The Black Spider Letters – Part IV

This is the final in a series of four blog posts looking at the Supreme Court’s decision in R (Evans) v HM Attorney General.  The first post went through the background to the case, the second post focused on the Court’s decision in respect of section 53 of the FOIA and the third post looked at the Court’s decision in respect of Regulation 18(6) of the EIRs.

This was a significant decision for a number of reasons.  It significantly restricts section 53 of the FOIA and in essence makes it virtually impossible for the Executive to make use of it.  While this might seem, on the face of it, really good for transparency; it comes with a serious warning.  In 6 weeks time the UK will have a new Government and undoubtedly one of the first things that this new Government will want to do is address the decision of the Supreme Court in this case.  The current Government, which may be in its final hours, has previously hinted at making changes to the FOIA that would have a devastating effect on the effectiveness of FOI in the UK.  While addressing this issue the Government might be tempted to make other changes to FOI at the time.

While I fundamentally disagree with the principal that the Executive should be able to veto a decision made by the judiciary in respect of a cause in which it was a party, we do live in a system where Parliament has supremacy.  It is clear that Parliament intended that the Executive should be able to, in certain cases, veto a decision by the Tribunal that information should be disclosed.  For that reason, I disagree with the interpretation given to section 53 by Lords Neuberger, Kerr and Reed.  I find the position of Lord Mance and Lady Hale more in keeping with the intentions of Parliament.  It is my opinion that they struck the right balance between the intention of Parliament and the Rule of Law given the system in the UK and the wording of the statute.

The Regulation 18(6) issue is more problematic for the Government, and here I do think that the 6 Justices of the Supreme Court who held that Regulation 18(6) was incompatible with EU law got it correct.  The wording in Article 6 of the Directive clearly does not envisage the situation where the Executive, who will be the public body holding the information in question, is able to veto the decision of the Court.  It also seems clear from the wording of the Directive that it being open to a requester to judicially review the decision of the Executive to issue a certificate is not sufficient to comply with the review requirements therein.  Part of being a member of the European Union is to accept that EU law has supremacy, in passing the European Communities Act the UK Parliament agreed to have EU law take precedence over Acts passed by it.  Ultimately the UK Parliament is still supreme and would only need to repeal the European Communities Act (which would also necessitate the UK leaving the European Union, but that’s a whole other blog) in order to deal with the Supreme Court’s decision in respect of Regulation 18(6).

What is the impact for Scotland?  The decision in R (Evans) v HM Attorney General is technically not binding upon the Scottish Courts.  Section 41(2) of the Constitutional Reform Act 2005 makes it clear that decisions of the Supreme Court on appeal form Courts in one part of the United Kingdom are “to be regarded as the decision of a court of that part of the United Kingdom”; there is an exemption to this which is not relevant here. Therefore, only decisions issued by the Supreme Court in Scottish cases are considered binding in Scotland (although in cases from other parts of the UK will be highly persuasive on the Scottish Courts).  As this was a case on appeal from England in respect of FOIA and the EIRs, it is only binding on the Courts in England and Wales.

Section 52 of the Freedom of Information (Scotland) Act 2002 (FOISA) provides the First Minister a similar power to that contained in section 53 of the FOIA in respect of decision notices served on the Scottish Administration.  The wording in section 52 is almost identical to that in section 53.  The main difference is around timescales, in that the First Minister has longer than the accountable person under FOIA to issue a certificate.  So, section 52 of FOISA is probably in a precarious position following the decision of the Supreme Court.

The Scottish legislation could face further hurdles that the UK legislation did not due to the constitutional position of the Scottish Parliament.  The Scottish Parliament is a creature of Statute, it has only those powers which are given to it by the UK Parliament and cannot do anything which exceeds those powers.  Section 29(2)(d) of the Scotland Act 1998 provides that no Act of the Scottish Parliament may be incompatible with the rights in the European Convention on Human Rights as given effect to by the Human Rights Act 1998.  There could be a viable challenge to section 52 under Articles 6 (the right to a fair trial) and 10 (freedom of expression).  If it were to be found that the Scottish Administration being able to veto the decision of the Commissioner and/or the Courts was incompatible with either or both of those Rights then section 52 would have no effect as it would be outside of the Scottish Parliament’s legislative competence.  It would be much harder for the Scottish Parliament to get round that, and it would probably require the UK Parliament to legislate on its behalf.

Regulation 17(2)(e) of the Environmental Information (Scotland) Regulations 2004 (the Scottish EIRs) has the same effect as Regulation 18(6) of the EIRs in that it applies section 52 of FOISA to the Scottish EIRs.  However, like the EIRs, the Scottish EIRs are designed to implement the 2002 Directive into domestic law.  The supremacy of EU law is further underlined by the Scotland Act 1998, which provides in section 57(2) that the Scottish Ministers have no power to make subordinate legislation (which the Scottish Regulations are) which is incompatible with EU law.  I don’t think that the Scottish Courts would find differently from the Supreme Court in respect of section 52 being incompatable with EU law when related to requests under the Scottish EIRs.  In the event that the Scottish Ministers appealed to the Supreme Court it seems unlikely that it would conclude differently (although it should be noted that at least one Justice would have found that Regulation 18(6) did not violate EU law).

Because of the timing of the Supreme Court’s decision, it means that there is little that can be done to prevent disclosure of the information that the Upper Tribunal decided should be disclosed.  The UK Parliament has now prorogued and dealing with the Supreme Court’s decision will require primary legislation. Parliament will be dissolved as soon as we hit 30 March; that means all of he seats will become vacant and there will be no MPs to pass legislation.  The deadline for the Government to comply with the Supreme Court’s decision expires before the election. Therefore, it seems almost inevitable that we will get to see the contents of these letters.

It should be noted that FOIA has been amended to make the correspondence from the Prince of Wales subject to an absolute exemption.  However, that does not affect the position under the EIRs.  The exceptions under the EIRs are different from the exemptions under the FOIA, although they broadly enable the same types of information to be withheld.  What this means though is that it is possible that further letters written by the Prince of Wales which relate to environmental matters may be disclosed in the future.

It is also worth noting that FOISA has not been amended to make the equivalent exemption in respect of correspondence with the Monarch, the heir to the throne or the next in line (i.e. The Queen, Prince Charles and Prince William) an absolute one.  It had been proposed by the Scottish Government, but was dropped.  Therefore, the full range of correspondence between the Prince of Wales and the Scottish Ministers is theoretically obtainable under FOISA and the Scottish EIRs, subject to the public interest test.

The Black Spider Letters – Part III

This is the third in a series of four blog posts looking at the Supreme Court’s decision in R (Evans) v HM Attorney General.  The first post went through the background to the case, while the second post focused on the Court’s decision in respect of section 53 of the FOIA.  This third post will look at the Court’s decision in respect of Regulation 18(6) of the EIRs.

By a majority of 6:1 the Supreme Court held that the certificate issued by the Attorney General under Regulation 18(6) was invalid.  The arguments in respect of Regulation 18(6) related specifically to European law and to the Directive that they seek to implement.

Article 6 of the Directive makes provision for ‘Access to Justice’ in respect of Environmental Information.  It provides (1) that where a public body refuses to make environmental information available there must be a process whereby the decision can be ‘reviewed administratively by an independent and impartial body established by law’.  The right to complain to the Information Commissioner under section 50 of the FOIA (which extends to the EIRs) would meet this requirement; (2) that over and above the administrative review of the decision that there is provision for further review before a court or another independent or impartial body established by law.  This would be covered by the right of appeal against a decision of the Information Commissioner to the First-Tier Tribunal; and (3) the decision under (2) must be capable of becoming final and binding upon the public body that holds the information.

The effect of section 53 as applied to environmental information under Regulation 18(6) of the EIRs is to mean that the decision of the Tribunal (or whichever appellate Court or Tribunal last hears an appeal) ceases to be final or binding on the public body holding the information; the Certificate cancels out the decision of the Court or Tribunal.  The Attorney General had argued that the provisions of section 53 and Regulation 18(6) in respect of Environmental Information did not violate the terms of the Directive; he argued that, despite the effect of the Certificate being to set aside the decision of the Tribunal, there was still the ability for a decision of a Court to become final and binding upon the public body concerned.  He based that averment on the existence of Judicial Review: a decision by an accountable person to exercise their power under Regulation 18(6) as read with section 53 is open to be judicially reviewed.

In respect of the Attorney General’s argument, Lord Neuberger said at [105]:

A domestic judicial review does not normally involve reconsideration of the competing arguments or “merits”. However, it seems to me clear that article 6.2, with its stipulation that the court should be able to “review” the “acts and omissions of the public authority concerned”, requires a full “merits” review. Even assuming in the Attorney General’s favour that, on a domestic judicial review, the court could, unusually, consider the merits, it gets him nowhere at least in a case such as this, where a tribunal has ruled that the information should be disclosed and the certificate is merely based on the fact that he disagrees with the final decision of the Upper Tribunal. In such a case, a court would be bound to conclude that the certificate was not soundly based as a court of record had already decided that very point as between the applicant and “the public authority concerned”.

Lord Mance said at [148]:

what becomes final in the event of judicial review failing, is not a decision on the merits that the Upper Tribunal’s decision is wrong. It is the conclusion that there is nothing wrong with the minister’s or Attorney General’s decision to override the Upper Tribunal’s decision. That cannot be consistent with the evident intention of article 6(2) – to provide means of recourse to a court or similarly independent and impartial system, which will decide, one way or the other, on the merits.

As a consequence of the views of 6 of the 7 Justices who heard the case, Regulation 18(6) is no more. It has ceased to be. It rests in peace.  It is an ex-Regulation.

The Black Spider Letters – Part II

This is the second in a series of four blog posts looking at the Supreme Court’s decision in R (Evans) v HM Attorney General.  The first post went through the background to the case and this post will focus on the Court’s decision in respect of section 53 of the FOIA.

By a majority of 5:2 the Supreme Court held that the certificate issued by the Attorney General was invalid.  However, there was a split among the 5 as to the reasons for the certificate being invalid.  Lords Neuberger, Kerr and Reed were in agreement with one another, while  Lord Mance and Lady Hail found that the Certificate was invalid for different reasons.  Lords Wilson and Hughes disagreed entirely and would have allowed the Attorney General’s appeal.

The reasoning of Lord Neuberger (with home Lords Kerr and Reed agreed)

The Justices here looked at two constitutional principals which are at the cornerstone of our democracy and are at the very centre of the Rule of Law.  The first of those principals is that decisions of a Court are binding upon the parties involved, subject to rights of appeal (and as Lord Neuberger pointed out, a Statute passed by Parliament given the supremacy of Parliament in our democracy).  The second of those principals is that the decisions of the Executive are reviewable by the Judiciary, not the reverse.

Lord Neuberger said, at paragraph [52], that the way in which the Attorney General interpreted section 53 of the FOIA

 “flouts the first principle and stands the second principle on its head. It involves saying that a final decision of a court can be set aside by a member of the executive (normally the minister in charge of the very department against whom the decision has been given) because he does not agree with it. And the fact that the member of the executive can put forward cogent and/or strongly held reasons for disagreeing with the court is, in this context, nothing to the point: many court decisions are on points of controversy where opinions (even individual judicial opinions) may reasonably differ, but that does not affect the applicability of these principles.”

He went on to state at paragraph [58] that “section 53 falls far short of being “crystal clear” in saying that a member of the executive can override the decision of a court because he disagrees with it.”  This drew on a line of authority, fully set out in paragraphs [53] – [57], that concludes unless Parliament has made it crystal clear that it is legislating contrary to the rule of law it is to be presumed that it is not doing so.

Lord Neuberger went on to consider previous authorities where the Court of Appeal had considered the question of whether Parliament had “intended [that] a member of the executive to be able freely to consider, or reconsider, for himself the very issues, on the same facts, which had been determined by another person or a tribunal.” [60]

Lord Neuberger concluded that section 53 of the FOIA  does not permit the accountable person mentioned therein to issue a certificate “simply because, on the same facts and admittedly reasonably, he takes a different view from that adopted by a court of record after a full public oral hearing.”  He also noted that the basis for this conclusion could not have bene unknown to Parliament at the time the FOIA was passed.

Lord Mance (with whom Lady Hale agreed)

The conclusion reached by Lord Neuberger was different to that which was reached by Lord Mance (who Lady Hale agreed with).  They found that the accountable person was able to issue a certificate under section 53 of the FOIA simply because they disagreed with the Tribunal’s decision; however, that where the certificate was issued in respect of findings of fact or rulings of law which were fully explained would require an extremely clear justification.  Lord Mance found that the Certificate issued by the Attorney General under section 53 of the FOIA did “not engage with or give any real answer to [the Upper Tribunal’s] closely reasoned analysis and its clear rebuttal of any suggestion that a risk of misperception could justify withholding of disclosure.”

While the Attorney General, or indeed any other accountable person as defined by section 53, could issue a certificate under section 53 because he disagreed with the findings of the Tribunal, on the same facts and arguments as were before the Tribunal, he did not justify his decision enough to enable the certificate to stand and so the certificate was invalid.

The Black Spider Letters – Part I

Yesterday, 26 March 2015, the UK Supreme Court issued its much anticipated decision (well, certainly within Information Law circles) in R (on the application of Evans) and another v HM Attorney General.  I had intended to deal write just one blog post on this decision, but as I began to write I felt that it deserved to be split up into more than one post; so, there will be four parts.  The first part will deal with the background to the case, including dealing with the relevant statutory provisions.  The second part will look at the Supreme Court’s decision in respect of section 53 of the Freedom of Information Act 2000.  The third will look at the decision as it relates to Regulation 18(6) of the Environmental Information Regulations 2004 while the final part will be a more general comment.

On 1 January 2005 the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIRs) entered into force.  In the case of FOIA it provides individuals with a statutory right to receive information held by public bodies unless the information is specifically exempt under one of the statutory exemptions in Part 2 of the Act.  The EIRs provide for a statutory right of access to ‘Environmental Information’ held by public bodies, subject to certain exceptions set out in the EIRs.  The EIRs implement into UK law the provisions of Directive 2003/4/EC of the European Parliament and the Council of 28 January 2003 on public access to environmental information (the Directive).  These Regulations in turn implement into European Law the provisions of the Aarhus Convention.

In April 2005 Rob Evans, a journalist at the Guardian Newspaper, wrote to a number of Government departments making requests for information.  Those requests concerned letters that had passed between the Price of Wales and those departments.  In each case the Departments withheld the information.  FOIA provides that individuals who are dissatisfied with how their request for information has been handled can complain to the Information Commissioner and this right of complaint is extended to cover requests for information under the EIRs as well.  The Information Commissioner issued a series of Decision Notices upholding the decision of each Department to withhold the information.

FOIA provides for a right of appeal, by either party, to the First-Tier Tribunal (Information Rights).  Rob Evans appealed to the Tribunal.  The appeals were joined together and transferred to the Upper Tribunal for consideration.  On the 18 September 2012, almost 7 and a half years after the requests were made, the Upper Tribunal issued a lengthy judgment (which was accompanied by a number of lengthy annexes, some closed and some open) partially allowing Rob Evans’ appeal.

The judgment by the Upper Tribunal is an example of excellent judicial writing.  It set out a clear and cogent argument as to why it was allowing Mr Evans’ appeal to the extent that it did.  It is clear that the Tribunal took great time and effort in compiling it.  At play here are a number of constitutional conventions; one of which is the convention enabling the heir to the throne to be instructed in the business of Government in preparation for becoming the reigning Monarch.  Another important convention is that the Monarch should be politically neutral.  The Monarch has a constitutional role as an advisor and confident to the Prime Minister of the day and political neutrality is an important aspect of that constitutional role.

It was well known, even before these protracted proceedings, that The Prince of Wales would write many letters to Government giving his opinion and advocating causes that he held dear to him.  The Tribunal drew a distinction between this type of correspondence, to which they referred to as ‘advocacy correspondence’ and the correspondence which related to the Prince’s instruction in Government business in preparation for him becoming King.

The Tribunal decided that the advocacy correspondence ought to be disclosed while that which related to his preparation for kingship was correctly withheld and should not be disclosed under FOIA or the EIRs.

It was open to the Government to appeal this decision, but it chose not to.  Section 53 of FOIA and Regulation 18(6) of the EIRs gives the power to an accountable person to, within twenty working days of a decision notice being served, to issue a certificate on the basis that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure to comply with the relevant disclosure provisions under FOIA and the EIRs.

In this case, as the information in question related to a previous Administration, it was the Attorney General who was the ‘accountable person’.  This follows from the convention that only the Attorney General is entitled to see the papers of a previous Administration.  As a consequence of this, the Upper Tribunal’s decision ceased to have effect; none of the correspondence would be released under FOIA and the EIRs.

Rob Evans lodged proceedings for Judicial Review of the Attorney General’s decision to issue a Certificate pursuant to section 53 and Regulation 18(6).  The Administrative Court dismissed his appeal and he appealed again to the Court of Appeal.  The Court of Appeal allowed his appeal and quashed the certificates, but gave leave to appeal to the Attorney General.  The Attorney General appealed to the Supreme Court.

The Supreme Court, by a majority, dismissed the appeal by the Attorney General.  As a consequence, the decision of the Upper Tribunal stands and the advocacy correspondence will now be released.  The next two posts will look at the Supreme Court’s decision in respect of Section 53 and Regulation 18(6).

The cost and burden of FOI…again

The Chief Constable of Surrey Police has gone on the offensive against Freedom of Information on Twitter this evening (and the Assistant Chief Constable of Greater Manchester Police joined in).  It follows a predictable pattern where a public authority (and technically the Chief Constable is the public authority – schedule 1 to the FOIA provides that “A chief officer of police of a police force in England or Wales” is a public authority) complains about the cost of FOI and how it impacts upon the delivery of front line services.

It is a well trodden path which has, over the years, generated lots of discussion in information rights circles.  One of the frequent things to be picked up in these discussions is that, while public authorities are complaining about the cost and burden of FOI, they rarely mention any of the benefits.  Those benefits are around openness, transparency and accountability.

FOI, I can imagine, is probably a right pain in the backside to public authorities sometimes; however, just because it’s a royal pain in the backside doesn’t mean that it is of no value.  FOI is about allowing the citizen to set the agenda on the flow of information.  No longer is the flow of information dictated by what public authorities are prepared to release.  Now, if a member of the public wants to know something, they have the right to be given it if the public authority holds it and there is no good reason for not releasing it.

In times of shrinking budgets, FOI might be seen as an expensive luxury.  However, I would argue that in times of shrinking budgets FOI is all the more important.  As budgets shrink, public authorities have to take decisions about how they spend their ever shrinking budget.  That will often mean cuts to some services (or perhaps withdrawing services altogether).  It allows people who are directly affected by those decisions to go to the public authority and obtain the information that forms the basis of those decisions.  It can help them to understand why decisions have been taken and more importantly can better enable them to challenge decisions where they are perceived to be the wrong ones.

When Parliament drafted the FOIA, it didn’t do so without having any consideration as to the burden that this new regime would have on public authorities.  There are a number of provisions within the FOIA which help to control the burden of FOI.

First, there is section 12 of the Act which sets an appropriate limit on the costs of FOI requests.  A public authority is not obliged to comply with a request where the cost of compliance is estimated to excced the appropriate limit.  For a police force in England and Wales, the limit is £450 (indeed, it is £450 for all public authorities except Government departments or Scottish Public Authorities, where it is £600).  This does only covers certain activities and it is possible for requests to cost more than the appropriate limit in practice and not be capable of being refused under section 12.  This will be because the cost is incurred in an activity which cannot be taken into account in any cost calculations for the purposes of determining whether it exceeds the appropriate limit.

Sometimes, these requests will be the ones where the public interest is finely balanced and the authority is having difficulty establishing just where the public interest lies.  Should such requests be refused because of this?  I’d forcefully argue that they should not.  If it was possible to refuse these requests it would actively work against the public interest: the public might not get information which it would be in the public interest for them to have simply because it is going to take a bit of time for the public authority to work out just where the public interest lies.  However, sometimes the additional cost will be because there is a large volume of information to consider.  While, a request that throws up a large volume of information will often end up breaching the “appropriate limit”,  it is sometimes the case that there is a large volume of information held on a particular subject which is actually relatively quick and easy to locate and extract.  What takes the time then is the applying of exemptions and the conduct of the public interest test.  Section 12 isn’t an option in these requests, because the law doesn’t allow for it to apply.  However, this does bring us on to the next provision of the FOIA which is there to prevent the burden from being too great.

Before I look at that, I thought it would worthwhile pointing out that in terms of section 12 the law has provision within it to ensure that it cannot be avoided.  Simply breaking down a large request into a number of different requests will still likely engage the cost limit: public authorities can aggregate requests from the same individual received within a period of 60 consecutive working days which seek similar information.  So, asking for information on a particular subject over a 10 year period broken down into 5 requests each covering a 2 year period will be aggregated together.  All of the requests will be refused if the cost of complying with all of them is estimated to exceed the appropriate limit.  This provision goes further than that though; it’s not possible to get four of your mates to help you make 5 requests for the information over a 2 year period either.  The law provides that where “different persons who appear to the public authority to be acting in concert or in pursuance of a campaign” the public authority can again aggregate the cost and refuse all of the requests if they exceed the appropriate limit.

The second provision designed to help public bodies with the burden of FOI requests is section 14, which deals with both repeated and vexatious requests.  In terms of repeated requests, if a public authority has complied with a request from someone, they do not have to comply with a request from the same person which is for the same (or substantially similar) information unless a reasonable time has elapsed between the requests.

Vexatious requests are a bit more difficult; however, public authorities have been greatly helped by the decision of the Upper Tribunal in Dransfield (although, Mr Dransfield has appealed this decision to the Court of Appeal).  It is important to note that it is the request, not the person making it, which is vexatious. However, previous correspondence between the requester and the public authority can be relevant.  This provision largely allows public authorities to ignore people trying to use FOI to keep open grievances that have been rumbling on for a long time, especially where they have been the subject of complaints and independent scrutiny.  Section 14 also catches those who are making requests simply to annoy the public authority (quite possibly because of a previous complaint).  However, it can also be used to deal with requests where there is an unacceptable burden to the authority; described as “grossly oppressive”.

This is a higher burden than would be applicable in section 12, but it is an option that is open to authorities where requests produce large volumes of information with a lot of potentially exempt information – especially where those exemptions are qualified ones where the PI might be difficult to determine.  However, the ICO does consider it good practice to go back to the requester before claiming section 14 in these situations – and doing so would probably fall within a public authority’s duty to provide advice and assistance.  So, where a request is overly burdensome and section 14 could be claimed instead of section 12, a public authority should probably go back to the requester and try and work with the requester to refine their request.  Although requesters are not required to (and public authorities are generally discouraged from asking), trying to establish the motive and purpose of the request can help.  Engaging with the requester might save a public authority a lot of time in the long run as it becomes clear that only a tiny proportion of the information that has been uncovered is what the requester is after – the public authority gets to consider a much more refined request and avoids the possibility of an Internal Review and ICO complaint over its application of section 14 (and possibly an adverse finding against it, either in respect of its use of section 14 or its failure to provide advice and assistance).

I note that Surrey Police operates a disclosure log on its website, but that it states it only publishes responses which might have wider interest.  Disclosure logs can be a useful tool for public authorities.  There is an exemption for information which is already reasonably accessible to the requester.  Publishing all responses in a disclosure log on a website might enable public authorities to refuse requests under section 21 of the Act.  This is a quick and simple process that shouldn’t take a huge amount of time.  Most of the time will be spent ensuring that the request isn’t seeking additional information which is not already reasonably accessible to the requester.

This is where the WhatDoTheyKnow website comes into its own – all information released to requesters on that website ends up in the public domain automatically.  Just because it’s not actually published on the authorities own website, doesn’t mean it’s not reasonably accessible to the requester and so section 21 can still be used.  One public authority has even worked with WhatDoTheyKnow to utilise the technology behind WhatDoTheyKnow on their own FOI website, undoubtedly reducing the burden of operating a comprehensive disclosure log.

If public authorities notice trends in their requests, it might be worthwhile proactively releasing the information on a regular basis.  Then the exemption at section 22 is available to the public authority because it is information which is intended for future publication.  This exemption is subject to the Public Interest Test, but there will normally need to be compelling reasons for departing from a set date for publication.  Of course, public authorities would need to consider the cost balance here: is it more costly to routinely publish the information than deal with the FOI requests as they come in?  The UK provision on information intended for future publication is much more generous that the Scottish provision, where it only applies in cases where the intended publication is no later than 12 weeks following receipt of the request.

We often see complaints from public authorities about requests which are bizarre in nature, but as Jon Baines has demonstrated, those apparently bizarre requests do sometimes have a justification behind them.  For the ones that don’t, Tim Turner explains that they can be quickly disposed of.

There are, of course, steps that requesters can take to relieve the burden to public authorities and to that extent I commend Paul Gibbons’ guide to making FOI requests, which includes 10 very good tips for requesters.

A fairly long blog post, so if you have reached this point: thank you and well done!

Useful Links:

ICO guidance on section 12
ICO guidance on section 14
ICO guidance on section 21
ICO guidance on section 22

Councillors, Erroneous Benefit Claims, FOI and DPA

The relationship between FOI and Data Protection is one that causes frequent tension.  Obtaining personal data on third parties held by public authorities under FOI is, rightly, a difficult task.  On Sunday it was reported that Cornwall Council refused to release, in response to a Freedom of Information request, the name of a Councillor who had been advised by the Council that they had “erroneously claimed entitlement to Housing Benefit and Council Tax Benefit / Support” while they were a member of the Council, and that the amount involved was less than £5,000.  The Council refused to disclose the name of the Councillor on the basis that it was exempt under section 40(2) of the Freedom of Information Act (which exempts the release of personal data where its release would be in contravention of the Data Protection Act (DPA)).  This resulted in an interesting discussion between a few individuals on twitter relative to whether the Council was correct to withhold the Councillor’s name.

Lynn Wyeth concluded that it came down to the standard Data Protection Officer’s answer of “it depends” – and it really does; there is a whole heap of information missing which would be relevant to whether releasing the Councillor’s name would breach the DPA.

The starting point in respect of this one is establishing whether it is personal data, clearly it is; not only is it personal data, but it falls within the definition of sensitive personal data in section 2 of the DPA.  The information concerned here is personal data concerning the alleged commission of an offence by an individual (claiming benefits to which you’re not entitled being a criminal act).  This is an important point because the restrictions placed upon the processing of sensitive personal data are a lot more stringent than personal data which is not considered sensitive under the DPA.

The first Data Protection Principal is clear, that personal data must be processed fairly and lawfully.  It goes on to provide that personal data should not be processed unless at least one of the conditions in Schedule 2 is applicable; in the case of sensitive personal data it is also necessary to ensure that one of the conditions in Schedule 3 applies as well.

When it comes to releasing personal data under FOI, the condition in schedule 2 that is most often (if not always) applicable is Condition 6(1).  This condition provides:

The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

In other words, a person seeking the release of personal data about a  third party under FOI must be able to show that he has a legitimate interest and that it is necessary for the personal data to be disclosed in pursuance of that legitimate interest.  I would say that it would generally be the case that uncovering wrong-doing by an elected official while holding public office is a legitimate interest.  Unless the matter was reported in the newspapers or in other media at the time the accusation was being pursued by the body concerned, it would be necessary for the data controller to release the personal data in order to enable the third party to pursue their legitimate aim (uncovering misconduct by a public official and holding them to account).

However, this is personal data that falls within the scope of sensitive personal data and as such the very fact that condition 6(1) of Schedule 2 to the DPA is likely to be satisfied it is not the case that releasing the personal data would be fair and lawful.  There needs to be a condition in schedule 3 that is applicable as well.

In the normal course of things there wouldn’t, in my view, be a condition in schedule 3 which would apply – unless the data subject consented to the disclosure.  However, in certain circumstances it may be possible to use the paragraph 3(b) of Schedule 3 which applies where the processing is necessary:

in order to protect the vital interests of another person, in a case where consent by or on behalf of the data subject has been unreasonably withheld.

There are a number of key words here.  The first is “necessary”; if there was another way in which the vital interests of another person could be met without the data controller releasing the information then it wouldn’t apply (for example, if there had been a news report revealing the name – but then the FOI request wouldn’t have been necessary in the first place).  The next is “vital”; there is not, to my knowledge, any case law on what exactly “vital” means in the DPA – it appears in a number of places within Schedule 3.   It could reasonably be argued that uncovering the misappropriation of public funds by an individual elected to public office and holding that individual to account is a “vital” interest of a person other than the data controller (essentially everyone who the data subject is elected to represent).  Finally, the data subject’s consent must be unreasonably withheld.

This is where this case becomes particularly complicated.  It would seem that no criminal proceedings were ever brought against the councillor in question, and certainly it appears that there has been no conviction.  There is a presumption at the very heart of the criminal justice system in each of the legal jurisdictions in the UK: innocent until guilt is established.  As there would appear to be no criminal conviction in this case, the Councillor is an innocent member of the public holding elected public office.  The fact that there is no conviction, in my view, makes it harder to argue that there are vital interests to be protected.

This isn’t that straightforward though; some weight needs to be given to the fact that this individual was accused of making erroneous claims for benefits while an elected official.  Furthermore, it is necessary to give some weight to the fact that some form of procedure was carried out to reclaim overpayments made to the councillor.  However, that alone might not be enough to make release of their name under FOI fair and lawful.  There are other factors to be considered.  For example, if there was a settlement agreement in place which proceeded upon the basis of no admission of liability then that, I suggest, would tend to count against disclosure; especially if this was exactly how an individual who didn’t happen to be an elected member of the council would be dealt with.  That leads onto the next issue; was there any preferential treatment given to the Councillor? It would appear not, the Council has said that it was handled in accordance with the normal procedures.  Had it not been handled in accordance with normal procedures (e.g. he was given special treatment because he happened to be a councillor) then that might tip the balance in favour of disclosure because it would suggest some level of impropriety over and above the allegation that there was an ‘erroneous claim’.

In essence, these decisions are finely balanced.  I’m not going to say whether the Council was right or not to refuse to disclose because I’m not in possession of all of the relevant facts.  I don’t know what has gone on behind the scenes here, I don’t know whether the consent of the data subject has been sought let alone withheld unreasonably.  The journalist who made the request can make use of their right to request an internal review of the handling of the request and then complain to the Information Commissioner.  What I would say though is that simply because an elected official has been accused of something which may or may not amount to a criminal offence is not, in of itself, necessarily a justifiable reason to process personal data by releasing it under the Freedom of Information Act.

FOI at 10

On 1st January 2005 the Freedom of Information Act 2000, the Environmental Information Regulations 2004, the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 all entered into force.  For the first time in the UK people had a right, backed by Statute, to ask for information held by public bodies and to be given that information unless it fell within the ambit of one of the exemptions in the Acts or Exceptions in the Regulations.  Those rights were backed-up by independent regulators who had the power to order public bodies to release information where it had been incorrectly withheld by public bodies.

Today, is of course, the 10th anniversary of the coming into force of those rights and it has become so ingrained into our lives that we probably don’t notice it.  Every year thousands of stories that we see on TV or in the newspapers or hear about on radio have been the result of information obtained under Freedom of Information; much of that information may well have remained hidden had it not been for the rights enshrined in law to obtain that information.

Freedom of Information has been used to uncover scandals around Parliamentary expenses, both in Westminster and in Holyrood.  The late David McLetchie resigned as leader of the Scottish Conservative party following revelations that he had used taxpayers money to pay for taxis used in connection with party, rather than constituency, business.  That information was obtained under Freedom of Information.  At Westminster some politicians have served prison sentences as details of their expenses claims were revealed with help from FOI (and a leak to the Telegraph).

Over the last 10 years, Freedom of Information has become a powerful tool for local and national campaign groups to obtain information from the State as to how and why decisions have been taken.  It has enabled public bodies to be held accountable much more easily and for the public to better understand decisions that have been taken by public bodies.

Of course, FOI has not come without its problems and difficulties.  It does add an additional burden to public bodies – but the legislation does have limits to ensure that the burden doesn’t become too big or disproportionate.  There are individuals who abuse their rights under FOI.  There are a group of individuals who make use of FOI to try and keep open grievances that they have had with the public authority – some of which have been running for many years and been subjected to every form of scrutiny possible.  There are also those who make requests about plans for dealing with a Zombie Apocalypse or how many red pens had been bought.

There have also been regular attempts to undermine Freedom of Information by representative bodies.  These attempts have often cited ‘bizarre’ FOI requests.  Many of these so called ‘bizarre’ requests have a perfectly legitimate basis as explored here by Jon Baines.  The Prime Minister, David Cameron, also has some pretty strange ideas as to what Freedom of Information is.

FOI was a hard won right, with organisations such as the Campaign for Freedom of Information spending decades campaigning for access to information rights.  As a consequence we have some of the best access to information rights in the world.  Our rights are wide-ranging and simple to use whereas in other countries they are restrictive and contain a multitude of technical requirements making them difficult to use while others put the rights out of the reach of ordinary people by requiring fees to be paid in order to exercise those rights.  However, while it is probably true to say that our FOI laws are some of the best in the world it is also true to say that they are in need of serious protection.  As the way in which public services are delivered has changed, a lot of information has fallen out of the scope of FOI.  The regular attacks from bodies representing public authorities also threaten FOI.  These are important rights and it is right that on the 10th anniversary of FOI we remember their importance and how easy it would be for a Government to reduce, restrict or remove those rights.  As a rule, politicians don’t like FOI – it can be embarrassing for them and leads to a much more informed electorate.  A better informed electorate is a good thing, as is removing the Government’s total control  over the flow of information.

The House of Commons Select Committee concluded that FOI ‘has been a significant enhancement to our democracy’ in a report following its post-legislative scrutiny of the Freedom of Information Act 2000.  FOI has changed our democracy for the better, the 10th anniversary is a good opportunity to remind ourselves of how significantly things have changed in the last 10 years as a result of FOI and how valuable it has become.

The Campaign for Freedom of Information fought hard to get FOI onto the statute books and continues to work hard to promote it, campaign for its strengthening and protection; perhaps you would consider donating, even a small amount, to help them with this important work.