the imposing of financial sanctions on those who unlawfully send electronic direct marketing. They’ve called it a “Nuisance calls consultation”, which, although they explain that it applies equally to nuisance text messages, emails etc., doesn’t adequately describe what could be an important development in electronic privacy regulation.

When, a year ago, the First-tier Tribunal (FTT) upheld the appeal by spam texter Christopher Niebel against the £300,000 monetary penalty notice (MPN) served on him by the Information Commissioner’s Office (ICO), it put the latter in an awkward position. And when the Upper Tribunal dismissed the ICO’s subsequent appeal, there was binding authority on the limits to the ICO’s power to serve MPNs for serious breaches of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). There was no dispute that, per the mechanism at section 55A of the Data Protection Act 1998 (DPA), adopted by PECR by virtue of regulation 31, Niebel’s contraventions were serious and deliberate, but what was at issue was whether they were “of a kind likely to cause substantial damage or substantial distress”. The FTT held that they were not – no substantial damage would be likely to arise and when it came to distress

the effect of the contravention is likely to be widespread irritation but not widespread distress…we cannot construct a logical likelihood of substantial distress as a result of the contravention.

When the Upper Tribunal agreed with the FTT, and the ICO’s Head of Enforcement said it had “largely [rendered] our power to issue fines for breaches of PECR involving spam texts redundant” it seemed clear that, for the time being at least, there was in effect a green light for spam texters, and, by extension, other spam electronic marketers. The DCMS consultation is in response to calls from the ICO, and others, such as the All Party Parliamentary Group (APPG) on Nuisance Calls, the Direct Marketing Association and Which for a change in the law.

The consultation proposes three options – 1) do nothing, 2) lower the threshold from “likely to cause substantial damage or substantial distress” to “likely to cause annoyance, inconvenience or anxiety”, or 3) remove the threshold altogether, so any serious and deliberate (or reckless) contravention of the PECR provisions would attract the possibility of a monetary penalty. The third option is the one favoured by DCMS and the ICO.

If either of the second or third options is ultimately enacted, this could, I feel, lead to a significant reduction in the prevalence of spam marketing. The consultation document notes that (despite the fact that the MPN was overturned on appeal) the number of unsolicited spam SMS text message sent reduced by a significant number after the Niebel MPN was served. A robust and prominent campaign of enforcement under a legislative scheme which makes it much easier to impose penalties to a maximum of £500,000, and much more difficult to appeal them, could put many spammers out of business, and discourage others. This will be subject, of course, both to the willingness and the resources of the ICO. The consultation document notes that there might be “an expectation that [MPNs] would be issued by the ICO in many more cases than its resources permit” but the ICO has said (according to the document) that it is “ready and equipped to investigate and progress a significant number of additional cases with a view to taking greater enforcement action including issuing more CMPs”.

There appears to be little resistance (as yet, at least) to the idea of lowering or removing the penalty threshold. Given that, and given the ICO’s apparent willingness to take on the spammers, we may well see a real and significant attack on the scourge. Of course, this only applies to identifiable spammers in the domestic jurisdiction – let’s hope it doesn’t just drive an increase in non-traceable, overseas spam.

 

 

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Filed under Data Protection, enforcement, Information Commissioner, Information Tribunal, marketing, monetary penalty notice, nuisance calls, PECR, spam texts, Upper Tribunal

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

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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Green light for spam texters – for now

The ICO has effectively conceded he has no current powers to issue monetary penalties on spam texters.

In June this year the Upper Tribunal dismissed the appeal by the Information Commissioner’s Office (ICO) against the quashing of a £300,000 monetary penalty notice (the MPN) served on spam texter Christopher Niebel. The MPN had been issued pursuant to the ICO’s powers under section 55A of the Data Protection Act 1998 to serve such a notice if there has been a serious contravention of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) of a kind likely to cause substantial damage or substantial distress. The Upper Tribunal held that the First-tier Tribunal had not erred in law in finding that the ICO’s relevant interpretation of “distress” was unsustainable:

the tribunal took issue with the Commissioner’s guidance as to the meaning of “distress” and, in my opinion rightly so. According to that guidance, “Distress is any injury to feelings, harm or anxiety suffered by an individual” (at paragraph [12], emphasis added). The tribunal’s conclusion was that if this “involves the proposition that it is not possible to have ‘any injury to feelings’ which falls short of ‘distress’ then, it seems to us, that the definition is at odds with common experience and with the ordinary use of English [¶60]

As the law required evidence that Niebel’s company’s sending of spam texts had been of a kind likely to cause substantial distress, and as the ICO’s evidence did not match up to this, the MPN had been rightly quashed. Implicitly, the Upper Tribunal was suggesting that further MPNs of this kind would also not be sustainable, and, explicitly, it questioned whether, if Parliament wanted to give the ICO powers to financially punish spam texters, it would require a change in the law

[a] more profitable course of action, is for the statutory test to be revisited…a statutory test that was formulated in terms of e.g. annoyance, inconvenience and/or irritation, rather than “substantial damage or substantial distress”, might well have resulted in a different outcome.

To no real surprise, since the ICO lost this appeal, no further MPNs have been issued for spam texting (some have been served for spam telephone calls). Now the ICO, in a blog post by their Head of Enforcement Steve Eckersley has effectively conceded that the result of the Niebel litigation has been to remove their powers to serve MPNs for spam texts, saying it had “largely [rendered] our power to issue fines for breaches of PECR involving spam texts redundant”. And Eckersley picks up the call for a law change, confirming that there will be a consultation later this year (whether any of this will see results this side of the general election, however, is another question).  This call echoes one made by the Information Commissioner himself, who said in February

We have just got to lower that hurdle because I think if you ask most people they would say silent calls and unsolicited spam texts are one of the great curses of the age – and if the Information Commissioner can’t protect you it’s a poor lookout.
There are, of course, other strings to the ICO bow, and Eckersley refers to some of them
we are using our existing powers to hold companies to account and to disrupt their unlawful activities….and we are obtaining undertakings from and issuing enforcement notices, effectively cease-and-desist orders, to companies that breach PECR.
This sounds good, but leaves me rather puzzled: as the ICO has confirmed to me, no enforcement notices have been served and only one undertaking obtained, against companies or individuals who have sent spam texts in breach of PECR. Enforcement notices are a strong power – breach of one is a criminal offence – and only require the ICO to consider whether the PECR contravention has caused or is likely to cause any person damage or distress, not “substantial damage or substantial distress”. This lower threshold should make it much more difficult for enforcement to be resisted. Maybe some enforcement notices are on their way? One rather hopes so, because, for the moment, it looks like spam texters have received a green light.
EDITED TO ADD:
Tim Turner points out to me that a conviction for breach of an enforcement notice is not a recordable offence it will not make its way on to the Police National Computer, and will not therefore generally result in disclosure for, e.g. employment purposes. Tim’s view, and it is a compelling one, is that for a lot of spammers the threat of a minor conviction for breach of a legal notice is not one which is likely to dissuade them from their practice.

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Filed under Data Protection, enforcement, Information Commissioner, Information Tribunal, marketing, monetary penalty notice, nuisance calls, PECR, Upper Tribunal

Wading through the rules: fairness for litigants in the Information Tribunal

Any judicial system needs to have rules to ensure effective and efficient case management: failure to do so risks delays, backlogs and, ultimately, breaches of natural justice and Article 6 Convention rights. Thus, we have the civil, the criminal, and the family procedure rules, and, within the tribunal system, the 2008 Upper Tribunal Rules, and a whole host of First-tier Tribunal Rules (the ones relating to Information Rights cases are the General Regulatory Chamber Rules 2009 (TPR)). In addition, there are Practice Notes (such as one for “Closed Material in Information Rights Cases”) and a range of forms and guidance.  There are even specific “Guidance notes for individuals representing themselves in freedom of information appeals in the general regulatory chamber of the first-tier tribunal” (which I shall call the “LiP Guidance” (with LiP meaning Litigant in Person)). (Interestingly, the only copy of this I can find online is hosted on a third party site.)

For such litigants in person, these sources of rules and guidance (and the navigating of them) are essential but complicated. A neat illustration of this point comes in a recent judgment of the Upper Tribunal on a Freedom of Information Act 2000 (FOIA) case.

In the First-tier Tribunal (FTT) a Mr Matthews had sought to appeal the Information Commissioner’s (IC) decision notice  that the Department for Business, Innovation and Skills (DBIS) didn’t hold the majority of information sought about the tendering process for the delivery of marketing workshops from Business Link West Midlands, and that what it did hold was exempt from disclosure under section 40(2) of FOIA. Mr Matthews, referring to the LiP Guidance (at paragraph 16) asked for, and expected, an oral hearing.

However, in responding to the notice of appeal, the IC applied successfully, under rule 8(2)(a) of the TPR to “strike out” one ground of appeal, and under rule 8(3)(c) to “strike out” the remainder.

Lawyers, and those who deal in this subject regularly, recognise that to “strike out” all grounds of appeal means the appeal is no more. But others might sympathise with Mr Matthews, who did not have any help on this matter from the LiP Guidance, and who, when asked by the Upper Tribunal judge, explained that what he had thought it meant was

that the way in which he had written his grounds out may be stuck through or altered, or sent back to him to change, but that the appeal itself would continue

So, we have Mr Matthews, still expecting an appeal with a hearing, but getting neither.

But was he entitled to a hearing, not of his substantive appeal, but to determine whether his appeal should be struck out? This was what was, in the main, at issue in the Upper Tribunal.

Rule 32(3) of the TPR says that the general rule that the FTT must hold a hearing before disposing of an appeal need not apply when deciding whether to strike out a party’s case. It does not preclude a hearing, though, but, rather, leaves it to the FTT’s discretion. In this instance the Upper Tribunal judge decided that the FTT erred in law in not exercising its discretion to hold a hearing and, alternatively or additionally, for failing to give any reasons for not holding a hearing.

Accordingly, the case is remitted to the FTT for it to hold an oral hearing of the strike-out application.

This might seem a very convoluted and unimportant judgment, but it shows the Upper Tribunal is alive to the difficulties faced by lay self-represented litigants in what should be more of an inquisitorial, rather than adversial, system. And it shows, as have other cases before it (see for instance Dransfield v IC & Devon Council, and IICUS v IC & BIS & Ray) that the Upper Tribunal is not unwilling to remit cases to the FTT on grounds of procedural unfairness.

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Filed under Freedom of Information, Information Commissioner, Information Tribunal, Upper Tribunal

ICO’s power to refuse to decide cases is rarely used

The “filter” of section 50(2)(c) of the FOI Act allows the Information Commissioner to refuse to make a decision on frivolous or vexatious applications. It is rarely used. What an exciting intro to a blog post eh?

The First-tier Tribunal (Information Rights) (FTT), recently refused an application by Leeds City Council for an award of costs against a requester whose requests had been held by the Information Commissioner (IC), and the FTT itself, as vexatious under section 14(1) of the Freedom of Information Act 2000 (FOIA). Alistair Sloan has blogged about the decision itself, and I would commend his piece to readers, but an observation by the judge led me make an FOI request of my own.

After noting that

it must be possible, depending on the circumstances, for the maker of a request regarded by everyone else as vexatious, to defend his or her position on that point without automatically being treated under the costs Rules as behaving unreasonably

the judge adverted to section 50(2)(c) of FOIA. This permits to IC to not make a decision whether a public authority has complied with its FOIA obligations if the application for the decision is itself “frivolous or vexatious”. (This must be distinguished from a decision as to whether the original FOI request to the public authority was, pursuant to section 14(1), vexatious). It gives the IC an exception to the general requirement to make a formal decision on all cases where the applicant asks for one. The judge said

it is right to remember the protections which already exist for public authorities in the context of vexatious requests or hopeless appeals. Before a right of appeal is even a gleam in the Tribunal’s eye, there must be a complaint to the Information Commissioner (ICO). If the complaint to the ICO appears to be “frivolous or vexatious,” then there is no need for him even to make any decision appealable to the Tribunal. See Section 50(2) FIA

but then went on to note that he was

not aware of any published information about the extent to which the ICO makes use of this important provision.

 Ever keen to help our judiciary, I asked the IC, via What Do They Know. With admirable promptness they disclosed to me that, in the years for which records are retained (2007 onwards), the IC has declined to serve a decision notice because he considers the application vexatious or frivolous only 18 times (which breaks down into 16 frivolous and 2 vexatious).

Clearly, the IC considers this exceptional power to be just that – one that should be used only in exceptional cases, and maybe its use in 0.3% of cases accords with that. But in my research for this piece I did dig up again the IC’s submission to the Justice Committee for the latter’s 2012 post-legislative scrutiny of FOIA, and I noticed that there was this comment

For some reason Parliament made a distinction between this provision [section 50(2)(c)] and that in section 14(1) applying to requests to public authorities.

This strikes me as odd. It is quite clear that there is an important distinction between a vexatious request to a public authority and a frivolous or vexatious application for a decision. A requester could make a request to a public authority which was not in any way vexatious, yet choose to pursue the matter by applying for a decision in a way that made that application frivolous or vexatious. And it seems to me that this was what Judge Warren in the FTT was alluding to, and why it would be highly unusual – and potentially oppressive – to award costs against someone appealing a refusal of a vexatious request. Rule 10(1)(b) of the relevant tribunal rules does allow for the award of costs for unreasonably bringing (as opposed to conducting) the proceedings, but the availability of the filter of section 50(2)(c) FOIA should mean that it would be extraordinarily unusual for such an award ever to be made.

A final observation from me. The wording of section 50(2)(c) seems to make it clear that, as the IC would make no decision in a case where the application is frivolous or vexatious, then no possible right of appeal to the FTT could exist (and, therefore, judicial review would be the only legal remedy available). This would be in contrast to cases such as Sugar and (currently at case management stage in the Upper Tribunal) Cross v IC  where what is at issue is whether a decision by the IC that an organisation is not a public authority for the purposes of FOIA constitutes an appealable “decision”.

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Filed under Freedom of Information, Information Commissioner, Information Tribunal, judiciary, vexatiousness