Tag Archives: Tribunal

June 17, 2020 · 6:24 pm

Upper Tribunal on enforcement of First-tier Tribunal FOIA decisions

What happens if a public authority does not comply with steps specified in a decision notice issued by the Information Commissioner under the Freedom of Information Act 2000 (FOIA)? Assuming that no appeal is brought by the authority, then section 54 of FOIA provides that, in such circumstances, the Commissioner may (not “must” – this is a power, not a duty) certify in writing to the High Court (or, in Scotland, the Court of Session) that the authority has failed to comply with that notice, and the court may (after inquiring into the matter) deal with the authority as if it had committed a contempt of court.

This much is, relatively, straightforward, but what happens if the Commissioner’s decision notice doesn’t specify steps the public authority should take – for instance (and most normally) where the Commissioner doesn’t uphold a complaint by the requester, and the latter appeals to the First-tier Tribunal (FTT), with the FTT subsequently upholding the appeal,  substituting its own decision for that of the Commissioner, and itself specifying steps to be taken by the public authority? In those circumstances, who is responsible for (or at least has the power of) enforcement of those steps? Is it the Commissioner, or the FTT itself?

This is not a hypothetical question – the FTT will frequently disagree with the Commissioner – sometimes, of course upholding an appeal by the public authority, but at other times upholding a requester’s appeal, and ordering the public authority to take steps which were not originally specified by the Commissioner. 

The answer, says the Upper Tribunal, in Information Commissioner v Moss and the Royal Borough of Kingston upon Thames [2020] UKUT 174 (AAC), is that it is for the FTT to enforce, on the (slightly circular sounding) grounds that it has the power to do so, and the Commissioner doesn’t.

The FTT’s power to enforce emanates from paragraph 61(4) of FOIA, which provides that where a person fails to do something, in relation to proceedings before the FTT on an appeal, and if those proceedings were (instead) proceedings before a court which had a power to commit for contempt, and the failure would constitute contempt (such as failing to comply with steps in a substituted decision) the FTT may certify the offence to the Upper Tribunal (in Moss, which related to matters before section 61 was amended by the Data Protection Act 2018, the power was to certify to the High Court, but nothing turns on this).

By contrast, for the Commissioner to control the enforcement of the FTT’s decision would be to offend the “fundamental constitutional principle” as enunciated by Lord Neuberger (in R (Evans) v Attorney General [2015] AC 1787 – also a FOIA case, of course) that “a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone” (including, one might add, by the Commissioner, upon exercise of her power (not, remember, her duty) to enforce her own decisions by certifying to the High Court).

In Moss Upper Tribunal Judge Jacobs did not have to decide who is responsible for enforcing a decision notice if the FTT dismisses an appeal against it (i.e. where the Commissioner’s original decision, and any specified and required steps are unchanged). He merely noted that “there is authority that, even if an appeal against a decision is dismissed, it thereafter derives its authority from the tribunal’s decision” (which to me, looks like strong obiter indication that he would have, if required to do so, found that the FTT, and not the Commissioner, would also have the enforcement power in those circumstances).

I can recall (purely anecdotally) occasions where successful appellants to the FTT have bemoaned subsequent failure by public authorities promptly to take the steps specified by the FTT in its decision. The position now seems clear – if those steps need enforcement to make them happen, it is to the FTT that the aggrieved requester should turn.

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

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June 19, 2019 · 10:18 am

Information Tribunal rejects data subject appeals under new Data Protection Act

The Information Tribunal has recently heard the first applications under the Data Protection Act 2018 for orders regarding the Information Commissioner’s handling of data protection complaints. As I write on the Mishcon de Reya website, the Tribunal has peremptorily dismissed them.

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January 28, 2017 · 2:00 pm

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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August 8, 2015 · 10:22 am

FOI, data protection and rogue landlords 

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

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

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

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

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

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

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

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

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

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

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