Category Archives: Upper Tribunal

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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Filed under Data Protection, Freedom of Information, Information Commissioner, Information Tribunal, journalism, Upper Tribunal

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

Red light for ICO spam text “fines”

A week ago I noted that the Information Commissioner’s Office (ICO) had effectively conceded that, since the Upper Tribunal’s decision in the Niebel case, it could not realistically serve monetary penalty notices (MPNs) on spam texters. I observed that

the result of the Niebel litigation has been to remove their powers to serve MPNs for spam texts, [with the ICO saying] it had “largely [rendered] our power to issue fines for breaches of PECR involving spam texts redundant”.

This perception has been reinforced by the press release today from the ICO, reporting a raid on a claims management call centre “thought to be connected to a spam text operation”. Information and hardware were seized in the raid, but the ICO says it

will now consider whether an enforcement notice compelling the organisation to comply with the rules regarding text marketing can be issued

Notably, no reference to an MPN is made. To recap, MPNs can be served 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 Niebel litigation, in very broad terms, cast doubt on whether receiving spam texts could ever cause substantial damage or substantial distress (as opposed to, say, irritation).

Whether this Llanelli operation was in contravention of the law, and if so what sanctions will flow will no doubt be determined on the basis of the seized information and other information.

And although enforcement notices are serious sanctions, with breach of one being a criminal offence (although not a recordable one) whether people running spam texting operations see them as a real deterrent is another matter.

 

 

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

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

The FOI ministerial veto – why not?

The Court of Appeal has ordered disclosure of private correspondence between Prince Charles and the government. The judgment is potentially a triumph for transparency, but I have my doubts whether it reflects Parliament’s intentions when passing the FOI Act. And there will be a further appeal…

In September 2012 the Administrative Appeals Chamber of the Upper Tribunal (UT) handed down a judgment which struck me then, as it does now, as a remarkable work of research and scholarship. It was ruling on requests by the Guardian journalist Rob Evans – made as far back as April 2005 – under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR) for disclosure of information in private letters sent by the Prince of Wales to government ministers on matters of official policy. The UT’s judgment ran to 65 pages with three annexes, went into detailed analysis of constitutional conventions regarding the heir to the throne, and its decision was that the correspondence should be disclosed (overturning the prior decisions of the Information Commissioner (IC)). Subsequently, the Attorney General issued a certificate under section 53 FOIA – a “ministerial veto” – whose effect was to disapply the UT’s decision. The Attorney General’s certificate, in rather wider-spaced text, ran to ten pages.

Section 53 requires only that the accountable person (a minister)

gives the [Information] Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion [that there had not been a failure to comply with the FOIA]

It is, as I’ve argued before , a bludgeon of an executive weapon, but it is, as are all acts of public authorities, potentially amenable to judicial review. So it was that, despite any statutory right of appeal, the Guardian made such an application. However, in July 2013, the High Court effectively decided that, although the ministerial power to override a superior court of record (let alone the statutory decision-maker, in the form of the IC) appeared to be a “constitutional aberration”, the proposition that “the accountable person is not entitled simply to prefer his own view to that of the tribunal” must be rejected. As Davis LJ said (para 111)

why not? It is inherent in the whole operation of s.53 that the accountable person will have formed his own opinion which departs from the previous decision (be it of Information Commissioner, tribunal or court) and may certify without recourse to an appeal. As it seems to me, therefore, disagreement with the prior decision (be it of Information Commissioner, tribunal or court) is precisely what s.53 contemplates, without any explicit or implicit requirement for the existence of fresh evidence or of irrationality etc. in the original decision which the certificate is designed to override

However, Davis LJ refused to accept that the wording of section 53 (“…stating that he has on reasonable grounds formed the opinion…”) permitted of an interpretation that:

the accountable person can, as it were, self-certify as to the availability of reasonable grounds

rather,

In my view, the language chosen clearly is sufficient to connote that an objective test is to be applied

But how to conduct that objective test? For Davis LJ, it must be that the reasonable grounds are “cogent”:

if an accountable person is to interfere, by way of exercise of the power of executive override, with the decision of an independent judicial body then that accountable person must be prepared and able to justify doing so. I am reluctant to talk in terms of burden of proof. But in terms of burden of argument the burden is in practice on the accountable person to show that the grounds for certifying are reasonable

Lord Dyson in the Court of Appeal has taken issue with this, saying (para 38) that

I do not consider that it is reasonable for an accountable person to issue a section 53(2) certificate merely because he disagrees with the decision of the tribunal. Something more is required […]
Examples of “something more” are given as
a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law
Accordingly, as the Attorney General failed to give this “something more” but “simply disagreed with the evaluation made by the UT”, he failed to give reasons amounting to “reasonable grounds”. Thus (putting to one side a crucial other ground on which the appeal succeeded, relating to the EIR and European law, which I will deal with in a later blog post) the certificate had to be quashed.

As Dr Mark Elliot argues Lord Dyson here “adopted a significantly more exacting conception of reasonableness” than had the High Court and I would commend Dr Elliot’s piece to you as an expert analysis I am not competent to give.

However – and it pains me to say it, because I really don’t like section 53 – wasn’t it precisely Parliament’s intention that the accountable person did “merely” have to state that he had formed – on reasonable grounds – a different opinion to the preceding tribunal? If he cannot arrive at a different opinion, in the absence of “something else”, isn’t section 53 fundamentally weakened, even sidestepped? Indeed, Lord Dyson in my view arrives at this point, when he says

On the approach of the Divisional Court to section 53(2), the accountable person can override the decision of an independent and impartial tribunal which (i) is reasonable, (ii) is the product of a detailed examination (fairly conducted) of the issues after an adversarial hearing at which all parties have been represented and (iii) is not challenged on appeal. All that is required is that the accountable person gives sensible and rational reasons for disagreeing with the tribunal’s conclusion. If section 53(2) has that effect, it is a remarkable provision not only because of its constitutional significance (the point emphasised by the Divisional Court), but also because it seriously undermines the efficacy of the rights of appeal accorded by sections 57 and 58 of the FOIA
to which I am tempted to respond, adopting Davis LJ’s rhetorical device, “why not?” – that seems to have been what Parliament intended.

No doubt we shall see this explored more – the Attorney General is reported to have sought, and been given, leave to appeal to the Supreme Court.

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

Knowing what to overlook

The Upper Tribunal has allowed an appeal by an appellant whose pre-hearing language and allegations had led the First-tier Tribunal to strike out his case.

In a recently handed down judgment Upper Tribunal Judge Jacobs says

Most appellants correspond with the tribunal only when necessary, make moderate criticisms and allegations, and express themselves politely. There is, however, a small body of appellants who are persistent in their correspondence which contains wild allegations that are expressed in an intemperate or aggressive tone…

What gave rise to the proceedings in question was an appeal, by a certain Mr Dransfield, of a decision by the First-tier Tribunal (Information Rights) (FTT) to strike out proceedings remitted to it by a decision of Judge Wikely in the Upper Tribunal (UT). That remittal decision was case reference GIA/1053/2011 – unhelpfully not currently available on the UT website – and is not to be confused with another (leading) decision by Wikely J in relation to an unsuccessful appeal by Mr Dransfield (reference GIA/3037/2011).

The FTT struck out the remitted case using powers conferred by rule 8(3)(b) of Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI No 1976) (“the Rules”), which permits a strike-out if

the appellant has failed to co-operate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly

It appears that Mr Dransfield was warned by the FTT judge by a direction on 11 January 2012 (I think this should say “2013”, but I quote from paragraph 4 of the UT’s judgment) about the unfortunate, although perhaps unintentional “hectoring tone” of his emails, and rule 8(3)(b) was specifically cited to Mr Dransfield, with the observation that

Co-operation, in this context, includes using moderate language and an appropriate tone 

The warning was reinforced orally, and repeated on 29 April 2013.

Despite this, Mr Dransfield then sent an email on 12 May 2013, which the UT declines to quote in full but which is described thus

Mr Dransfield accused the Commissioner and Council of ‘conniving and colluding to pervert the Course of Justice’ and of producing ‘a pack of lies and deception’. He later referred twice to a ‘wider conspiracy to pervert the course of justice’ and said that there was sufficient evidence to justify arresting the Commissioner’s legal representative and Judge Wikeley for conspiracy to pervert the course of justice

Accordingly, the proceedings were struck out, the same day.

Interestingly (and no doubt to the frustration of some of those involved), Mr Dransfield’s appeal of this strike out has succeeded. Jacobs J  follows the words I quote at the start of this piece with

It is usually possible to deal with that small minority of appellants without resorting to the power to strike out proceedings. It is possible to ban a party from using emails and direct that any that are sent will be ignored. Another way is to limit a party to communicating in writing and only when requested, with other letters being filed but ignored. At a hearing, it is possible to limit the time allowed to a party or, if necessary, to require a party to leave the hearing room. In my experience, measures such as this are usually effective

In short, Jacobs J says that case management powers can be properly used to manage a potentially difficult litigant, and should not in this case have led to the “draconian step” of striking out Mr Dransfield’s appeal. The type of allegation made by Mr Dransfield is “regularly made in appeals before this Chamber and just as regularly ignored by the judges”.  The power to strike out and the duty to cooperate are in a “reciprocal relationship” with the overriding objective “to enable the Tribunal to deal with cases fairly and justly” at Rule 2, and specifically those parts of Rule 2 which require flexibility in the proceedings (2(2)(b)) and that the parties are able to participate fully in the proceedings (2(2)(c)).

Jacobs J ends his judgment by noting that the FTT could have employed more flexible responses “without depriving Mr Dransfield of his right of appeal” and observes, by quoting William James

‘the art of being wise is the art of knowing what to overlook.’

Very true, but I think I would just add a general point that – sometimes – some things can be too big to overlook. There will still be some cases where the failure to comply with the duty to cooperate properly merits the striking out of proceedings.

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

Data Protection concerns and Article 6

Article 6(1) of the European Convention on Human Rights provides inter alia that “everyone is entitled to a fair and public hearing”. An interesting case in the Upper Tribunal shows how failure to comply with tribunal rules (in this case The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (“the TPR”) ) can render tribunal proceedings unfair and – arguably – in breach of Article 6(1). And although the case was not dealing substantively with an “information rights” matter, data protection played a small part.

This was a successful appeal, in which the Upper Tribunal held there had been a material error of law by the FTT. Upper Tribunal Judge Wright’s basis for permitting the appeal had been

that it seems arguable from the papers before me that the appeal was decided by the First-tier Tribunal without [the appellant] having had sight of the HMRC’s appeal response or the documents it relied on

and this was accepted by the respondent, HMRC.

It appears that HMRC had declined to comply with Rule 24(5) of the Rules (that it must provide a copy of the response and any accompanying documents to each other party at the same time as it provides the response to the Tribunal) because of “data security issues”…”because it was concerned that [the appellant] was not living at the address he was relying on”. It had conveyed its intention not to comply with Rule 24(5) in a letter to the FTT, but had not referred to any other Rule which permitted the action, and, although the letter sought directions from a judge there was no evidence

either on the Upper Tribunal file or the First-tier Tribunal file – to indicate either (a) that this letter was ever put before a Judge of the First tier-Tribunal, or (b) that directions were issued either requiring disclosure or precluding it, or (c) that the appeal response and evidence was ever sent to [the appellant] before the appeal was decided on 23.04.12

Accordingly, HMRC erred in law in not providing the appeal response and evidence, and the FTT, in not addressing this, made a material error of law in coming to its decision.

The Upper Tribunal judge also noted that HMRC’s concerns about data security could well have been met by section 35 of the Data Protection Act 1998 (which provides an exemption from the bars elsewhere in the DPA against disclosure of personal data if the “disclosure is required by or under any enactment, by any rule of law or by order of the court”). As the judge observed, “those words would seem to encompass rule 24 of the TPR”.

Lawyers and practitioners (and indeed litigants) should be aware that data protection concerns regarding disclosure of evidence, or serving of required papers, should not get in the way of tribunals’ overrriding objectives to deal with cases fairly and justly, because if they do, a potential breach of parties’ Article 6 rights may occur. They should also make sure (as should, I suspect, tribunal clerks) that letters seeking directions are put before a judge.

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Will there be blood?

The First-tier Tribunal (Information Rights) (FTT) has overturned a decision by the Information Commissioner that the Northern Ireland Department for Health, Social Services and Public Safety (DHSSPS) should disclose advice received by the Minister of that Department from the Attorney General for Northern Ireland regarding a policy of insisting on a lifetime ban on males who have had sex with other males (“MSM”) donating blood.

On 11 October 2013 the Northern Ireland High Court handed down judgment in a judicial review application, challenging the decision of the Minister and the DHSSPS maintain the lifetime ban. The challenge arose because, in 20011, across the rest of the UK, the blanket ban which had existed since 1985 had been lifted.

DHSSPS lost the judicial review case, and lost relatively heavily: the decision of the Minister was unlawful for reasons that i) the Secretary of State, and not the Minister, by virtue of designation under the Blood Safety and Quality Regulations 2005, was responsible for whether to maintain or not the lifetime ban, ii) similarly, as (European) Community law dictated that this was a reserved matter (an area of government policy where the UK Parliament keeps the power to make legislate in Scotland, Northern Ireland and Wales), the decision was an act which was incompatible with Community law, iii) the Minister had taken a decision in breach of the Ministerial Code, by failing to refer the matter, under Section 20 of the Northern Ireland Act 1998, to the Executive Committee, and iv) although a ban in itself might have been defensible, the fact that blood was then imported from the rest of the UK (where the ban had been lifted) rendered the decision irrational.

Running almost concurrently with the judicial review proceedings was a request, made under the Freedom of Information Act 2000 (FOIA), for advice given to the Minister by the Attorney General for Ireland. The FOIA exemption, at section 42, for information covered by legal professional privilege (LPP) was thus engaged. The original decision notice by the Information Commissioner had rather surprisingly found that it was advice privilege, as opposed to litigation privilege. The IC correctly observed that for litigation privilege to apply

at the time of the creation of the information, there must have been a real prospect or likelihood of litigation occurring, rather than just a fear or possibility

and, because the information was dated October 2011, and leave for judicial review had not been sought until December 2011

at the time the information was created, ltigation was nothing more than a possibility

But one questions whether this can be correct, when one learns from the FTT judgment that DHSSPS had been sent a pre-action protocol letter on 27 September 2011. Again rather surprisingly, though, the FTT does not appear to have made a clear decision one way or the other which type of privilege applied, but its observation that

when the request was made judicial review proceedings…were already underway

would imply that they disagreed with the IC.

This discrepancy might lie behind the fact that the FTT afforded greater weight to the public interest in favour of maintaining the exemption. It was observed that

[the existence of the proceedings] at the time of the request seems to us to be an additional specific factor in favour of maintaining the exemption. It seems unfair that a public authority engaged in litigation should have a unilateral duty to disclose its legal advice [para 19]

Additionally, the fact that the advice was sought after the decision had been taken meant that it could give “no guide to the Minister’s motives or reasoning”.

Ultimately – and this is suggestive that the issue was finely balanced – it was the well-established inherent public interest in the maintenance of LPP which prevailed (para 21). This was a factor of “general importance” as found in a number of cases summarised by the Upper Tribunal in DCLG v The Information Commissioner and WR (2012) UKUT 103 (AAC).

Because the appeal succeeded on the grounds that the section 42 exemption applied, the FTT did not go on to consider the other exemptions pleaded by DHSSPS and the Attorney General – sections 35(1)(a) and 35(1)(c), although it was very likely that the latter at least would have also applied.

Aggregation of public interest factors

Because the other exemptions did not come into play, the FTT’s observation on the IC’s approach to public interest factors where more than one exemption applies are strictly obiter, but they are important nonetheless. As all good Information Rights people know, the European Court of Justice ruled in 2011, that when more than one exception applies to disclosure of information under the Environmental Information Regulations 20040 (EIR), the public authority may (not must)  weigh the public interest in disclosure against the aggregated weight of the public interest arguments for maintaining all the exceptions. The IC does not accept that this aggregation approach extends to FOIA, however (see para 73 of his EIR exceptions guidance) and this was reflected in his decision notice in this matter, which considered separately the public interest balance in respect of the two exemptions he took into account. He invited the FTT to take the same approach, but, said the FTT, had the need arisen, the IC would have needed to justify how this “piecemeal approach” tallied with the requirement at section 2(2)(b) of FOIA to consider “all the circumstances of the case”. Moreover, the effect of the IC’s differing approaches under EIR and FOIA means that

there will be a large number of cases in which public authorities, the ICO and the Tribunal will be required to make a sometimes difficult decision about which disclosure regime applies in order to find out how to conduct the public interest balancing exercise

I am not aware of anywhere that the IC has explained his reasoning that aggregation does not apply in FOIA, and it would be helpful to know, before the matter becomes litigated (as it surely will).

And I will just end this rather long and abstruse piece with two personal observations. Firstly, donating blood is simple, painless and unarguably betters society – anyone who can, should donate. Secondly, denying gay men the ability, in this way, to contribute to this betterment of society is absurd, illogical and smacks of bigotism.

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