Category Archives: journalism

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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July 3, 2024 · 8:05 pm

Data protection v Defamation

[Sometimes I will upload posts I make on LinkedIn to this blog, because they’re easier to archive here: however they’re a bit more “conversational” than usual]

Can (or in what circumstances can) a data protection claim be brought on the basis that processing involves harm to reputation of a sort which, more orthodoxically*, would be brought in defamation?

His Honour Justice Parkes has refused an application by Dow Jones to strike out a data protection erasure claim (with an associated compensation claim) on the grounds that in reality it is a “statute-barred defamation complaint dressed up as a claim in data protection, and brought in data protection to avoid the rules which apply to defamation claims” (the application was also on Jameel grounds).

The judge says he “cannot see how [the claimants] can be summarily denied access to the court to make [their] case, employing a cause of action which is legitimately open to them… simply because in the past they have repeatedly threatened to claim in defamation, or because the claim is heavily based (as it is) on considerations of harm to reputation, or because, had they brought the claim in defamation, it would have faced very difficult obstacles”.

HHJ Parkes notably (ie this needs to go to trial) says that “the state of the law on the recoverability of damages for injury to reputation in non-defamation claims is uncertain and in flux” and that it is “unsuitable for determination on a summary application and probably requires the attention of an appellate court”.

It will be very interesting if this now makes it to trial. But never hold your breath on that folks.

[*yes, I did intend to coin the most awkward adverb possible]

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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June 9, 2024 · 7:31 am

Drones and freedom of expression

Article 10 of the European Convention on Human Rights provides that everyone has the (qualified) right to freedom of expression, which includes the freedom to receive and impart information. And section 12(4) of the Human Rights Act 1998 requires a court: i) to have regard to the importance of freedom of expression, when considering whether to grant any relief which, if granted, might affect the exercise of the right to freedom of expression, and ii) where the proceedings relate to material which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to have regard to the extent to which the material has, or is about to, become available to the public, or the extent to which it is, or would be, in the public interest for the material to be published.

In a recent case in the High Court – sitting in Manchester – an application for an interim injunction was granted against one named and a number of unknown respondents preventing them from entering the site of the former St Joseph’s seminary in Up Holland, but also preventing the flying of drones over the site. There is already a large amount of footage taken previously by such drones on the various online video-sharing sites, and some of them are fascinating and informative. The future of the site is evidently a matter of significant local interest.

The concerns of the applicants for the injunction are compelling: there have been numerous incidents of trespass on the site, and it is in a very dangerous condition.

The only published judgment I have been able to find is on the website of the chambers of the barrister representing the applicant. It appears to be a transcript of an ex tempore judgment. The judge notes that section 76 of the Civil Aviation Act 1982 provides that

No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable

A piece on the website of the solicitors acting for the applicants indicates that the judge proceeded on the assumption that section 76 applied to drones and that the drone operator had complied with the requirements of the Air Navigation Order 2016. He then said that either i) section 76 did not apply, because the flight involved the taking of footage for its presumed purpose of encouraging trespass (and presumably therefore it was not “by reason of the flight only” for section 76 purposes), or, ii) if section 76 did apply, then the height of the drones could not be reasonable, because of the taking of the footage.

However, nowhere in the judgment is there any indication that the judge has had regard to the court’s duties under section 12 of the Human Rights Act. It strikes me that there are clear freedom of expression issues raised. A large number of people are interested in general in abandoned buildings, and there is an enormous amount of online attention to this subject, and, more locally, there is clearly notable interest in the fate of a grade 2 listed building: the drone footage must, surely, play a part in meeting this public interest.

So it strikes me that it was incumbent on the court to conduct the balancing exercise inherent in Article 10, which provides that the exercise of freedom of expression may be

subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime [and] for the protection of health…

The respondents in this case did not attend the hearing but the judge was satisfied that notice had been given to them (although the judgment does not explain how notice was given to the persons unknown). Perhaps, though, if they had attended, and been represented, their counsel might have drawn the court’s attention to its section 12 duty.

In a letter to The Times in 1987 (quoted here), Lord Scarman deprecated a decision of the House of Lords, and commented that

their Lordships have, with great respect, overlooked the more fundamental law providing the right of the public to access to information … and the public right of free speech…Old ingrained habits die hard. We are not yet able to abandon the traditional emphasis of our law on private rights …

Might he have found himself writing a similar letter today?

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 7, 2022 · 6:57 am

Open Letter to new ICO

I was delighted recently to be invited by OpenDemocracy to sign an open letter to John Edwards, new Information Commissioner, calling for more to be done to regulate FOI effectively. I’ve written many posts in the past breaking the state of FOI enforcement, so everything in the letter resonated with me. The letter has now been sent, and there are some very high profile journalists, MPs and campaigners who have signed:

https://www.opendemocracy.net/en/freedom-of-information/information-commissioner-foi-open-letter-secrecy/

Edwards has already replied, and said that addressing these concerns will be a priority for him.

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December 24, 2021 · 11:15 am

Reporter uses FOI to lift anonymity order

Here’s a remarkable example of good use of Freedom of Information (FOI) law. Tanya Fowles, a reporter covering courts in Northern Ireland, has successfully applied to lift a reporting restriction order, originally made in the magistrates’ court, which prevented her naming a person convicted of causing a child to engage in sexual activity.

The court appears to have imposed the original order because of a perceived risk to the defendant’s safety, based on evidence given by a police officer, who is reported to have told the court that

It’s a small, rural community. The family would be well-known. I think he would be easily identified. I know of incidents recently where paedophile hunters have gone to houses and attacked individuals. I am aware that is prevalent within the area, or certainly was last year. They have turned up at houses and one was arrested for assault. After that there was a bit of a lull, but I believe they are still active in the area.

However, Fowles then made an FOI request to the Police Service of Northern Ireland, which revealed that, far from such incidents being prevalent, police had only attended seven incidents in the entire County Armagh area during 2019/20, resulting in a single report of assault but zero prosecutions. This evidence was accepted in the county court (to which the case had been transferred) and the reporting restriction order was lifted.

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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June 23, 2019 · 11:48 am

Boris Johnson and GDPR

Might there have been a breach of data protection law in the recording, apparently by neighbours, of incidents at Boris Johnson’s home, and the passing of the recording to the media and the police? Almost certainly not.

(In this post I would like to avoid, as far as possible, broader ethical questions, and I will restrict any political observations to this: if Johnson becomes leader of the Conservative Party, and therefore prime minister, the two main UK political parties will be being led by people less fit to hold the role than at any time in my lifetime.)

In general, processing of personal data done for one’s own domestic purposes avoids the need for compliance with data protection law: Article 2(2)(c) of the General Data Protection Regulation (GDPR) – which of course provides the overarching statutory framework for most processing of personal data – says that the GDPR itself “does not apply to the processing of personal data…by a natural person in the course of a purely personal or household activity”. This is understandable: were there not such a carve-out, one’s children might, say, try to sue one for unlawful processing of their pocket-money data.

However, that word “purely” is key in Article 2. Processing which is not in the course of a “purely” domestic activity, such as, say, passing a recording of an altercation involving one’s neighbours to the media and the police, will be within GDPR’s scope.

So if GDPR is likely to apply, what are the considerations?

Firstly, passing information to the police about an altercation involving one’s neighbours is straightforward: GDPR permits processing which is necessary for the performance of a task carried out in the public interest (Article 6(1)(e)) and where the processing is necessary for the purposes of someone’s legitimate interests (provided that such interests are not overridden by the rights of the data subject) (Article 6(1)(f)).

But what of passing such information to the media? Well, here, the very broad exemption for the purposes of journalism will apply (even though the neighbours who are reported to have passed the information to the media are not, one assumes, journalists as such). GDPR requires members states to reconcile the right to the protection of personal data with the right to freedom of expression and information, including processing for journalistic purposes, and this obligation is given effect in UK law by paragraph 26 of Schedule 2 to the Data Protection Act 2018. This provides that the GDPR provisions (for the most part) do not apply to processing of personal data where it

is being carried out with a view to the publication by a person of journalistic, academic, artistic or literary material, and…the controller reasonably believes that the publication of the material would be in the public interest [and] the controller reasonably believes that the application of [the GDPR provisions] would be incompatible with the… purposes [of journalism].

Here, the controller is not just going to be the journalist or media outlet to whom the information was passed, but it is also likely to be the non-journalist person who actually passes the information (provides that the latter passes it with a view to its publication and does so under a reasonable belief that such publication would be in the public interest).

The equivalent exemption in the prior law (the Data Protection Act 1998) was similar, but, notably, applied to processing which was only carried for the purposes of journalism (or its statutory bedfellows – literature and art). The absence of the word “only” in the 2018 Act arguably greatly extends the exemption, or at least removes ambiguity (there was never any notable example of action being taken under the prior law against the media for processing which was alleged to be unlawful and which was for more than one purposes (i.e. not solely for the purposes of journalism)).

It seems almost certain, then, that Johnson’s non-journalist neighbours could avail themselves of the “journalism” exemption in data protection law. As could anyone who processes personal data with a view to its publication and who reasonably believes such publication is in the public interest: we should prepare to see this defence aired frequently over the coming years. Whether the exemption is too broad is another question.

Because of the breadth of the journalism exemption in data protection law, actions are sometimes more likely to be brought in the tort of misuse of private information (see, for example, Cliff Richard v BBC, and Ali v Channel 5). Whether such a claim might be available in this case is also another question, and not one for this blog.

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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August 7, 2017 · 7:19 am

DCMS Statement of Intent on the Data Protection Bill

Not so much a Statement of Intent, as a Statement of the Bleeding Obvious

The wait is not quite over. We don’t yet have a Data Protection Bill, but we do have a Statement of Intent from DCMS, explaining what the proposed legislation will contain. I though it would be helpful to do a short briefing note based on my very quick assessment of the Statement. So here it is

IT’S JUST AN ANNOUNCEMENT OF ALL THE THINGS THE UK WOULD HAVE TO IMPLEMENT ANYWAY UNDER EUROPEAN LAW

By which I mean, it proposes law changes which will be happening in May next year, when the General Data Protection Regulation becomes directly applicable, or changes made under our obligation to implement the Police and Crime Directive. In a little more detail, here are some things of passing interest, none of which is hugely unexpected.

As predicted by many, at page 8 it is announced that the UK will legislate to require parents to give consent to children’s access to information society services (i.e. online services) where the child is under 13 (rather than GDPR’s default 16). As the UK lobbied to give member states discretion on this, it is no surprise.

Exemptions from compliance with majority of data protection law when the processing is for the purposes of journalism will remain (page 19). The Statement says that the government

believe the existing exemptions set out in section 32 strike the right balance between privacy and freedom of expression

But of potential note is the suggestion that

The main difference will be to amend provisions relating to the ICO’s enforcement powers to strengthen the ICO’s ability to enforce the re-enacted section 32 exemptions effectively

Without further details it is impossible to know what will be proposed here, but any changes to the existing regime which might have the effect of decreasing the size of the media’s huge carve-out will no doubt be vigorously lobbied against.

There is confirmation (at pp17 and 18) that third parties (i.e. not just criminal justice bodies) will be able to access criminal conviction information. Again, this is not unexpected – the regime for criminal records checks for employers etc was unlikely to be removed.

The Statement proposes a new criminal offence of intentionally or recklessly re-identifying individuals from anonymised or pseudonymised data, something the Commons Science and Technology Committee has called for. Those who subsequently process such data will also be guilty of an offence. The details here will be interesting to see – as with most privacy-enhancing technology, in order for anonymisation to be robust it needs to stress-tested – such testing will not be effective if those undertaking do so at risk of committing an offence, so presumably the forthcoming Bill will provide for this.

The Bill will also introduce an offence of altering records with intent to prevent disclosure following a subject access request. This will use the current mechanism at section 77 of the Freedom of Information Act 2000. Whether that section itself will be amended (time limits for prosecutions militate against its effectiveness) remains unknown.

I also note that the existing offence of unlawfully obtaining personal data will be widened to those who retain personal data against the wishes of the data controller, even where it was initially obtained lawfully. This will probably cover those situations where people gather or are sent personal data in error, and then refuse to return it.

There is one particular howler at page 21, which suggests the government doesn’t understand what privacy by design and privacy by default mean:

The Bill will also set out to reassure citizens by promoting the concept of “privacy by default and design”. This is achieved by giving citizens the right to know when their personal data has been released in contravention of the data protection safeguards, and also by offering them a clearer right of redress

Privacy by design/default is about embedding privacy protection throughout the lifecycle of a project or process etc., and has got nothing at all to do with notifying data subjects of breaches, and whether this is a drafting error in the Statement, or a fundamental misunderstanding, it is rather concerning that the government, which makes much of “innovation” (around which privacy by design should be emphasised), fails to get this right.

So that’s a whistle stop tour of the Statement, ignoring all the fluff about implementing things which are required under GDPR and the Directive. I’ll update this piece in due course, if anything else emerges from a closer reading.

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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September 23, 2015 · 4:55 pm

ICO discloses names of Operation Motorman journalists

In August this year the Upper Tribunal dismissed an appeal by the Information Commissioner’s Office (ICO) of a prior ruling that he must disclose the names of certain journalists who appeared on a list 305 names seized by the ICO during a raid in 2003 on the home of private investigator Steve Whittamore. The raid was part of “Operation Motorman”, an investigation which forms part of the background to the various civil and criminal proceedings generated by the phone-hacking scandals, and to the establishment of the Leveson Inquiry.

The names which have been ordered to be disclosed have now been provided by the ICO to the requester, the clearly indefatigable Chris Colenso-Dunne. Chris has kindly given the list to me, and I make it available in the attachment below. One name stands out in particular: Rebekah Wade (as she then was), now Brooks, who has always denied knowledge of the phone-hacking which took place while she was editor of the now defunct News of the World (and who was, of course, acquitted in 2014 of conspiring to hack phones when editor of that paper and of making corrupt payments to public officials when editor of The Sun, as well as of all other charges).

It is important to be aware, as the Upper Tribunal said, that presence on the list means nothing more than that the journalists in question

had commissioned Mr Whittamore to obtain information… The information did not carry with it any assertion as to the actual or alleged commission of any crime by those journalists [para 38]

No doubt the list will generate further comment, though.

ICO Motorman List

[this post was edited to remove a paragraph where I’d mistakenly taken the list to mean that Wade was working for “Femail” at the time]

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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August 8, 2015 · 10:22 am

FOI, data protection and rogue landlords 

On 23rd July the Chartered Institute of Environmental Health (CIEH), in conjunction with the Guardian, published a database of landlords who have been convicted of offences under the Housing Act 2004. This showed, for example, that one landlord has been prosecuted seven times for issues relating to disrepair and poor state of properties rented out. It also showed apparent regional discrepancies regarding prosecutions, with some councils carrying out only one prosecution since 2006.

This public interest investigative journalism was, however not achieved without a fight: in September last year the information Commissioners office (ICO) issued a decision notice finding that the journalists request for this information had been correctly refused by the Ministry of Justice on the grounds that the information was sensitive personal data and disclosure under the Freedom of Information Act 2000 (FOIA) would contravene the MoJ’s obligations under the Data Protection Act 1998 (DPA). Section 40(2) of FOIA provides that information is exempt from disclosure under FOIA if disclosure would contravene any of the data protection principles in Schedule One of the DPA (it also provides that it would be exempt if disclosure would contravene section 10 of the DPA, but this is rarely invoked). The key data protection principle is the first, which says that personal data must be processed fairly and lawfully, and in particular that the processing must meet one of the conditions in Schedule Two, and also – for sensitive personal data – one of the conditions in Schedule Three.

The ICO, in its decision notice, after correctly determining that information about identifiable individuals (as opposed to companies) within the scope of the request was sensitive personal data (because it was about offences committed by those individuals) did not accept the requester’s submission that a Schedule Three condition existed which permitted disclosure. The only ones which could potentially apply – condition 1 (explicit consent) or condition 5 (information already made public by the individual) – were not engaged.

However, the ICO did not at the time consider the secondary legislation made under condition 10: the Data Protection (Processing of Sensitive Personal Data) Order 2000 provides further bases for processing of sensitive personal data, and, as the the First-tier Tribunal (Information Rights) (FTT) accepted upon appeal by the applicant, part 3 of the Schedule to that Order permits processing where the processing is “in the substantial public interest”, is in connection with “the commission by any person of any unlawful act” and is for journalistic purposes and is done with a “view to the publication of those data by any person and the data controller reasonably believes that such publication would be in the public interest”. In fairness to the ICO, this further condition was identified by them in their response to the appeal.

In this case, the information was clearly sought with a view to the future publication in the CIEH’s Magazine, “Environmental Health News” and the requester was the digital editor of the latter. This, the FTT decided, taken with the (objective) substantial public interest in the publication of the information, was sufficient to make disclosure under FOIA fair and lawful. In a passage (paras 28-30) worth quoting in full the FTT said

Unfit housing is a matter of major public concern and has a significant impact on the health of tenants.  The Housing Act is a key mechanism for local authorities to improve housing standards and protect the health of vulnerable tenants.  One mechanism for doing this is by means of prosecution, another is licensing schemes for landlords.  Local authorities place vulnerable families in accommodation outside their areas tenants seek accommodation, The publication of information about convictions under the Housing Act would be of considerable value to local authorities in discharge of their functions and assist prospective tenants and those assisting them in avoiding landlords with a history of breaches of the Housing Act.

The sanctions under the Housing Act are comparatively small and the  opprobrium of a conviction may well not rank with other forms of criminal misbehaviour, however the potential for harm to others from such activity is very great, the potential for financial benefit from the misbehaviour is also substantial.  Breaches of the Housing Act are economically motivated and what is proposed is a method of advancing the policy objective of the Housing Act by increasing the availability of relevant information to key actors in the rented housing market – the local authorities as regulator and purchaser and the tenants themselves.  Any impact on the data subjects will overwhelmingly be on their commercial reputations rather than more personal matters.

The Tribunal is therefore satisfied that not only is the disclosure of this information in the substantial public interest, but also any reasonably informed data controller with  knowledge of the social needs and the impact of such disclosure would so conclude.

It is relatively rare that sensitive personal data will be disclosed, or ordered to be disclosed, under FOIA, but it is well worth remembering the 2000 Order, particularly when it comes to publication or proposed publication of such data under public interest journalism.

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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February 4, 2015 · 9:25 am

Is an FOI request from an investigative journalist ever vexatious?

Last week, in the Court of Appeal, the indefatigable, if rather hyperbolic, Mr Dransfield was trying to convince three judges that his request, made long ago, to Devon County Council, for information on Lightning Protection System test results relating to a pedestrian bridge at Exeter Chiefs Rugby Ground, was not vexatious. If he succeeds in overturning what was a thorough, and, I think, pretty unimpeachable ruling in the Upper Tribunal, then we may, at last, have some finality on how to interpret section 14(1) of the Freedom of Information Act 2000 (FOIA):

a public authority [is not obliged] to comply with a request for information if the request is vexatious

But what is certain is that the Court of Appeal will not hand down a ruling which would allow a public authority to feel able merely to state that a request is vexatious, and do nothing more to justify reliance on it. But that is what the Metropolitan Police appear to have done in an extraordinary response to FOIA requests from the Press Gazette. The latter has been engaging in a campaign to expose what it believes to be regular use of surveillance powers to monitor or investigate actions of journalists. This is both a serious subject and a worthy campaign. Investigative journalism, by definition, is likely to involve the making of enquiries, sometimes multiple ones, sometimes speculative, “to discover the truth and to identify lapses from it”. It is inevitable that an investigative journalist will from time to time need to make use of FOIA, and the Information Commissioner’s Office (ICO) advises that

[public] authorities must take care to differentiate between broad requests which rely upon pot luck to reveal something of interest and those where the requester is following a genuine line of enquiry

The ICO doesn’t (and couldn’t) say that a FOIA request from an investigative journalist could never be classed as vexatious, but I think the cases when that would happen would be exceptional. The Upper Tribunal ruling by Wikeley J that Mr Dransfield is seeking to overturn talked of “vexatious” as connoting

a manifestly unjustified, inappropriate or improper use of a formal procedure

and

It may be helpful to consider the question of whether a request is truly vexatious by considering four broad issues or themes – (1) the burden (on the public authority and its staff); (2) the motive (of the requester); (3) the value or serious purpose (of the request) and (4) any harassment or distress (of and to staff)

although it was stressed that these were neither exhaustive, nor a “formulaic checklist”.

It is difficult to imagine that the motive of the Press Gazette journalists can be anything but well-intended, and similarly difficult to claim there is no value or serious purpose to the request, or the other requests which need to be considered for context. Nor has there been, as far as I am aware, any suggestion that the requests have caused Met staff any harassment or distress. So we are (while noting and acknowledging that we are not following a checklist) only likely to be talking about “the burden on the public authority and its staff”. It is true that some requests, although well-intentioned and of serious value, and made in polite terms, have been accepted either by the ICO or the First-tier Tribunal (FTT), as being so burdensome to comply with that (even before considering whether FOIA costs limits are engaged) they merit rejection on vexatiousness grounds. In 2012 the FTT upheld an appeal from the Independent Police Complaints Commission, saying that

A request may be so grossly oppressive in terms of the resources and time demanded by compliance as to be vexatious, regardless of the intentions or bona fides of the requester. If so, it is not prevented from being vexatious just because the authority could have relied instead on s.12 [costs limits]

and last year the FTT similarly allowed a late submission by the Department of Education that a request from the journalist Laura McInerney for information about Free School applications was vexatious because of the burden it would impose:

There is no question here of anything in the tone of the request tending towards vexatiousness; nor does anyone doubt Ms McInerney’s genuine motives…There is value in openness and transparency in respect of departmental decision making. That value would be increased by the academic scrutiny which the disclosed material would receive…In our judgment, however, these important considerations are dwarfed by the burden which implementation of the request places on DFE.

But it does not appear that the request in question from the Press Gazette was likely to go any way towards being grossly oppressive, or to being a burden which would “dwarf” the other considerations.

Moreover, and it does not appear to have been a point argued in the DfE case, there is an argument, explored through a series of cases in the Court of Justice of the European Union, and, domestically, in the Supreme Court, in Kennedy v ICO and Charity Commission, that Article 10 of the European Convention on Human Rights, providing as it does in part a right “to receive and impart information and ideas without interference by public authority” (subject to limitations that are prescribed by law, necessary and proportionate, and pursue a legitimate aim) might sometimes need to read down into FOIA, particularly where a journalist is the requester. Although the Supreme Court, by a majority, and on the facts (specifically in the context of a FOIA absolute exemption), rejected the submission in Kennedy, the argument in the abstract still has some weight – someone engaging in investigative journalism is clearly generally acting as a “social watchdog”, and the likelihood that they are making a FOIA request with bad motives, or without serious purpose, or in a way likely to harass or cause distress is correspondingly low. It seems to me that, absent the sort of “excessive burden” argument explored in the IPCC and DfE cases – and, as I say, the Met don’t seem to have advanced any such argument – to label a request from an investigative journalist as vexatious is to stand at the top of a slippery slope. One hopes that the Met review and reverse this decision.

p.s. In a world in which we are all journalists, this all has the potential to get very complicated.

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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