December 3, 2024 · 6:00 am

I don’t think that word means what you think it means

[reposted from LinkedIn]

I think there’s a plain error of law in this Information Tribunal judgment (O’Hanlon & Anor v Information Commissioner & Anor [2024] UKFTT 1061 (GRC)).

Section 36(2)(b) of the Freedom of Information Act 2000 (FOIA) says that information is exempt if, in the reasonable opinion of a qualified person, disclosure would, or would be likely to, inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation, or would otherwise prejudice (or would be likely to do so) the effective conduct of public affairs.

I’ve written elsewhere about the flawed concept of who a “qualified person” is, but, at least in relation to govt departments, it’s straightforward: it’s a minister (s36(5)(a)).

In June 2022, Lord True, Minister of State in the Cabinet Office, in the context of a then-live FOIA request, gave a s36 “reasonable opinion”, as a qualified person, that internal department email addresses were exempt, and – crucially – that his opinion was to apply “going forward” in relation to any similar requests. Subsequently, the Cabinet Office applied his opinion to a new request which was received after he had given it.

The ICO said this was not permitted: “the provisions of s36 only become relevant once a request for information has been made…a Qualified Person’s opinion must therefore necessarily post-date the request for the information, and must be an opinion relating to the specific request”.

Not so, said the Tribunal: s36(6)(b) allows an “authorisation” to be “general”, and, therefore “a general authorisation must include be [sic] forward looking to other requests”.

But that is not what “authorisation” means in s36: the word only occurs, prior to s36(6)(b), in s36(5), and it refers to the authorisation of persons as qualified persons to give a reasonable opinion. In other words, the qualified person gives an opinion – not an “authorisation”. The reference in s36(6)(b) to an authorisation being permitted to be “general” is followed by “or limited to specific classes of case” – i.e. a person may be authorised in general to give a reasonable opinion, or authorised (perhaps they have a specialism) only in certain cases).

It does not mean that they are “authorised” to give a prospective qualified opinion that classes of information will always be exempt (subject to a public interest test).

The Tribunal’s reading of s36(6)(b) heavily informed its judgment, and it’s certainly questionable whether, but for this error, it would have decided in favour of giving this “prospective effect” to some s36 qualified opinions.

One hopes the ICO will appeal – because there will otherwise be a risk that public authorities will start classifying, of their own accord, certain classes of information as “always exempt”.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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November 28, 2024 · 5:51 am

Regulators’ powers to get information from public authorities

[reposted from LinkedIn]

“The contents of this judgment stand as a salutary warning to local authorities and to other public bodies concerned with fitness to practise in occupations concerned with or touching on the welfare of children…I hope what took place in this case will not happen again.”

These are the concluding words of General Dental Council v KK & Anor [2024] EWHC 3053 (Fam), a stinging judgment of Mrs Justice Knowles in the Family Court.

During the course of a fitness to practise (FTP) investigation involving “KK” the General Dental Council (GDC) were informed by the police that a local authority, Stockport Council (SMBC), held information relating to public law proceedings involving the care of children. Under s12(1)(a) of the Administration of Justice Act 1960 (AJA) it is criminal contempt to disclose much of the information in relation to such proceedings. Notwithstanding this (and apparently ignorant of it) the GDC made a request for information to SMBC, alluding to its powers to require supply of information under s33B(2) of The Dentists Act 1984 (DA). SMBC subsequently disclosed a raft of information to the GDC, apparently under the belief that s33B(2) compelled them to do so.

However, s33B(3) of the DA states that “nothing in this section shall require or permit any disclosure of information which is prohibited by any relevant enactment”: section 12(1)(a) of the AJA clearly was a “relevant enactment” prohibiting the disclosure.

The upshot was an unholy mess: the information disclosed was used by the GDC in the FTP proceedings and it was almost four years into those protracted proceedings before the issue of the unlawfully disclosed information came to light. An application by GDC to the Family Court for an order for (lawful) disclosure was made, and Knowles J indicated during the initial hearing that contempt proceedings would not be necessary or proportionate “subject to the Court being satisfied that all unauthorised material disclosed to the GDC had been deleted from its server and was no longer in its possession”. By that point though, in the FTP proceedings, there had been (deep breath) “11 interim order hearings; 4 extensions…in the High Court; 3 substantive hearings before the Professional Conduct Committee and 6 preliminary hearings before the Practice Committee…and at least 149 individuals needed to be contacted to ascertain whether they held unauthorised disclosure arising from their work on behalf of the GDC.” The deletion process took approximately six months.

Ultimately, appropriate, restricted and lawful disclosure by SMBC was ordered. Contempt proceedings against GDC and SMBC (and individuals) were not necessary.

GDC and SMBC jointly have to meet KK’s costs, and – although the judgment records that both have since initiated training/protocols etc to prevent any recurrence – in the words of the judge, “both have been shamed by what occurred”.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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November 27, 2024 · 8:16 am

ICO Annual Reports 1985 to date

I’ve had to retrieve a lot of these from the National Archives Web Archive.

The sixteenth report looks like it was co-published with the Australian Commissioner.

All reports are published under the Open Government Licence by which the licensor grants a worldwide, royalty-free, perpetual, non-exclusive licence to use the information, subject to conditions.

First report.pdf 1985
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Second report.pdf 1986
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Third report.pdf 1987
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Fourth report.pdf 1988
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Fifth report part a.pdf 1989
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Fifth report part b.pdf 1989
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Sixth report.pdf 1990
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Seventh report.pdf 1991
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Eighth report.pdf 1992
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Ninth report.pdf 1993
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Tenth report.pdf 1994
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Eleventh report.pdf 1995
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Twelfth report.pdf 1996
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Thirteenth report.pdf 1997
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Fourteenth report.pdf 1998
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Fifteenth report.pdf 1999
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Sixteenth report.pdf 2000
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Seventeenth report.pdf 2001
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Eighteenth report.pdf 2002
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Nineteenth report.pdf 2003
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Twentieth report.pdf 2004
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Twenty first report.pdf 2005
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Twenty second report.pdf 2006
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Twenty third report.pdf 2007
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Twenty fourth report.pdf 2008
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Twenty fifth report.pdf 2009
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Twenty sixth report.pdf 2010
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Twenty seventh report.pdf 2011
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Twenty eighth report.pdf 2012
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Twenty ninth report.pdf 2013
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Thirtieth report.pdf 2014
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Thirty first report.pdf 2015
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Thirty second report.pdf 2016
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Thirty third report.pdf 2017
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Thirty fourth report.pdf 2018
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Thirty fifth report.pdf 2019
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Thirty sixth report.pdf 2020
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Thirty seventh report.pdf 2021
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Thirty eighth report.pdf 2022
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Thirty ninth report.pdf 2023
Information Commissioner’s Office, licensed under the Open Government LicenceDownload
Fortieth report.pdf 2024
Information Commissioner’s Office, licensed under the Open Government LicenceDownload

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November 27, 2024 · 5:57 am

Late (very late) reliance on exemptions, redux

[reposted from LinkedIn]

A Freedom of Information exemption may be relied upon “late” by a public authority (e.g. it can be claimed, after an initial refusal on other grounds, during an investigation by the Information Commissioner, or in the course of proceedings before the First-tier Tribunal). The jurisprudence on this is clear (Birkett v The Department for the Environment, Food and Rural Affairs [2011] EWCA Civ 1606, All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner & Ministry of Defence [2011] UKUT 153 (AAC), Information Commissioner v Malnick and the Advisory Committee on Business
Appointments [2018] UKUT 72 (AAC), McInerney v Information Commissioner and the Department for Education [2015] UKUT 0047 (AAC)).

But can a public authority, having received a preliminary decision from the FTT that an exemption is not engaged, and after the FTT has invited further submissions on the other exemptions said to be engaged, adduce new grounds for the rejection of the first exemption? Perhaps surprisingly, the FTT has answered “yes”.

In Finch v IC & HMT EA/2023/0303, the FTT had rejected HMT’s reliance on the section 12 costs exemption, in a preliminary decision of 12 January. HMT had argued that its IT supplier would charge more than £600 to retrieve the requested information from storage, and so the s12 exemption was engaged. However, the FTT held that no evidence was provided as to this, and so rejected the argument. As the ICO’s decision under appeal had only considered the s12 issue, the other exemptions said by HMT to be engaged (s40(2), s41, s43(2)) required further submissions from the parties, and so the FTT directed that these be provided and heard at a subsequent hearing.

HMT then submitted that it wished to rely on s12 on different grounds because a “new factual matrix” needed to be considered – in fact it did have access to repository of information, but the searches would take c.46.5 hours (and so exceed the s12 costs limits).

The FTT determined (Birkett, Malnick and – oddly – Browning v Information Commissioner [2013] UKUT 236 considered) that the broad case management powers under rule 5 of the Tribunal Rules allowed it to set its own procedure and that, accordingly, it would permit this “pivoted” reliance on new s12 grounds.

Those new grounds then prevailed, the s12 exemption applied (as would have, if necessary, the s40, 41, and 43 grounds) and the appeal failed.

Even though the ICO did not appear at the hearing, they did make submissions suggesting they opposed the late reliance. It will be interesting to see if they seek to appeal, as the idea that public authorities can as a general rule shift their grounds for relying on an exemption after it has been – in a preliminary decision – rejected, is not a particularly attractive one.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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November 23, 2024 · 10:44 am

No right to anonymity in withdrawn proceedings

[reposted from LinkedIn]

The Upper Tribunal (Tax and Chancery) Chamber (UT) has declined to accept that, as a general rule, where a party bringing substantive proceedings has sought, and failed to get, an ancillary anonymity order, they should be able to withdraw their substantive application and maintain anonymity.

The applicant – “The Taxpayer” – was originally granted anonymity (i.e. that the hearing should be in private) by the First-tier Tribunal (FTT) in proceedings where he was appealing against the denial by HMRC of certain tax deductions which he had claimed.

In a decision from January this year the Upper Tribunal granted HMRC’s appeal and set aside the FTT’s direction. The Taxpayer then sought a direction from the UT that if he withdrew his substantive FTT appeal against HMRC’s denial of deductions, the UT proceedings would remain anonymised.

Counsel for The Taxpayer accepted that this would be a derogation from the open justice principle, but argued that it was one that – absent bad faith – would always be necessary in such withdrawal circumstances “in order to secure the administration of justice and to protect an applicant’s Article 8 rights”.

Not so, held the UT: “it would undermine [the open justice] principles for the Anonymity Application to be granted without any consideration of the degree of necessity, the facts and circumstances said to justify anonymity, or the proportionality of the derogation from the principle of open justice. An application such as the Anonymity Application is not to be refused or granted in every case, but stands or falls by a granular, fact-specific, assessment of those factors”.

Pending further appeal, the identity of The Taxpayer remains undisclosed, but once appeal has been refused, or deadline has passed, the judgment will be republished without anonymisation.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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November 22, 2024 · 7:29 am

Yes, Ok, I can be vexatious

[reposted from LinkedIn]

Until a few days ago, I had never, in almost twenty years of making FOI requests, had one refused on the section 14(1) grounds that it was vexatious. But this one broke that streak.

A request can be vexatious for a number of reasons, most of which go to the motives or behaviour of the requester (see the leading case of IC v Dransfield [2012] UKUT 440 (AAC)), but the law has also developed to encompass requests which, by nature of the work which would be required to assess and redact exempt information, are simply too onerous to respond to (see Cabinet Office v Information Commissioner and Ashton [2018] UKUT 208 (AAC)).

As I try to have, and show, no bad motive or behaviour, and as I try very hard not to make requests that are too broad, I’d managed to avoid such a refusal until now.

I asked for the full dataset of Tribunal cases which the Information Commissioner has been involved in. In a previous disclosure an extract from this dataset had been provided to someone. I didn’t know that that full dataset had potentially exempt fields in it. Having had this explained to me I don’t doubt that these fields would be exempt, and I don’t doubt the onerousness of the work which would be required to redact it all. So on the face of it, the refusal is fine, and I’ve submitted a follow up request for narrowed-down information.

But I think this was a good example of how the public authority could have dealt with this differently. They knew that I’d seen the previous extract, and should reasonably have surmised from that that I only wanted those fields, but across the whole dataset. An email or phone call to clarify this would have resolved the issue straight away (and I wouldn’t be writing this now). The case officer does acknowledge this (“we apologise that we did not contact you sooner to advise that we would be unable to respond to this request and advise on how it could be revised”), and I’m not going to whinge (unless this is a whinge (it probably is, isn’t it?)) – everyone is busy, and I’ve certainly handled requests as a practitioner where I’ve realised I could done things differently and better earlier in the process.

But it’s a good example of how a small gap in understanding between requester and public authority can lead to more (and unnecessary) work for both.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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November 19, 2024 · 5:15 am

Can directors and trustees of charities be controllers?

[reposted from LinkedIn]

Savva v Leather Inside Out & Ors [2024] EWHC 2867 (KB), Sam Jacobs of Doughty Street Chambers, instructed by Forsters LLP for the defendants (the applicant in the instant application)

Is it the case that a director or trustee of a charity (which is a controller) cannot be a controller? That, in effect, was one of the grounds of an application by two defendants to strike out and grant summary judgment in a claim arising from alleged failures to comply with subject access requests.

The claim arises from a dispute between the claimant, a former prisoner, employed by a subsidiary of a charity (“Leather Inside Out” – currently in administration), and the charity itself. The claim is advanced against the charity, but also against the charity’s founder and two trustees, who are said on the claim form to be controllers of the claimant’s data, in addition to, or jointly with, the charity.

In a solid judgment, Deputy Master Alleyne refused to accept that such natural persons were not capable of being a controller: the term is given a broad definition in Article 4(7) UK GDPR, and “includes a natural or legal person, public authority, agency or other body and that there may be joint controllers. On plain reading of the provisions, it is incorrect to suggest that an allegation of joint controllers is, per se, not a legally recognisable claim” (re Southern Pacific Loans applied).

However, on the specific facts of this case, the pleading of the claimant (the respondent to the strike out application) failed “to allege any decisions or acts in respect of personal data which were outside the authority of the trustees as agents for [the charity]…the Respondent’s submissions demonstrated he wrongly conflated the immutable fact that a legal person must have a natural person through whom its decisions are carried into effect, with his case that the natural person must be assuming the defined status of data controller in their personal capacity”. That was not the case here – the founder and the trustees had not acted other than as agents for the charity.

Accordingly, the strike out application succeeded (notably, though, there Deputy Master said he had reached his conclusion
“not without some caution”).

Assuming the claim goes forward to trial, therefore, it can only be advanced against the charity, as sole controller.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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November 16, 2024 · 6:56 am

Non-party access to court documents

The issue of non-party access to information from court cases, such as parties’ skeleton arguments and other case documents, continues to exercise the courts. In a recent judgment (Moss v The Upper Tribunal [2024] EWCA Civ 1414), the Court of Appeal has ruled that the president of the Administrative Appeals Chamber of the Upper Tribunal had been wrong to refuse an application for parties’ written submissions from a Freedom of Information Act case.

Following the Supreme Court’s judgment in Dring, it is clear that there is no presumptive right to such documents. Instead, as Baroness Hale put it, “it is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle” (at para 45 of the SC judgment), and if that test is met, the court must consider any countervailing factors (at 46-47).

Here, the AAC President had rejected the applicant’s stated reason (“I am a campaigner and writer with a particular interest in information and rights law and certification/contempt proceedings, and I need copies of the skeleton arguments to see what arguments were deployed in these cases, to enable me to write about them from an informed point of view”) but did not explain why. This was an error of law, and Coulson LJ, reconsidering the material which had been before the President, decided instead that stated reason (just) met Baroness Hale’s first test. There were no countervailing factors, and so the appeal succeeded.

All three appeal court judges note that the Civil Procedure Rules Committee is in the process of considering how to deal with non-party information requests – something Baroness Hale had called for in a postscript to Dring.

However, as happened here, such requests are often made in relation to tribunal proceedings, which are not covered by the CPR. Tribunal rules are notably silent on such issues, and Underhill LJ wisely calls on the Tribunal Rules Committee also to consider the matter.

Aidan Wills of Matrix Chambers acted for the appellant, and Eric Metcalfe of Monckton Chambers for the Information Commissioner’s Office, as an interested party.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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November 1, 2024 · 5:44 am

Dismissed FE teacher’s data protection, MOPI, HRA claims fail

[reposted from LinkedIn]

Claims in misuse of private information, data protection and for breach of the Human Rights Act, by a dismissed further education teacher against Tameside College and three employees are struck out/subject to summary judgment for the defendant.

The claimant was initially suspended after evidence came to light that he had been dismissed from previous roles. The College’s investigation involved the sending of reference requests to two previous employers, and was also informed by disclosures of Facebook and WhatsApp messages which revealed the teacher had, contrary to instruction, communicated with students on social media whilst suspended, and “sent a threatening message to a WhatsApp Group chat comprising members of staff”.

The deputy master found that in relation to the misuse of private information claims, although the claimant had a reasonable expectation of privacy in the social media messages, “those expectations were greatly outweighed by the need to investigate those messages for the purposes of the disciplinary process”. These were subject to summary judgment for the defendant.

The data protection and human rights claims against individual employees were bound to fail, as they were neither data controllers nor public authorities.

As to the data protection claim against the college, a previous determination by the ICO that the sending of the reference requests was not fair and transparent, because it was contrary to the claimant’s expectations, was wrong: it was “plain that it ought to have been well within the Claimant’s reasonable expectation that, in order to investigate whether he had failed to disclose the fact of his dismissal from those two institutions, each would be contacted and asked about it.”

The college’s processing was lawful under Article 6(1)(b) and (c) of the UK GDPR: “The processing was necessary for the purposes of the contract of employment between the [college] and the Claimant and for the performance of the [college’s] obligations to its other staff, and to safeguard and promote the welfare of its students.” The various safeguarding legal duties and obligations on the college established a clear legal basis for the processing.

Similarly, the human rights claims against the college, which included complaints of unlawful monitoring and surveillance, were bound to fail: “There is no real prospect of establishing a breach of Article 8 for the same reasons that there is no real prospect of establishing misuse of private information. The alleged breaches of Articles 10 and 11 appear to relate to the College’s instructions to the Claimant not to communicate with other staff except with permission. The instruction was plainly a reasonable one made for a legitimate purpose.”

Accordingly, the data protection and Human Rights Act claims were struck out.

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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October 30, 2024 · 6:09 am

Pacini & Geyer v Dow Jones – at the interface between libel and data protection

[reposted from LinkedIn]

This is an important judgment on preliminary issues (the second preliminary issues judgment in the case – the first was on an unsuccessful strike out application by the defendants) in a data protection claim brought by two businessmen against Dow Jones, in relation to articles in the Wall Street Journal in 2017 and 2018. The claim is for damages and for erasure of personal data which is said to be inaccurate.

It is believed to be the first time in a data protection claim that a court has been required to determine the meaning of personal data as a preliminary issue in an accuracy claim.

Determination of meaning is, of course, something that is common in defamation claims. The judgment is a fascinating, but complex, analysis of the parallels between determining the meaning of personal data in a publication and determining the meaning of allegedly defamatory statements in a publication. Although the judge is wary of importing rules of defamation law, such as the “single meaning rule” and “repetition rule” a key part of the discussion is taken up by them.

The single meaning rule, whereby “the court must identify the single meaning of a publication by reference to the response of the ordinary reader to the entire publication” (NT 1 & NT 2 v Google LLC [2018] EWHC 799 (QB)) is potentially problematic in a data protection claim such as this where the claimants argue that it is not the ordinary reader they are concerned about, but a reader who might be a potential business investor.

Similarly, it is not at all clear that the repetition rule, which broadly seeks to avoid a defamatory loophole by which someone argues “but I’m only reporting what someone else said – their words might be defamatory, but mine merely report the fact that they said them”, should carry over to data protection claims, not least because what will matter in defamation claims is the factual matrix at the time of publication, whereas with data protection claims “a claim for inaccuracy may be made on the basis that personal data are inaccurate at the time of the processing complained of, including because they have become misleading or out of date, regardless of whether they were accurate at the time of original publication. In that event, what matters is the factual matrix at the time when relief is sought” (at 66).

Nonetheless, and in a leap I can’t quite follow on first of the judgment, but which seems to be on the basis that the potential problems raised can be addressed at trial when fairness of processing (rather than accuracy) arises, the judge decides to determine meaning on a single meaning/repetition rule basis (at 82-84).

There’s a huge amount to take in though, and the judgment demands close reading (and re-reading). If a full trial and judgment ensue, the case will probably be a landmark one.

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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