Category Archives: Information Tribunal

July 18, 2024 · 4:21 am

FOIA appeals in the UT: when is there an “error of law”?

Here is a good and interesting judgment in the Upper Tribunal from Judge Citron, on a Freedom of Information Act 2000 (FOIA) case arising from defects in the 2019 “11+” exam run by The Buckinghamshire Grammar Schools (TBGS), with test materials designed and supplied by a third party – GL Assessment Limited. TBGS, as a limited company made up of a consortium of state schools, is a public authority under s6(1)(b) FOIA (by way of s6(2)(b)).

The FOI request was, in broad terms, for the analysis that had subsequently been conducted into the defects, and the statistical solution that had been adopted.

TBGS had refused the request on grounds including that disclosure of the requested information would be an actionable breach of confidence. The ICO upheld this, and, on appeal, the First-tier Tribunal agreed, although only by a majority decision (the dissent was on the part of the judge, and it’s worth reading his reasons, at 85-90 of the FTT judgment).

Possibly bolstered by the vehemence of that dissenting view of the FTT judge, the applicant appealed to the Upper Tribunal.

Judge Citron’s judgment is a measured one, addressing how an appellate court should approach an argument to the effect that there was an error of law at first instance, with a run-through, at 35, of the authorities (unfortunately, from that point, the paragraph numbering goes awry, because the judgment, at “67”, follows the numbering of the judgment it has just quoted).

Judge Citron twice notes that a different FTT might have approached the facts and the evidence in a different way, and weighted them differently, but

that is no indicator of the evaluative judgement reached being in error of law…The question is whether the evaluative judgement…was one no reasonable tribunal could have reached on the evidence before it; it whether some material factor was not taken into account. I am not persuaded.

Therefore, the FTT had made no material error in dismissing the appeal.

A final note. This was a judgment on the papers, but – remember – the Information Commissioner will always be a party to FOIA cases, because it is his decision that is at issue. In this instance, the Commissioner chose not to participate. Paragraph 32 records that he was “directed” to make a response to the appeal, but did not. If this correctly records a failure by the Commissioner to comply with a direction of the court, it is surprising there’s no note of disapproval from the judge.

The views in this post (and indeed most 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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July 12, 2024 · 7:05 am

Unreasonably accessible – ICO and misapplication of s21?

I’ll start with a simple proposition: if a dataset is made publicly available online by a public authority, but some information on it is withheld – by a deliberate decision – from publication, then the total dataset is not reasonably accessible to someone making an FOI request for information from it.

I doubt that any FOI practitioners or lawyers would disagree.

Well, sit back and let me tell you a story.

In November 2023 the Information Commissioner’s Office (ICO) refused to disclose information in response to a Freedom of Information request, on the grounds that the exemption at section 21 of the Freedom of Information Act 2000 (FOIA) applied: the information was “reasonably accessible to the applicant” without his needing to make a FOIA request.

The request was, in essence, for “a list…of the names of all the UK parish councils that have received 20 or more ICO Decision Notices (for FOIA cases only) since 1st January 2014”. The refusal by the ICO was on the basis that

the search function on the decision notice section of the ICO website returned 415 decision notices falling within the scope of the complainant’s request…[therefore] it is possible to place the names of the parish councils into an Excel sheet and then establish quickly how many decision notices relate to each individual parish council.

The ICO noted that, when it comes to the application of section 21

It is reasonable for a public authority to assume that information is reasonably accessible to the applicant as a member of the general public until it becomes aware of any particular circumstances or evidence to the contrary [emphasis added]

On appeal to the Information Tribunal, the ICO maintained reliance on the exemption, saying that all the applicant needed to do was to go to the ICO website and “look at each entry and count-up [sic] the numbers of [Decision Notices] against each parish council”. The Tribunal agreed: the ICO had provided the requester

with a link to the correct page of the ICO website, and instructing him how to use the search function. These instructions have enabled him to identify from the tens of thousands of published decision notices those 415-420 notices which have been issued to parish councils over the past decade or so

All straightforward, if one’s analysis is predicated on an assumption that the ICO’s public Decision Notice database is a complete record of all decision notices.

But it isn’t.

I made an FOI request of my own to the ICO; for how many Decision Notices do not appear on the database. And the answer is 45. A number of possible reasons are given (such as that sensitive information was involved, or that there was agreement by the parties not to publish). But the point is stark: the Decision Notice database is not a complete record of all Decision Notices issued. And I do not see how it is possible for the ICO to rely on section 21 FOIA in circumstances like those in this case. It is plainly the case that the ICO knew (or was likely reckless in not knowing) that there were “particular circumstances or evidence” which showed that the information could not have been reasonably accessible to the applicant.

Of course, it is quite likely (perhaps inevitable) that the 45 unpublished Decision Notices would make no difference at all to a calculation of how many UK parish councils have received 20 or more Decision Notices since 1st January 2014. But that really isn’t the point. The ICO could have come clean – could have done the search itself and added in the 45 unpublished notices. It knew they existed, but for some reason thought it didn’t matter.

The ICO is the regulator of FOIA, as well as being a public authority itself under FOIA. It has to get these things right. Otherwise, why should any other public authority feel the need to comply?

The views in this post (and indeed most 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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July 6, 2024 · 10:45 am

FOI and government/ministerial WhatsApps

[reposted from LinkedIn]

An important Information Tribunal (T) judgment on a FOIA request, by Times journalist George Greenwood, to DHSC for gov-related correspondence between Matt Hancock (MH) and Gina Coladangelo (GC), grappling with issues regarding modern messaging methods in government and how they fit into the FOIA scheme.

Two requests were made. The first was for government-related correspondence between MH and GC using departmental email accounts, and any private email account MH had used for government business. The second was for all correspondence between them using other methods, such as WhatsApp.

Request 1

DHSC had found four emails and by the time of the hearing had disclosed them. It maintained that no further info was held.

However DHSC argued that emails sent by MH’s private secretaries and not by MH himself were out of scope. Not so, said the T: “even if a private office email account is operated by a private secretary…correspondence with a private office email account ought to be regarded as correspondence with the relevant minister”. Accordingly, they upheld that part of the appeal and ordered further searches.

Request 2

DHSC had initially said, and ICO had agreed(!), that government-related WhatsApp messages sent from MH’s personal device were not “held” for the purposes of FOIA because they were not held “as part of the official record”. By the time of the hearing, all of the parties were agreed that this was an error, and the T ruled that section 3(2)(b) FOIA applied, and that “WhatsApp messages from Mr Hancock’s personal device were held [by MH] on a computer system on [DHSC’s] behalf”.

DHSC then sought to argue that WhatsApp messages in a group were not “correspondence” between MH and GC, saying (in the T’s formulation of DHSC’s argument) “unless correspondence consists of one person corresponding directly with another, it is not ‘true’ correspondence”. The T was dismissive of this: “correspondence in the age of multiple methods of electronic communication can take different forms…the fact that simply because one or other of the relevant parties did not respond or may not have responded to a particular message does not mean that communications within a WhatsApp group cannot be considered to be correspondence”. The T also rejected the related submission that a person posting a message to a WhatsApp group is “broadcasting”, rather than “corresponding”

(I have to say that I think the T probably overstepped here. I would tend to think that whether information in a WhatsApp group is correspondence or not should be determined on the facts, and not as a matter of general principle.)

Finally, the T did not warm to the evidence from an otherwise unidentified “Mr Harris” for the DHSC, to the effect that the request was vexatious on grounds of the burden. They therefore held that it was not. (As the messages were subsequently disclosed into the public domain during the Covid inquiry, not much turns on this.)

The views in this post (and indeed most 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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March 9, 2024 · 11:02 am

A sad procedural judgment

In 1973, Pat Campbell, a Catholic factory worker from Banbridge, Northern Ireland, was shot and killed in front of his wife and children, at their family home.

No one was ever convicted of Pat Campbell’s murder, but for many years it has been believed that the killer was senior Ulster Volunteer Force member Robin “The Jackal” Jackson. Jackson – suspected of being responsible for, but never convicted of, at least 50 killings during the Troubles – was also suspected of having links with British military intelligence agencies.

In 2022 Pat Campbell’s widow reached a settlement with the Police Service of Northern Ireland, or PSNI (successor to the Royal Ulster Constabulary, or RUC) of a civil claim for damages, in which she alleged negligence and misfeasance in public office. The BBC reported at the time that “a former RUC officer and two ex-military intelligence officers were set to give evidence about Jackson’s alleged role”.

In the same year as Pat Campbell was murdered, a British intelligence officer wrote a report which is understood to have proposed increasing the RUC’s special branch’s intelligence gathers capabilities.

In 2021 journalist Phil Miller took a case under the Freedom of Information Act 2000 (FOIA) to the Information Tribunal, seeking disclosure by the PSNI of the Morton Report. However, the Tribunal upheld the Information Commissioner’s decision that PSNI were entitled to withhold the report because of the FOIA absolute exemption in relation to information supplied to a public authority by the Security Service.

Mrs Campbell, herself, however, still sought to get hold of the Morton Report. I know this because of a sad procedural judgment from the Information Tribunal.

She is identified as the appellant in case EA/2023/0276, an appeal from ICO decision notice IC-173342-D4D8. But as the judgment explains, she has since died, and the Tribunal has accordingly struck out the proceedings, under rule 8(2) of the procedure Rules, for want of jurisdiction. This is because, although The Law Reform (Miscellaneous Provisions) Act 1934 permits a “cause of action” to proceed after a claimant has died, for the benefit of the deceased’s estate, the Tribunal held, applying the same approach the Upper Tribunal took in a previous case in relation to data protection rights, a FOIA appeal is not a “cause of action” (Letang v Cooper [1965] 1 QB 232 applied). Instead, “‘[the] procedure is no more than a statutory appeal route, a procedural mechanism, for challenging’, in this case, the issue of the decision notice by the Information Commissioner”.

It seems doubtful, in any case, that Mrs Campbell would have succeeded: the exemption at section 23 is effectively insuperable.

But, of course, the PSNI has discretion to disclose information. As the ICO’s decision notice notes, the PSNI previously decided to disclose a redacted version of the 1980 Walker Report on RUC Special Branch informant handling, after the Committee on Administration of Justice took another FOIA case to the Information Tribunal.

There is no reason to suggest the same would happen if another case involving a request for the Morton Report reached the Tribunal again, but someone might consider it worth trying.

The views in this post (and indeed most 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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February 9, 2024 · 8:39 am

When is a breach of FOIA not a breach of FOIA?

I posted about this originally on LinkedIn, but I found it so nerdily interesting I wanted to preserve it better by putting it on this blog.

In 4 December 2023 the Information Commissioner’s Office (ICO) issued a decision notice under section 50 of the Freedom of Information Act 2000 (FOIA) finding that its own office did not deal with a FOIA request within the statutory time limit. Subsequently, however, as the ICO website has it, “Following a review of this case it has been noted that the Commissioner erred in citing a breach of section 17(1) of FOIA, having omitted to include the Scottish bank holiday of 7 August 2023 in his calculation of the 20 working day deadline. Therefore, the ICO did not breach section 17(1) of FOIA.”

However, merely staring on its website that “the ICO did not breach FOIA” is not sufficient. As a matter of law, the decision notice itself stands, unless it is substituted by another notice made by the Information Tribunal upon appeal. The ICO cannot withdraw/amend a decision notice, in the absence of an appeal (under the doctrine of “functus officio”, but see also IC v Bell [2014] UKUT 0106)).

So merely saying on its website “we didn’t breach the time limits” cannot cancel or overturn the decision notice.

In some analogous circumstances of “wrong” legal decisions by public authorities bound by functus officio, the authority will consent to judicial review proceedings quashing the decision. But here, the only person with any interest in quashing the decision is the ICO itself, and I don’t believe it could apply for judicial review of its own decision (although there have been cases, I believe, where local authorities have judicially reviewed decisions of their own planning committees).

What the ICO could have done though (and I give a nod to Ganesh Sittampalam here) is appeal the decision itself to the Tribunal. It would seem to be the case that the ICO, as the public authority on whom the decision notice was served, would have had a right of appeal to the Tribunal, even though it would be both the appellant and the respondent. This would, obviously, be rather an odd situation, but it’s one that the ICO already faces when it has to rule (as it did here) on its own compliance with the laws it regulates and enforces (for these purposes it effectively creates a fictional divide between “the ICO” and the “Commissioner” – see for example paragraph four in the decision notice linked above).

However, for whatever reason, the right of appeal was not exercised. But, given that that was the statutory route for challenge, why was the purported correction of the error instead subject to an internal, non-binding and unsatisfactory “review” within the ICO?

One wonders how this will be recorded within the ICO’s datasets: will the ICO accept the point that, as a matter of law, the decision is and remains that it breached the time limits? I doubt it.

The views in this post (and indeed most 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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November 17, 2023 · 6:35 am

EIR you sure you got that right?

Someone said they’d read this post if I wrote it. That’s miles more encouragement than I normally need, so here goes.

The other day, Tim Turner’s FOIDaily account pointed out how, after twenty-odd years, some public authorities still fail to identify when a request for information should be dealt with under the Environmental Information Regulations 2004 (EIR), rather than the Freedom of Information Act 2000 (FOIA). An example was given of Information Commissioner’s Office (ICO) identifying where a public authority had got this wrong.

As any fule kno, the two laws operate in parallel to create a regime for access to information held by public authorities, and it’s Regime 101 for a public authority to be able to know, and identify, when each applies. But, in short, if requested information is on, for instance, “measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect…the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape…” then the EIR, and not FOIA, apply.

I pointed out in the comments to the FOIDaily post that I’d seen a case where everyone, from the requester, to the public authority, to the ICO, to the First-tier Tribunal, had failed to deal with a case under the correct scheme.

This was it.

The case was about a request to a district council for information about whether a councillor had (in a private capacity) been required to pay any money to the council in relation to a fly-tipping incident or incidents. The request itself even referred to the Environmental Protection Act 1990, which was a very big hint that environmental information might be at issue.

What appears to have happened is that everyone jumped to the issue of whether disclosure of the requested information would contravene the councillor’s data protection rights. As most similar discussions take place in relation to the provisions of section 40 FOIA, the public authority, the ICO and the Tribunal (and presumably even the requester) all appear to have gravitated towards FOIA, without asking the correct first question: what is the applicable law? The answer to which was, clearly, EIR.

Regulation 13 of the EIR deals with personal data, and is cast in very similar terms to section 40 FOIA. It is, then, strongly arguable that, given that similarity, both the ICO and the Tribunal would have arrived at the same decision whichever regime applied. But Parliament has chosen to have two separate laws, and this is because they have a different genesis (EIR emanate from EU law which in turn emanates from international treaty obligations). Additionally, where all things are otherwise equal, the EIR contain an express presumption in favour of disclosure (something that is not the case in relation to personal data under the FOIA regime – see Lord Hope’s opinion in Common Services Agency v Scottish Information Commissioner).

As Tim implies in his post, the EIR have always been seen as somehow inferior, or subservient, to FOIA. No doubt this is because they are in the form of secondary legislation, rather than statute. This is more an accident of history, rather than of constitutional significance, and is never going to be relevant in most practice. But if the ICO and the courts continue to miss their relevance, it shouldn’t be that surprising that some public authorities will also do so.

The views in this post (and indeed most 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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April 12, 2022 · 1:06 pm

Lots of FOI contempt applications in the wings

A new piece on the Mishcon de Reya site: the First-tier Tribunal is dealing with at least eight applications to certify contempt of court for failure by public authorities to comply with decision notices.

FOI enforcement starts to get serious?

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April 7, 2022 · 4:45 pm

First ever FOI contempt certification

I’ve written a piece on the Mishcon de Reya website on the first ever case of certification of contempt of court to the High Court, for failure to comply with a decision notice.

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September 24, 2021 · 9:41 am

What John Edwards will inherit

The new Information Commissioner will have a lot on his plate. I’m going to focus very briefly on what is, objectively, a very small matter but which, to me, illustrates much about priorities within the ICO.

On 29 July I happened to notice an Information Tribunal decision which I thought was slightly odd, in that apparently both the Tribunal, and the Commissioner beforehand, had dealt with it under the Freedom of Information Act 2000 rather than the Environmental Information Regulations 2004, despite the subject matter (a tree inspection report) appearing to fall squarely under the latter’s ambit.

However, the decision notice appealed (referred to as FS5081345 in the Tribunal judgment), does not appear on the ICO’s searchable online database (in fact, no decisions relating to the public authority – the mighty Great Wyrley Parish Council – are listed). It’s unusual but certainly not unheard of for decision notices not to get uploaded (either by overlook, or – occasionally – for other, legal reasons) but in the past when I’ve asked for one of these, informally, it’s been provided by return.

So I used the ICO’s online Chat function to ask for a copy of the decision notice. However, I was told I had to submit a request in writing (of course I’d already done so – the Chat function is in writing, after all, but let’s not quibble). I said I was concerned that what was a simple request would get sucked up into the ICO’s own FOI processes, but the person on the Chat thought I would get a response within a couple of days.

Those who’ve stayed this far into the blogpost will be unsurprised to hear what happened next – my simple request got sucked into the ICO’s own FOI processes, and more than seven weeks on (more than three weeks beyond the statutory timescale for responding) I have still had no response, and no indication of why not, other than the pressure the FOI team is under.

And that last point is key: if the ICO’s own FOI caseworkers are under such pressure that they cannot deal with a very simple request within the legal timescale, nor update me in any meaningful way as to why, something has surely gone wrong.

At a recent NADPO webinar Dr Neil Bhatia spoke about his own difficulties with getting information out of the ICO through FOI. He (and I) were challenged by one of the other speakers on why we didn’t more regularly take formal action to force the issue. It was a fair point, and prompted me yesterday to ask the ICO for a formal decision under section 50 of the FOI Act (which means the ICO will have to issue an FOI decision notice on whether the ICO handled an FOI request for an FOI request in accordance with the law – and that sentence itself illustrates the ridiculousness of the situation).

This isn’t the only FOI request I have that the ICO is late responding to. I have one going back to May this year and another to June (albeit on rather more complex subjects). And I know that I and Dr Bhatia are not alone.

All the fine talk from the current Commissioner about forging international data protection accords, and encouraging “data driven innovation” can’t prevent a perception that her office seems increasingly to have left FOI regulation (and in some cases its own FOI compliance) behind. The right to access information is (part of) a fundamental right (just as is the right to data protection). If the ICO doesn’t want the role, is it time for a separate FOI Commissioner?

The views in this post (and indeed most 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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January 30, 2021 · 7:33 am

FOI – there’s no (jurisdictional) limits

Practitioners tend to have a few mantras about the Freedom of Information Act 2000 (FOIA). Some of those mantras admit of exceptions (“it’s requester and motive blind” may, for instance, fall away where the wider context of the request needs to be considered in “vexatious” cases) but the mantra that “anyone, anywhere can make a request” had never been seriously challenged, until recently.

In conjoined cases, the First tier Tribunal – apparently, one understands, of its own volition – had raised an issue as to whether FOIA did indeed have extra-territorial application – contrary to the standard approach to statutory construction whereby UK legislation applies only to those who are citizens of the UK, or on its territory – such that requests could be made by anyone, anywhere in the world.

If the Tribunal had decided that the standard approach applied, and no extra-territorial effect was in place, there would have been a significant diminution of rights, and a consequent diminution in the accountability of public authorities. More practically, we would have no doubt seen, at least from some public authorities, identity verification measures being directed at requesters.

Thankfully, the Tribunal decided that there was extra-territorial effect, in a decision handed down orally on 27 January (with written reasons to follow).

There are posts about the case(s) on both Cornerstone Barristers’ and Doughty Street’s websites.

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