Category Archives: Information Tribunal

February 26, 2013 · 2:57 pm

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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January 25, 2013 · 2:41 pm

Public Interest in Empty Buildings

Does the public interest favour publishing lists of vacant properties? No, says the First-tier tribunal. Yes, suggests the launch of the government website “Find Me Some Government Space”.

On 22 January the First-tier tribunal (FTT) handed down judgment in the remitted case of Voyias v IC and Camden Council. Those looking for intelligent insights into the case, and the reasons why it was originally appealed to the Upper Tribunal, and then sent back to the FTT should read the excellent series of posts on the Panopticon blog. I’m here to make a much blunter observation: at the same time a local authority is strongly resisting publishing details of vacant properties, the government appears to be actively promoting similar publication.

At issue  in the FTT was whether the Council should disclose, under the Freedom of Information Act 2000 (FOIA), addresses of vacant properties in its area. The information had been withheld on the basis of the FOIA exemption at section 31(1)(a)

disclosure…would, or would be likely to, prejudice…the prevention or detection of crime

The FTT had little difficulty (having been bound by the Upper Tribunal to consider indirect consequences of disclosure on the prevention of crime) in finding the exemption was engaged, holding that

releasing the requested information would increase squatting and that there would be an increase in the instances of various types of criminal activity directly connected to it*

When it came to the balance of public interest factors (section 31 being a qualified FOIA exemption) the only real factor pleaded in favour of disclosure was

The need to ensure that the Council takes appropriate measures to bring empty property back into use

And the FTT, at paragraph 55, afforded it “relatively small weight”.

Against disclosure were the following (not all of them accepted by the FTT, it should be said)

The inherent public interest in the prevention of all crimes…; The cost of securing properties vulnerable to squatting and repairing damage resulting from it, whether that cost falls on the private or public purse; The cost of evicting squatters; The potential detrimental impact on those directly affected by criminal damage; The impact on the community in the vicinity of a squatted property; The problems faced by Council staff having to deal with squatting and its consequences; The impact on police resources; The direct financial cost caused by property stripping.

Fine. FTT found the exemption engaged and that the public interest favoured non-disclosure of empty, unused properties. As John Murray has pointed out to me, this is somewhat surprising given that it also appears that many other local authorities have had little concern about disclosing similar information.

And one wonders why, if such prejudice would or would clearly be likely to arise, the government two days later launched  a website called Find Me Some Government Space. Launching it Chloe Smith, Minister for Political and Constitutional Reform, (what a grand title) said

…we will have a number of properties both owned and rented that we need to do more with. Not only will this website help to save government money but we will see new opportunities, jobs and growth in local economies as new life is brought into empty, unused properties. [emphasis added, naturally]

These sentiments were, oddly, not reflected by the then Housing Minister Grant Shapps, when the initial FTT ruling was made.He said it was a “bizarre decision that flies in the face of common sense” and that publishing details of empty properties “in other areas has led to the numbers of squats doubling”.

Now – and I concede they are not residential – within seconds, using “Find Me Some Government Space”, I’d found a list of 30 properties for sale within a 20km radius of Camden Council’s offices. It’s not clear if they’re currently empty and unused, but the words of the Minister imply that those are the sort of buildings which will be on “Find Me Some Government Space”. Moreover, as the government clearly thinks bringing new life into empty, unused properties is connected to the creation of jobs and economic growth, will they be encouraging councils to disclose the very type of information this Council sought so hard to avoid disclosing?

*At the time of the request, squatting in residential properties was not a criminal offence, something that has now changed with the enactment of section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act.

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September 29, 2012 · 9:04 am

Private emails, FOI and Criminality

Private emails are subject to FOI searches, and it’s a crime intentionally to conceal relevant information.

So, it appears that the Department of Education (DfE) has conceded that business emails sent by private email accounts are subject to the Freedom of Information Act 2000 (FOIA), thus accepting what the right-thinking world, and, indeed, anyone with a glimmer of common sense knew all along.

Plaudits, or brickbats, according to your position on the merits of FOIA, should go to Christopher Cook of the Financial Times, who has pursued the Department of Education (DfE) on this with the enthusiasm of a Jack Russell terrier faced with a scurrying rat. Fellow hacks at the Independent had also joined themselves to the proceedings listed (but now withdrawn) in the First-tier Tribunal (Information Rights). The DfE had had the balls to launch a challenge to a previous decision by the Information Commissioner (ICO) that the information (held in private email accounts) requested by Chris should be released. The decision notice itself was clear, and difficult to argue with, as is the advice on the subject published by the ICO around the same time. One wondered what possible grounds the DfE had to base a successful appeal on, and the withdrawal of the appeal probably answers that point, although it appears the withdrawal was actually prompted by the imminent publication of Cabinet Office guidance.

Some are now predicting that there will be a deluge of FOI requests specifically targeted at information held in private emails, or text messages, and I think this is probably right. What is not clear is how they will be handled. The ICO’s guidance suggests that, faced with requests for information that could be held in private emails, public authorities should restrict themselves to asking the person to search their account and keeping a record to show that this was asked:

The public authority will then be able to demonstrate, if required, that appropriate searches have been made in relation to a particular request. The Commissioner may need to see this in the event of a…complaint

This suggests that, when investigating a complaint about refusal to disclose information, the ICO will restrict himself merely to satisfying himself that an authority has asked its staff to check emails. Absent any evidence that those staff have not been honest about the contents of those private emails, the ICO will take no further action. The reasons for this are, really, quite obvious: the powers open to a public authority to access private email accounts are limited. Although the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 allow an employer to “intercept” an employee’s private emails  (if sent using the employer’s systems) to determine whether they are business-related, those powers must be exercised with due regard to the employee’s privacy rights. The interception of private emails in a private email account (sent using the employer’s systems) must be necessary and proportionate. If an employee has told his or employer that their private emails contain no information caught by an FOI request it is doubtful, absent any evidence to the contrary, that a “trawl” of emails without the employee’s consent would be lawful (I’ve written for PDP journals on this subject – subscription needed).

On one view, then, nothing much has changed with the concession by the DfE, although no doubt many new FOI requests will be made as a result. What has changed, perhaps, is the focus on individuals’ personal responsiblity under FOIA. Currently, section 77 creates an offence if a person alters, defaces, blocks, erases, destroys or conceals a record in response to an FOI request. If a trawl of emails on a public authority’s systems is required this will normally fall to IT, or similar, and employees have little say – or, if you like, given the existence of back-up systems – limited opportunity to commit a section 77 offence. Now, if the same employee is asked whether private emails contain specific information, and he or she untruthfully says “no”, criminality – the mens rea – will be relatively easy to make out.

The question is, how would we find out?

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August 2, 2012 · 8:33 am

The Bludgeoning of the Decision Notice

With the latest ministerial veto, is a quaint British tradition emerging?

So, the Attorney General has exercised his powers of veto under section 53 of the Freedom of Information Act 2000 (FOIA) for the third time this year. The only one of his predecessors to use the veto – Jack Straw – only managed to use it twice in one year, so Mr Grieve must now be considered champion at wielding this most blunt of legislative instruments.

Section 53 allows an accountable person (who can be any member of the Cabinet but who, by what appears to be a convention in making, has always thus far been the Attorney General) to issue a certificate to the Information Commissioner (ICO) telling him, in effect, that he got it wrong when ordering disclosure of information under FOIA.

The target of this week’s veto was, for the second time, an ICO decision that Cabinet minutes from March 2003 relating to the decision to go to war in Iraq, and to the then Attorney General’s legal advice regarding the military action, should be disclosed by the Cabinet Office. This decision notice, issued only on 4 July this year was in very similar terms to one issued by the ICO in February 2008, which was the subject of a Straw veto in February 2009, although only after the decision in favour of disclosure had been upheld by the Information Tribunal.

Much has been written about the potentially illiberal nature of the section 53 power – which seems to be a possibly unique example in statute of an executive override over the judiciary. It is ironic that some former and current government figures have argued so strongly for Cabinet minutes to be totally exempt from FOIA disclosure, when the veto can be wielded so easily and decisively (although they would no doubt counter-argue that it is only being used so often because of the lack of a class exemption applying to such information). Indeed, the Justice Committee, in its recent report as part of the post-legislative scrutiny of FOIA, said

we remind everyone involved in both using and determining that space that the Act was intended to protect high-level policy discussions…We also recognise that the realities of Government mean that the ministerial veto will have to be used from time to time to protect that space

There is no bar on someone requesting the same information again from the Cabinet Office, nor any mechanism to allow the ICO not to keep issuing decision notices in favour of disclosure. Given this (and given the words of the Justice Committee) perhaps we are seeing the beginnings of a quaint British tradition, like The Dragging of the Speaker of the Commons or The Searching of the Cellars. I shall call it The Bludgeoning of the Decision Notice.

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May 23, 2012 · 8:54 am

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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