Tag Archives: FOI

FOIA’s not the only route

News emerges of a potential judicial review attempt to force disclosure of government Brexit papers not under FOI but under common law and human rights to information

More than three years ago the Supreme Court handed down judgment in a long-running piece of litigation under the Freedom of Information Act 2000 (FOIA). Journalist Dominic Kennedy had attempted to get disclosure from the Charity Commission of information relating to inquiries into George Galloway’s “Mariam Appeal”. The Commission said, in effect, that the absolute exemption to disclosure at section 32(2) of FOIA was the end of the story, while Kennedy argued that Article 10 of the European Convention on Human Rights imposed a positive obligation of disclosure on public authorities, particularly when the requester was a “public watchdog” like the press, and that s32(2) should be read down accordingly to require disclosure in the circumstances (I paraphrase). In his leading opinion Lord Mance gave this stirring introduction:

Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend upon it; likewise the press, NGOs and individuals concerned to report on issues of public interest. Unwillingness to disclose information may arise through habits of secrecy or reasons of self-protection. But information can be genuinely private, confidential or sensitive, and these interests merit respect in their own right and, in the case of those who depend on information to fulfil their functions, because this may not otherwise be forthcoming. These competing considerations, and the balance between them, lie behind the issues on this appeal.

What was most interesting about the judgment in Kennedy, and, again, I disrespectfully heavily paraphrase, was that the Supreme Court basically said (as it has been wont to do in recent years) – “why harp on about your rights at European law, don’t you realise that our dear old domestic friend the common law gives you similar rights?”

the route by which [Mr Kennedy] may, after an appropriate balancing exercise, be entitled to disclosure, is not under or by virtue of some process of remodelling of section 32, but is under the Charities Act construed in the light of common law principles and/or in the light of article 10 of the Human Rights Convention, if and so far as that article may be engaged

This greatly excited those in the information rights field at the time, but since then, there has been little of prominence to advance the proposition that FOIA rights are not the only route [Ed. there’s a great/awful pun in there somewhere] but it did get a positive airing in R (Privacy International) v HMRC [2014] EWHC 1475 (Admin) (on which see Panopticon post here).

Yesterday (12 October) barrister Jolyon Maugham announced that his Good Law Project was seeking donors towards a judicial review application if the government refused to publish information and reports comparing the predicted economic harm of Brexit with the predicted economic benefits of alternative free trade agreements. Keen followers of information rights litigation will note that Tim Pitt-Payne  and Robin Hopkins are instructed: the potential respondents should quake in their boots.

Well worth watching this, and well worth – in my opinion – donating towards the cause.

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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FOI enforcement – if not now, when?

Recent ICO decision notices show the Home Office and MoJ repeatedly simply failing to respond to FOI requests. Surely the time has come for ICO action?

The Information Commissioner’s Office (ICO) recently stated to me that they were not monitoring the Home Office’s and Ministry of Justice’s (MoJ) compliance with the statutory timescales required by section 10 of the Freedom of Information Act 2000 (FOIA)

This was despite the fact that they’d published decision notices about delays by those two government bodies which reported that “The delay in responding to this request will be logged as part of ongoing monitoring of the MoJ’s compliance with the FOIA”. This was not formal monitoring, I was told; rather, it was informal monitoring. Ah. Gotcha.

So what does trigger formal monitoring? Interestingly, the ICO’s own position on this has recently changed, and got a bit stricter. It’s generally meant to be initiated in the following circumstances:

our analysis of complaints received by the ICO suggests that we have received in the region of 4 to 8 or more complaints citing delays within a specific authority within a six month period

(for those authorities which publish data on timeliness) – it appears that less than 90% of requests are receiving a response within the appropriate timescales. [this used to be 85%]

Evidence of a possible problem in the media, other external sources or internal business intelligence.

Despite the apparent increase in robustness of approach, the ICO do not appear to be monitoring any public authorities at the moment. The last monitoring took place between May and July 2016 when Trafford Council were in their sights. Although they are not mentioned in the relevant report, an ICO news item from July last year says that the Metropolitan Police, who have been monitored off and on for a period of years without any real outward signs of improvement, were also still being monitored.

But if they aren’t monitoring the compliance of any authorities at the moment, but particularly the Home Office and the MoJ, one is led to wonder why, when one notes the pattern in recent ICO decision notices involving those two authorities. Because, in 16 out of the last 25 decision notices involving the Home Office, and 6 out of the last 25 involving the MoJ, the ICO has formally issued decision notices finding that the authorities had failed to comply with the FOI request in question, by the time the decision notice was issued.

At this point, it might be helpful to explain the kind of chronology and process that would lead up to the issuing of such decision notices. First, a request must be made, and there will have been a failure by the authority to reply within twenty working days. Then, the requester will normally (before the ICO will consider the case) have had to ask for an internal review by the authority of its handling of the request. Then, the requester will have complained to the ICO. Then, the ICO will have normally made informal enquiries of the authority, effectively “geeing” them up to provide a response. Then, as still no response will have been sent, the ICO will have moved to issuing a formal decision notice. At any point in this process the authority could (and should) still respond to the original request, but no – in all of these cases (again – 16 of the last 25 Home Office decisions, 6 of the last 25 MoJ ones) the authorities have still not responded many months after the original request. Not only does this show apparent contempt for the law, but also for the regulator.

So why does the ICO not do more? I know many FOI officers (and their public authority employers) who work their socks off to make sure they respond to requests in a timely manner. In the absence of formal monitoring of (let alone enforcement action against) those authorities who seem to ignore their legal duties much of the time, those FOI officers would be forgiven for asking why they bother: it is to their credit that bother they still do.

Elizabeth Denham became Information Commissioner in July last year, bringing with her an impressive track record and making strong statements about enforcing better FOI compliance. Her first few months, with GDPR and Brexit to deal with, will not have been easy, and she could be forgiven for not having had the time to focus on FOI, but the pressing question now surely is “if not now, when?”

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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ICO FOI Decision Notices – insufficient attention to detail?

Anyone used to reading Freedom of Information Act 2000 (FOIA) decision notices from the Information Commissioner’s Office (ICO) will be familiar with this sort of wording:

The Commissioner has concluded that the public interest favours maintaining the exemption contained at section x(y) of FOIA. In light of this decision, the Commissioner has not gone on to consider the public authority’s reliance on section z(a) of FOIA.

In fact, a search on the ICO website for the words “has not gone on” throws up countless examples.

What lies behind this approach is this: a public authority, in refusing to disclose recorded information, is entitled to rely on more than one of the FOIA exemptions, because information might be exempt under more than one. An obvious example would be where information exempted from disclosure for the purposes of safeguarding national security (section 24 FOIA) would also likely to be exempt under section 31 (law enforcement).

One assumes that the ICO does this for pragmatic reasons – if information is exempt it’s exempt, and application of a further exemption in some ways adds nothing. Indeed, the ICO guidance for public authorities advises

you [do not]  have to identify all the exemptions that may apply to the same information, if you are content that one applies

Now, this is correct as a matter of law (section 78 of FOIA makes clear that, as a general principle, reliance by public authorities upon the Act’s exemptions is discretionary), and the ICO’s approach when making decisions is understandable, but it is also problematic, and a recent case heard by the Information Tribunal illustrates why.

In Morland v IC & Cabinet Office (EA/2016/0078) the Tribunal was asked to determine an appeal from Morland, after the Cabinet Office had refused to disclose to him minutes of the Honours and Decorations Committee, and after the ICO had upheld the refusal. As the Tribunal noted

The Cabinet Office refused the Appellant’s information request in reliance upon s. 37 (1) (b) and s. 35 (1) (a) of the Freedom of Information Act 2000 (“FOIA”) [and the ICO] Decision Notice found (at paragraph 13) that the exemption under s. 37 (1) (b) was 5 engaged by the request and (at paragraph 25) that the public interest favoured maintaining the exemption “by a narrow margin”.  The Decision Notice expressly did not consider the Cabinet Office’s reliance on s. 35 (1) (b). [emphasis added]

The problem arose because the Tribunal found that, pace the ICO’s decision, the exemption at section 37(1)(b) was not engaged (because that section creates an exemption to disclosure if the information relates to the conferring by the crown of an honour or dignity, and the information request related to whether an entirely new honour should be created). But what of the exemption at s35(1)(b)? Well, although it would not always be the case in similar circumstances, here the Tribunal and the parties were in a bind, because, as the Tribunal said

We are left with a situation where, as the Decision Notice did not reach a conclusion on that issue, none of the parties appear to have regarded s. 35 (1) (a) as being seriously in play in this appeal, with the effect that we have received limited argument on that issue

There is no power to remit a decision to the ICO (see IC v Bell [2014] UKUT 0106 (AAC) (considered in a Panopticonblog post here), so the Tribunal had to make findings in relation to s35, despite a “concern whether it is right to do so”. On the expressly limited evidence before it it found that the exemption was not engaged at the time of the request, and, accordingly, upheld Morland’s appeal, saying that it

[regarded] the failure of the Decision Notice to determine a key issue between the parties as rather unsatisfactory

Whether this will lead the ICO to revisit its apparent policy of, at least at times, focusing on only one of multiple claimed exemptions remains to be seen. It’s not often that I have sympathy with the Cabinet Office when it comes to matters of FOIA, but there is a modicum here.

Nonetheless, I think what this case does suggest is that a public authority should, when faced with an appeal of an ICO Decision Notice upholding a FOIA refusal, give strong consideration to whether it needs to be joined to the appeal (as, admittedly, the Cabinet Office was here) and to make sure that its response to the appeal (under part 27 of the Tribunal Rules) fully deals with all applicable exemptions, notwithstanding the contents of the Decision Notice. In this way, the Tribunal can, where necessary, take as fully-apprised a decision as possible on all of those exemptions.

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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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

Big Brother is misleading you

The best books… are those that tell you what you know already…

Big Brother Watch (BBW) is a campaigning organisation, a spin-off from the right-wing lobby group The Taxpayers’ Alliance, described as a “poorly disguised Conservative front”, a large part of whose funds come “from wealthy donors, many of whom are prominent supporters of the Conservative party“. To an extent, that doesn’t matter to me: BBW has done a lot to highlight privacy issues which chime with some of my own concerns – eg excessive use of CCTV, biometrics in schools – but regularly they rail against local authority “databreaches” in a way I think is both unhelpful and disingenuous.

The latest example is a report issued this week (on 11th August 2015) entitled “A Breach of Trust – how local authorities commit 4 data breaches every day”. Martin Hoskins has already done an excellent job in querying and critiquing the findings

At first glance, it looks impressive. It’s almost 200 pages long. But, and this is a big but, there are only a few pages of analysis – once you get past page 12, a series of annexes contain the responses from each local authority, revealing how minor the vast majority of the reported incidents (occurring between April 2011 and April 2014) actually were.

BBW started work on this report by submitting FOI requests to each local authority in June 2014. Quite why it has taken so to publish the results, bearing in mind that FOI requests should be returned within 20 days, is beyond me. Although BBW claims to have received a 98% response rate, some 212 authorities either declined to provide information, or claimed that they had experienced no data breaches between 2011 and 2014.

But plenty of media outlets have already uncritically picked the report up and run stories such as the BBC’s “Council data security ‘shockingly lax'” and the Mail’s “Councils losing personal data four times a day”. Local news media also willingly ran stories about their local councils’ data.

However, my main criticism of this BBW report is a fundamental one: their methodology was so flawed that the results are effectively worthless. Helpfully, although at the end of the report, they outline that methodology:

A Freedom of Information request was sent to all local authorities beginning on the 9th June 2014.

We asked for the number of individuals that have been convicted for breaking the Data Protection Act, the number that had had their employment terminated as the result of a DPA breach, the number that were disciplined internally, the number that resigned during proceedings and the number of instances where no action was taken.

The FOI request itself asked for

a list of the offences committed by the individual in question

The flaw is this: individuals within an organisation can not, in general terms “break” or “breach” the Data Protection Act 1998 (DPA). An employee is a mere agent of his or her employer, and under the DPA the legal person with the general obligations and liabilities is the “data controller”: an employee of an organisation does not have any real status under the DPA – the employer will be the “person who determines the purposes for which and the manner in which personal data are processed”, that is, the data controller. An individual employee could, in specific terms, “break” or “breach” the DPA but only if they committed an offence under section 55, of unlawfully obtaining etc. personal data without the consent of the data controller. There is a huge amount of confusion, and sloppy thinking, when it comes to what is meant by a data protection “breach”, but the vast majority of the incidents BBW report on are simply incidents in which personal data has been compromised by the council in question as data controller. No determination of whether the DPA was actually contravened will have been made (if only because the function of determining whether the Act has been contravened is one which falls to the Information Commissioner’s Office, or the police, or the courts). And if BBW wanted a list of offences committed, that list would be tiny.

To an extent, therefore, those councils who responded with inaccurate information are to blame. FOI practitioners are taught (when they are well taught) to read a request carefully, and where there is uncertainty or ambiguity, to seek clarification from the requester. In this instance, I did in fact advise one local authority to do so. Regrettably, rather than clarifying their request, BBW chose not to respond, and the council is listed in the report as “no response received”, which is both unfair and untrue.

I am not saying that data security and data protection in councils is not an area of concern. Indeed, I am sure that in some places it is lax. But councils deal with an enormous amount of sensitive personal data, and mistakes and near misses will sometimes happen. Councils are encouraged to (and should be applauded for) keeping registers of such incidents. But they shouldn’t disclose those registers in response to ill-informed and badly worded FOI requests, because the evidence here is that they, and the facts, will be misleadingly represented in order to fit a pre-planned agenda.

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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Non-compliant FOI compliance?

What does it mean to “comply” with an FOI request? This would appear to be a rather arid question, but when the provisions of section 14(2) of the Freedom of Information Act 2000 (FOIA) come into play, it is not perhaps as unambiguous as one might think.

Section 14(2) provides that

Where a public authority has previously complied with a request for information which was made by any person, it is not obliged to comply with a subsequent identical or substantially similar request from that person unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request [emphasis added]

I confess that, until recently, as both a practitioner and an observer, I had never given this too much thought: surely a public authority complies with a request by complying with its general obligations under FOIA? Namely, confirming whether requested information is held, and, where it is, either communicating it to the requester or providing a refusal notice, while at the same time providing appropriate advice and assistance.

However, it appears (and apologies to anyone who’s known this for ages – I didn’t) that the Information Commissioner’s Office (ICO) take a different view on section 14(2). Their approach, reflected in guidance, is that for the purposes of section 14(2) at least, a public authority has only previously complied with a request when it has either disclosed the information, or confirmed that it is not held:

A public authority may only apply Section 14(2) where it has either;
– previously provided the same requester with the information in response to an earlier FOIA request; or
– previously confirmed the information is not held in response to an earlier FOIA request from the same requester.
If neither of these conditions applies then the public authority must deal with the request in the normal manner.

So, if the authority has previously refused to disclose information, on the valid basis of the application of an exemption or exemptions, it cannot refuse to deal with a subsequent identical request, and it must (one assumes, and unless circumstances have changed) issue a fresh, identical, refusal notice.

This approach is also reflected in a recent decision notice relating to a request to the Department for Work and Pensions (DWP) for the names of charities and companies who have given placements to Mandatory Work Activity or Help to Work participants. DWP had replied to a previous almost identical request, refusing to disclose the information on the basis of the exemptions at section 29(1)(a), 29(1)(b), 36(2)(c) and 43(2) of FOIA. This time, they refused to reply to the request citing section section 14(2). Not on, said ICO:

the DWP can only rely on section 14(2) if, inter alia, it had previously complied with the same or substantially similar request by supplying the requested information to the complainant or confirming it was not held

As the previous request had resulted in the applications of exemptions to refuse disclosure, section 14(2) was not engaged. This was despite the fact that – as DWP pointed out – a previous ICO decision notice had actually said that its position was that

the term ‘previously complied with a request for information’ refers to whether an authority has responded to the previous requests by either providing information or by issuing a refusal notice (emphasis added)

ICO explained this discrepancy by saying first, they were not bound by previous decisions, and second, that the earlier decision was “erroneous” and contrary to their own guidance.

I suspect the ICO are drawing a distinction between the concepts of “complying with a request” (i.e. fulfilling it) and “complying with FOIA obligations”. and I’m not completely sure I’m in disagreement with the ICO’s settled position. But I think I am, if only because, followed to its logical extension, we would be saying that a public authority has not “complied” with any request for information, if it has validly applied exemptions and refused to disclose the information. This lacks logic: it will be interesting to see if DWP appeal.

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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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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Porsches, farts and environmental information

A quick post on what I think is a rather remarkable Information Tribunal ruling.

The First-tier Tribunal (Information Rights) (“FTT”) has recently handed down a judgment on a case relating to a request for information sent to the Driver and Vehicle Standards Agency (DVSA) about a safety evaluation of an apparent throttle malfunction in the Porsche Cayman. The request was refused by DVSA on the grounds that section 44 of the Freedom of Information Act 2000 (FOIA) provided an absolute exemption to disclosure, by way of existing restrictions on disclosure of this kind of information within the Enterprise Act 2002. Upon appeal, the Information Commissioner’s Office (ICO) upheld this refusal (pointing out that in fact the correct public authority was not the DVSA, but rather the Department of Transport, of which DVSA is an executive agency).

However, when the request exercised his right of appeal to the FTT, he introduced an argument that in fact the proper regime under which his request should have been considered was the Environmental Information Regulations 2004 (EIR) rather than FOIA, on the grounds that his request concerned an activity that directly affected the environment, namely an activity to regulate vehicle noise emissions. The ICO resisted this, on the basis that

the disputed information concerned a safety test of a certain vehicle “which is not an activity which affects, or is likely to affect, the elements and factors described in Regulation 2(1)(a) or (b) EIR”

This in itself was an interesting argument, touching on issues regarding the Glawischnig remoteness test. This refers to the judgment of the Court of Justice of the European Union in the 2003 case C-316/01 (Eva Glawischnig and Bundesminister für soziale Sicherheit und Generationen) which, observing that Article 2(a) of Directive 90/313 (to which the EIR give UK domestic effect)

classifies information relating to the environment within the meaning of that directive in three categories: information on the state of water, air, soil, fauna, flora, land and natural sites (‘the first category’), information on activities or measures affecting or likely to affect those environmental factors (‘the second category’), and information on activities or measures designed to protect those factors (‘the third category’)

said that

Directive 90/313 is not intended…to give a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with one of the environmental factors mentioned in Article 2(a). To be covered by the right of access it establishes, such information must fall within one or more of the three categories set out in that provision. [Emphasis added]

However, the FTT in the instant case decided, contrary to the positions of all the parties that “the safety test in this case is not an activity, which can be said to affect the elements of the environment” (the appellant was arguing essentially that “his request concerned an activity that directly affected the environment, namely an activity to regulate vehicle noise emissions”), the EIR were engaged merely because the safety test first required a car to be started, which by extension meant that started engine would produce emissions:

in order to test the issue complained of (i.e. the vehicle throttle response under specific conditions) the vehicle must be driven, or at the very least the engine must be running.
Consequently, by conducting the safety test:
– the DVSA caused emissions by driving the vehicle (r.2(1)(b));
– at the very least those emissions affected the air (r.2(1)(a));
– they did so through a measure (a safety test) which was likely to affect the elements (air) (r.2(1)(c));

But following this argument, the EIR would tend give the public, pace the ruling of the CJEU in Glawischnig, “a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with [the environment]”? Information, say, held by the DVLA on the number of people who passed their driving test first time would be environmental because by running the driving test the DVLA caused emissions by requiring the tester to drive the car, at the very least those emissions affected the air and they did so through a measure (a driving test) which was likely to affect the elements (air). Or consider DEFRA conducting TB tests on cattle – in order to conduct the test the inspector must travel to a farm, and by doing so DEFRA cause emissions by causing a vehicle to be driven (or a train ride to be taken etc). At the very least those emissions affect the air, and they do so through a measure which is likely to affect the elements (air). Or this: in order to deliver mail, the Royal Mail must drive vehicles which cause emissions. At the very least those emissions affect the air, and they do so through a measure (their policy to use motor vehicles to deliver the mail) which is likely to affect the elements.

What next? Is information on the statement about the benefits of dietary fibre in the human diet environmental information, because by giving it the Department of Health caused more farts (emissions) which affect the air through a measure (the statement) which was likely to affect the (elements) air?

Maybe I’m being silly, but I don’t think I am. Rather, I think the FTT are, and I wonder if the judgment will be appealed.

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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Talk on the future of FOI

Mostly because I haven’t posted much on this blog recently, I’m uploading a version of a talk I gave at the recent conference of the National Police Chiefs Council (NPCC). I was asked to talk, alongside FOIKid Bilal Ghafoor, and tribunal judge David Farrer QC, about what the teenage years of the Freedom of Information Act 2000 might look like. After I’d reflected on this, I ended up rather more optimistic than I expected. YMMV, as they say.

Before I talk about the future, and FOI as it enters those awkward teenage years, I wanted to reflect a bit on its early infanthood. Has it achieved what it was hoped it would achieve? Has it worked well?

As is sometimes overlooked, Parliament declined to enact a purpose clause into the 2000 Freedom of Information Act (against the urging of the then Information Commissioner Elizabeth France). So when we talk about whether FOIA has achieved its aims, we are, to an extent, second guessing what Parliament intended. However, in 2012 the Justice Committee conducted post-legislative scrutiny of FOIA, and the Ministry of Justice (drawing on the original White Paper which preceded the Act) identified four objectives for it:

  • openness and transparency;
  • accountability;
  • better decision making;
  • and public involvement in decision making, including increased public trust in decision making by government

And the committee felt that FOIA has achieved the first three but the secondary objective of enhancing public confidence in Government had not been achieved, and was unlikely to be achieved.

And I think this is broadly right: we have seen more openness and transparency – when working well together FOIA feeds into the Transparency Agenda and vice versa. Huge amounts of public sector information have been made available where once it wasn’t. And with openness and transparency come, or should come more accountability and better decision making. But that final objective, involving increasing public trust in decision making, has almost been achieved in the negative – and that is partly to do with how the public hear about FOIA. Many, probably most, major FOIA stories run by the media almost inevitably involve scandal or highlight wasteful practice, and often go hand in hand with litigation aimed at preventing disclosure. The MPs expenses scandal was one of FOIA’s major victories (although, let us not forget, it was a leak to the Telegraph, rather than a final FOIA disclosure, that led to the full details coming out) but while it enhanced FOIA’s status, it’s hard to say it did anything but greatly damage public trust in government, and more widely, politicians.

But the Justice Committee report identified something else, and something very relevant when we start to look to the future of FOIA. It stated that “the right to access public sector information is an important constitutional right” – something which Lady Justice Arden also recognised in her recent Court of Appeal judgment in the Dransfield case. And when something is identified as part of our constitution, it becomes pretty hard to remove it, or amend it to any great extent. The Conservative government appear to be experiencing this at the moment, as their plans to repeal the Human Rights Act have been stalled. The Human Rights Act can also be said to have achieved constitutional status – by incorporating the European Convention on Human Rights into the domestic law of the UK, it represented a major shift in how individual rights are protected under British law. It may well end up being the case that the only way the Act could be repealed would be by replacing it with something essentially the same (or by pulling out of the Convention, and pulling out of Europe) and even then, as Lord Bingham said

“Which of these rights…would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any them un-British?”

The rights enshrined in the European Convention are fundamental, and they’re not going to go away, and when one considers that one of them – Article 10 – contains not just the right to freedom of expression, but the right to receive and impart information (subject to necessary and lawful conditions) one can begin to perceive that a Freedom of Information Act helps give effect to this fundamental right.

A majority of the Supreme Court, in the Kennedy judgment last year, went even further, and said that a (qualified) right to receive information from a public authority was not just enshrined in the Convention Rights, but existed (and always has existed) under the Common Law.

What I’m saying, by going off on a somewhat legalistic tangent, is that the right to request and receive public sector information is so fundamentally embedded in our legal and constitutional landscape, that I don’t see any realistic challenge to the principle (and I doubt any of you would). But it also means that any tinkering with the right becomes correspondingly difficult. And this is why although I think FOI will have some teenage tantrums, it won’t have a huge teenage meltdown and emerge from its bedroom a completely different individual.

But with that important caveat, what might we see?

Well, under Francis Maude in the Cabinet Office and Chris Grayling at the Ministry of Justice (although Lib Dem Simon Hughes had the actual FOI brief) we saw significant strides, and a lot of fine words, about the importance of transparency, with Maude even saying in 2012

“I’d like to make Freedom of Information redundant, by pushing out so much data that people won’t have to ask for it”

But they have all gone on to other things – Maude to the Lords, Grayling to Leader of the Commons and Simon Hughes back to his day job, after losing his seat last month. Will this lead to changes? Well, still very much in post is David Cameron, and he has spoken before about his concerns about FOI “furring up the arteries of government” and of FOI’s “buggeration factor”, which doesn’t bode well for those of us who support the Act. And minister with responsibility for FOI (under Michael Gove as Justice Secretary) is Dominic Raab. Raab is strong on civil liberties and is known to be a frequent user of FOI in his parliamentary and constituency work. One of his targets was the Police Federation – in 2011 he sent requests to all forces asking for figures on the number of police staff working full-time for the Federation. But Gove is reputed not to be so keen on FOI – indeed, in 2011 his then Department of Education was found to have used private email accounts to conduct government business, apparently in the belief that this took them outside FOIA.

It does seem clear that any changes to FOIA are not high on the government’s list of priorities: there was nothing in the Conservatives’ election manifesto, and there have been no obvious pronouncements in the early days.

For a flavour though of what might be on the cards it’s instructive to go back to the government response to the post-legislative scrutiny. On the subject of FOI cost limits there was a suggestion that further factors might be taken into account – so, added to the costs of locating and retrieving information it might become possible to take into account consideration and redaction time. This could have more profound effects that is immediately apparent – as most of you will know, those two activities can take up a large amount of time, and if that change were brought in I think we would see a huge increase in cost refusals.

Another related suggestion was that for costs purposes requests from the same person or group of persons could be aggregated EVEN where there was no similarity between the subject of the requests. It is not hard to see how this would be devastating for some journalists who make use of FOI.

And a further suggestion was the introduction of fees for appealing a case to the Information Tribunal. This would be unlikely to affect public authorities, but requesters could well be dissuaded. No doubt some of those would be the more speculative, persistent or frivolous of requesters, but I would be concerned that some well-intentioned requesters would decide not to exercise their rights if such a change were made.

On the more “pro-FOI” side, we are likely to see further public authorities made subject to FOIA. ACPO of course came in in 2012, Network Rail this year, and Theresa May has made clear that she would like to see the Police Federation covered.

But also discussions need to be had about the extent to which private contractors performing public functions are caught by FOI. The government has previously indicated that it thinks this can be achieved through appropriate contractual provisions, but I’m dubious – without a clear legal obligation, and associated enforcement mechanism, I struggle to see why this would happen.

So, despite my optimism that the fundamental principles of FOI are now constitutionally embedded, I don’t necessarily think there will be no changes. But I continue to think they will be essentially minor, and this is because I think there is a further factor which protects those fundamental principles. As I said, Dominic Raab has traditionally used FOI to gather information to better help him in his job. And thousands and thousands of other people do so. Journalists are the most obvious example (and when it comes to defenders of the right to receive information you couldn’t ask for a more vocal group) but campaign groups, other public authorities, academics and private citizens do so. And for this reason FOI is popular. Unlike the Human Rights Act there are no (or very few – I don’t know of any) journalists campaigning for FOIA’s repeal. Politicians don’t campaign on a platform of opposition to the right to receive public information.

FOI does promote better openness and transparency; better accountability; better decision making, and even if it hasn’t yet, and probably never will, improve the public trust in government decision-making, one thing which would further destroy that trust would be changes to make public authorities less accountable. And the media and campaigners would be lined up to make the point vociferously.

FOI may, in its teenage years, suffer from its own equivalent of angst, anger and acne, but it will have strong friends to support it.

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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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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Filed under Article 10, Freedom of Information, journalism, police