Category: Freedom of Information

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).

Police Service of Scotland and Information Management

Friday 13th is a much disliked date on the calendar and is often said to be unlucky amongst the superstitious.  It would seem that Friday 13th February isn’t turning out to have been a great day for Sir Stephen House, the Chief Constable of Scotland’s national police force.  On 13th February the body that is responsible for holding the Chief Constable to account, the Scottish Police Authority, convened a Special Board meeting to discuss the growing disquiet amongst many groups over the use of stop and search tactics by the Police Service of Scotland (PSoS).  The SPA questioned the Chief Constable and one of his two deputies, Deputy Chief Constable Rose Fitzpatrick on the issue.  Information released by the Scottish Information Commissioner today adds another blow to the Chief Constable in what could be described as a very long round in an extremely long boxing match.

The PSoS has faced a great deal of criticism over its use of stop and search, particularly non-statutory (or “consensual”) searches and especially non-statutory searches on minors under the age of 12.  Last year an undertaking was given to the Scottish Parliament’s Justice committee that the PSoS would effectively ban its officers from undertaking non-statutory searches on minors under the age of 12.  Earlier this month the BBC published a huge volume of data that suggested that this had been ignored on a large scale.

It has transpired that the information was obtained by the BBC under the Freedom of Information (Scotland) Act 2002 (FOISA).  We have learned that this came following an initial refusal by the PSoS to release the data allegedly over concerns as to its accuracy.  When the Chief Constable appeared before the Scottish Police Authority he stated that he had been forced by the Scottish Information Commissioner to release the information.  That, as it turns out, wasn’t quite the case.  The PSoS released the information following external legal advice.  From what is available it suggests that the legal advice obtained by the PSoS advised that not releasing the data risked an adverse decision notice and as a consequence of that, the PSoS released the information to the BBC journalist who had requested it.

FOISA gives a right to individuals to access information held by public authorities in a recorded format.  There is no right in FOISA to be given accurate information, nor is there an exemption in FOISA to enable public bodies to withhold information that is, or is believed to be, inaccurate.  This is not a new thing; it has been the position for some 10 years now.  If a public authority holds information in a recordable format and none of the exemptions in FOISA apply, then a person who asks for that information is entitled to be given it.

If the information is inaccurate that is the public authority’s problem, not the requesters.  If a public authority cannot have in place measures to ensure that the information it is recording is accurate, then that says a lot about the authority.  This whole fiasco has raised some serious questions about information management within the PSoS.  It would seem that police officers have been routinely entering incorrect information into the PSoS systems that record stop and searches.  That is something that must be rectified, and not just from an FOI perspective.  If the information that the PSoS holds is not accurate that will result in a significant knock-on effect across the whole organisation.  It means that everyone, from the Chief Constable down, is working from dodgy information.  Such a situation means that decision-making across the organisation is weakened.

What is even more astounding was the Chief Constable’s admission to the Police Authority that he could not give a 100% assurance over other data held by the PSoS.  That is quite an admission to be made by the Chief Constable to the body that holds him to account.  It casts doubt on the accuracy of all data held by the PSoS; including recorded crime.

FOI here has proved itself rather useful.  We may not be wiser about the extent to which the PSoS is using stop and search in Scotland, but what it has revealed is failings in the ability of the PSoS to accurately record what it is doing.  It has opened up to scrutiny the information management practices of the PSoS and in the furore over stop and search sight should not be lost of what is a significant admission by the Chief Constable of the PSoS.  A debate over the use of stop and search in Scotland still has to be had, but sorting out the apparent mess of the systems used by the PSoS to record data has to feature highly on the list of priorities for the Scottish Police Authority and HMICS.  We cannot have a situation where there is a lack of confidence in the data held by the PSoS.

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.

Valid FOI requests via Twitter?

The Information Commissioner’s Office (ICO) has issued a Decision Notice that the Metropolitan Police failed to comply with section 10 of the Freedom of Information Act 2000 (FOIA) which was made to it through Twitter.  In November 2012 the ICO issued a one page document setting out its view on whether a valid request can be made via Twitter.  In that document the ICO acknowledged that Twitter was not the most effective way to submit a FOI request; however, it went on to say that requests made via Twitter are not necessarily invalid.

The test for whether a request is a valid one or not is to be found in section 8 of the FOIA; it sets out the requirements as to what constitutes a valid request.  The Act provides:

(1) In this Act any reference to a “request for information” is a reference to such a request which—

(a) is in writing,

(b) states the name of the applicant and an address for correspondence, and

(c) describes the information requested.

(2) For the purposes of subsection (1)(a), a request is to be treated as made in writing where the text of the request—

(a) is transmitted by electronic means,

(b) is received in legible form, and

(c) is capable of being used for subsequent reference.

 Let us look at each requirement in turn:

The request is in writing

The starting point with statutory interpretation would normally be what is the literal meaning of the word?  Here Parliament has given us some assistance in interpreting what is considered to be in writing.  This does appear to be one of those ‘for the avoidance of doubt’ provisions and was most probably inserted to take account of E-mail.  There is little doubt that when passing the Act Parliament did not think about Facebook or Twitter, indeed when the Act was passed Facebook was barely a thing and Twitter hadn’t been invented.  However, as technology changes it is necessary for the law to move with it – whether it is capable of doing so without amendment by Parliament is a different matter!

Is a tweet transmitted by electronic means?

It is certainly sent and received by electronic means, but what does ‘transmitted’ mean?  According to the literal rule of statutory interpretation we must look at the ordinary meaning of the word transmitted.  Let’s turn to the online Oxford English dictionary and its entry for transmit.  Only the first two definitions are relevant here.  To transmit something is to “cause (something) to pass on from one person or place to another” or “broadcast or send out (an electrical signal or a radio or television programme).”  So, is a tweet transmitted by electronic means?  Sending a tweet is certainly causing something (the content of the tweet) to pass from one person (the sender) to the other (the recipient).  It might also be said that it is being sent from one place (the sender’s computer) to another (the recipient’s computer).  It could be said that sending a tweet is not too dissimilar to sending an E-mail.  Is it by electronic means?  I think that it is clear that it is, for obvious reasons such as without electronics there wouldn’t be the hardware to enable a tweet to be sent.  Is a tweet being broadcast or sent out?  The dictionary gives an example of an electronic signal or a radio/television programme.  What is a tweet?  It is essentially a series of digits which put together displays on the screen as an image – it might be said to be similar to a TV programme.  Whether it meets the second definition or not, I do think that it is safe to say it meets the first.

Is it received in a legible form? 

Well it’s certainly not going to be illegible because it is typeface rather than handwritten.  One might be of the view that this was perhaps to cover a handwritten note sent by fax and so probably isn’t relevant here – I think we can tick this box as well.

Is it capable of being used for subsequent reference?

This is where things get slightly more difficult! The Act doesn’t say who has to be capable of referencing it subsequently.  Obviously, the Public Authority will have to be able to reference it subsequently in order to check that it is complying with the request made.  Furthermore, the requester has to be able to subsequently reference it should they need to make a complaint to the ICO – the ICO will usually want to see the request and where possible evidence of the request having been sent.  However it does not seem to be as straight forward as that.

If I tweet a public authority’s official account, my tweets are not protected and I don’t do anything else then it is possible for both the public authority and I to subsequently reference the tweet.  On the face of it, this would clearly meet the requirement.  Whether or not they know it is there is probably an irrelevant question in the same way someone missing a request in their E-mail inbox doesn’t matter.

The issue becomes slightly more complicated if I protect my tweets later and the public authority is not following me – then only I can subsequently reference the tweet – or if I delete my tweet altogether.  In the first of these two situations (protecting my tweets where the authority is not following me) the tweet is clearly capable of being referenced subsequently, but only by me.   Does this meet the requirements of the Act?  Well I would suggest that in order to establish that we need to understand why Parliament included it.  What situations were Parliament envisaging when they enacted this part of the Act?  The explanatory notes do not provide any illumination on that question.  I don’t have time to, at this stage, wade through the many lines of debate in Handsard on the Bill in the hope that there is an explanation here.  I can’t immediately think of a situation which Parliament would have had in its mind when enacting this section.  On that basis I don’t think that really takes us any further forward.

The question that immediately springs to mind is for how long does the request have to be capable of being subsequently referenced by the authority?  If I protect my tweets on the 20th working day following sending the request is that different to if I protect them immediately following the sending of the request?  After all, by the 20th working day the authority should be in a position to respond, or at least have gathered all of the information in scope and simply be conducting the public interest balancing exercise.  I’d suggest there is a difference.  Quite where the ‘cut off is’ would most probably be a question of looking at the circumstances in each individual case – not an ideal situation though.

What about if I delete the tweet?  That might cause problems when making an application to the Commissioner – although taking a screenshot of the tweet prior to deleting it might cure that.  Again is it dependent upon when I delete the tweet – e.g. on the 20th working day or immediately after it was sent?

These are difficult questions and ones that don’t have clear answers.  However, in at least one case (the first – where the tweet was and remains public after it is sent and is not at any stage deleted or becomes inaccessible to the public authority by way of an individual’s tweets become protected) a tweet appears to meet all of the requirements set out in section 8(2) of the Act.

However, as mentioned earlier section 8(2) does seem to be more of a ‘for the avoidance of doubt’ subsection – a request can be in writing in other ways and it would appear that this has most probably been included so as to ensure that public authority’s treat requests received by E-mail as being valid requests – it would not appear to be the ‘be all and end all’ of the matter.

At the end of the day, what does ‘in writing’ mean? I don’t think we could realistically argue that a tweet is not ‘in writing’ even if it does not meet all of those tests – after all, a letter sent by mail doesn’t meet the requirements of section 8(2) and nobody would sensibly argue or find that such a request is not ‘in writing’ and so section 8(2) is clearly not the complete definition of what is meant by ‘in writing’ within section 8(1).

The request states the name of the applicant and an address for correspondence

Assuming that we have a request made via twitter that meets the definition of being ‘in writing’ the next requirement is that the request must state the name of the applicant and an address for correspondence.  If we accept that a public authority’s twitter accounts is an address capable of having correspondence (not necessarily just a FOI request, but any type of correspondence) sent to it, then equally an individual’s twitter account must also be an address for correspondence.  If an individual does not need to, for example, include within the body of their E-mail their E-mail address (i.e. it appearing in the ‘From’ field is sufficient) then I don’t see why someone would have to include their own twitter handle in their request – it is there for the authority to see in its mentions.

However, the name issue is more problematic.  It is the view of the Commissioner (and I believe that it is the correct one) that the name of the applicant must be their real name – lots of people don’t use their real name (or indeed any of the acceptable forms thereof for the purposes of FOI) in their twitter profile; so there we could have a problem.  If it’s not on their profile, then it’s not a valid request – even if we’ve managed to overcome the ‘in writing’ issue.

Describes the information requested

The final requirement is that the request describes the information requested.  That has to be in enough detail to enable the authority to identify what is sought.  That could be difficult in 140 characters.  However with services such as twitlonger it can be done.  It could also be possible to send the request over a number of tweets (as was done in the Metropolitan Police case linked to at the outset of this blog post).  I don’t see that as being any different to sending it in a number of letters or in a number of separate E-mails.  Indeed, when an authority seeks clarification because it is unable to identify what information is being requested it is looking at a request over at least two pieces of separate correspondence, if not more, to create a valid request.

Conclusion

The ICO does not say in its guidance that all requests made via twitter will be valid, only that a request made via Twitter may not necessarily be invalid.  I would certainly have to agree: it is possible to make a valid request by twitter.  Is it a good idea?  I would say that it’s not, and that it is probably best to stick to more conventional methods such as letter or E-mail.

Costs in the FTT: Snee v Information Commissioner & Leeds City Council

Under the Freedom of Information Act 2000 a decision by the Information Commissioner is capable of being appealed to the First Tier Tribunal (Information Rights) by either the public authority involved or the Complainant.  There is no cost in brining an appeal and parties are generally responsible for paying any legal costs that they incur (public authorities will often be represented as will the Commissioner; sometimes by Counsel).  Under The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 the Tribunal has, on the application of a party, the power to award costs.  It can do so where the appellant has acted unreasonably in brining or pursuing the appeal.

Earlier this month the First Tier Tribunal issued a decision, Mark Snee v the Information Commissioner and Leeds City Council, in respect of an application for costs against an Appellant by Leeds City Council.  The Council were seeking their £20,000 costs in full, having  applied to be joined to the appeal and having been represented by Queens Counsel.  The Appellant in the case, Mr Snee, was represented by Counsel.  The Tribunal’s decision contains some useful information with regards to heir approach to such applications.

Mr Snee’s requests had been refused by the Council on the grounds that they were vexatious (section 14(1) of the Freedom of Information Act 2000).  The Commissioner and the Tribunal agreed that they were vexatious, and it was at that stage the City Council applied under Rule 10(1)(b) of the Tribunal Rules for costs.

One of the Council’s arguments, which was not accepted by the Tribunal, would have had a fundamental effect upon an individual’s right to appeal to the Tribunal.  It was argued that, because Mr Snee’s requests were vexatious he had acted unreasonably in bringing the case to the Tribunal.  The Tribunal did not agree.  It pointed out that the Commissioner had the opportunity to refuse to issue a decision notice where he found the complaint to be frivolous or vexatious, and the Tribunal had the power to Strike out an appeal upon the application of a party where it has no hope of succeeding.  The Tribunal stated that it was right to remember these protections against vexatious or hopeless appeals.  Automatically making appeals against a decision that requests are vexatious subject to the costs provisions where the appeal fails would have a significant impact upon the appeal rights of an individual.  The Tribunal considered that “it must be possible, depending on the circumstances, for the maker of a request regarded by everyone else as vexatious, to defend his or her position on that point without automatically being treated under the costs Rules as behaving unreasonably.”  In other words, it must be possible for an individual who makes a request which is considered to be vexatious to defend their position in the Tribunal.

In the Tribunal individuals who are appealing against the Commissioner’s decision in respect of their FOI request will often not have the benefit of legal advice.  Thus, what might appear to a fully trained lawyer to be “futile or wrongheaded”, the Tribunal considered that “it would be wrong to assume that the challenge is inevitably an unreasonable one for the citizen to bring.”  The comments had a much more general application than that and equally well apply to a range of other Tribunals within the First Tier Tribunal structure where Legal Aid is not available, or is available only in very limited circumstances.

It seems, from this decision, that the chances of an appellant facing a costs order for an Appeal against a decision of the Information Commissioner are unlikely; although it remains a possibility that costs will be awarded in exceptional circumstances; quite what those circumstances will be remains to be seen.  It seems more likely that an unreasonable appeal will be struck out during the early case management stages than for it to progress to a full hearing, thus preventing the generation of significant costs for all involved.

ICO to appeal HS2 veto

It has been reported that the Information Commissioner is to make an application for Judicial Review of the decision by the Secretary of State for Transport to issue a certificate under section 53 of the Freedom of Information Act 2000 (‘the FOIA’) in respect of the Commissioner’s decision that the project assessment report pertaining to the HS2 project should be released under the Environmental Information Regulations 2004 (‘the EIRs’).

The Commissioner’s decision to make an application for judicial review is undoubtedly underpinned by the decision of the Court of Appeal in the case of R (Evans) v Attorney General and Information Commissioner in which the Court of Appeal decided that the use of the ‘veto’ under section 53 of the FOIA was unlawful in respect of information which is environmental in nature.  I have written on the Evans decision here, and so don’t propose to repeat anything that is contained in that post.

In his decision dated 6 June 2013 the Commissioner found that the information contained within the report was Environmental Information, and consequentially it fell to be considered under the EIRs rather than the FOIA.  The Cabinet Office, who were the public authority concerned, relied on Regulation 12(4)(e).  The Commissioner found that the exemption was engaged, in that the information concerned amounted to internal communications.  However, he decided that the public interest in maintaining the exemption did not outweigh the public interest in releasing the information.  As a result the Information Commissioner ordered the Government to release the information contained within the report.

As the information amounts to Environmental Information, and following the decision of the Court of Appeal, the Secretary of State’s certificate under section 53 is unlawful.  It should be noted that the Evans decision is subject to an appeal to the Supreme Court by the Attorney General.  It is possible that the Supreme Court could over-turn the Court of Appeal’s decision in that case which states that the veto is unlawful in respect of Environmental Information.

Some interesting times ahead in the world of FOI.

The new Scottish Public Authorities: Who are they?

On 1 April 2014 the Freedom of Information (Scotland) Act (Designation of Persons as Scottish Public Authorities) Order 2013 (‘2013 Order’) enters into force and it is the first such Order made by the Scottish Ministers under section 5 of the Freedom of Information (Scotland) Act 2002 (‘FOISA’) since FOISA entered into force.

The 2013 Order will make new bodies subject to the provisions of FOISA, and by extension* to the Environmental Information (Scotland) Regulations 2004 (‘Scottish EIRs’).  The 2013 Order does not list specific bodies which will become subject to FOISA and the Scottish EIRs, rather it describes the bodies that are to be made subject to FOISA and the Scottish EIRs. The Schedule to the 2013 Order has two columns, and the bodies which fall within the description in Column 1 will becomes subject to FOISA and the Scottish EIRs for their functions described in Column 2.

Column 1
By virtue of Column 1 a body which has been established or created solely by one or more local authorities who on behalf of any of those authorities developed and/or deliver recreational, sporting, cultural or social functions and activities, and are wholly or partially funded by any of those authorities will become subject to FOISA and the Scottish EIRs.

This refers to Arms Length External Organisations (ALEOs) established by one or more of the 32 local authorities in Scotland to develop and/or provide recreational, sporting, cultural or social functions and activities which receive funding from those local authorities. It is much wider than the section 6 provisions which relates only to companies wholly owned by one or more Scottish public authorities. This modification to FOISA will cover many different structures of organisations from Partnerships, Limited Liability partnerships, Trusts and many other different business structures.

Column 2
The bodies covered by the definition in column 1 will only be subject to FOISA and the Scottish EIRs in relation to their functions mentioned in Column 2. Column 2 refers to a number of sections of legislation which give local authorities the power to carry out certain factions. The functions are listed below with a brief explanation of what they mean.

Section 90 of the Local Government (Scotland) Act 1973
This section gives local authorities the power to carry out certain functions in respect of tourism. This includes the provision, or encouragement of any other person to provide, facilities for leisure, conferences, trade fairs and exhibitions or improve, or encourage any other person to improve, any existing facilities for those purposes; the promotion, by advertisement or otherwise, of facilities provided by that local authority (whether such facilities are owned by the authority or otherwise); and the organising, or assisting others in the organisation of, and promotion, by advertisement or otherwise, conferences, trade fairs and exhibitions.

Section 163 of the Local Government (Scotland) Act 1973
This section (or what is left of it) gives local authorities a duty to provide adequate library facilities for all persons resident in their area.

Section 14 of the Local Government and Planning (Scotland) Act 1982
Broadly speaking, this section places upon local authorities a duty to provide adequate provision of facilities for the inhabitants of their area for recreational, sporting, cultural and social activities.

Section 20 of the Local Government in Scotland Act 2003
This section provides for a general power for local authorities to do anything that it considers is likely to promote or improve the well-being of its area and/or any persons in its area.

What does it actually mean?

I am not so sure that any of the above actually brings us closer to understanding just who will be subject to FOISA and the Scottish EIRs following the entering into force of the 2013 Order. Some of the most notable examples though will include leisure trusts (which are not companies, who are already subject to FOISA and the Scottish EIRs) and bodies responsible for the provision, maintenance and development of library facilities.

There are certainly benefits to drafting the 2013 Order in this way. Had the Scottish Ministers simply listed specific bodies it would have become out of date very quickly. The provision of services by local authorities is very fluid and can change overtime. ALEOs can exist and then be merged or wound-up, their functions can be taken back in-house only to later be put out to another ALEO. It will largely protect against the fluidity of ALEOs and should hopefully ensure that we don’t see (at least in respect of services provided by local authorities) the reduction in information access rights that has been seen since the introduction of FOISA in 2005.

How to know if a body is covered
In the first instance it is going to be largely up to the individual body to determine if it is covered by the extension, and if so to what extent. In theory they should already have been making preparations by putting in place a publication scheme (which in practice will likley be simply to adopt the Commissioner’s Model Publication Scheme) and a framework for dealing with requests. However, there might have to be some testing of the law in respect of some bodies.

The easiest way to find out if a body is covered is probably to approach the body. If they say that they are then you can go ahead and make your request like you would to any other Scottish Public Authority (‘SPA’). However, if they say they are not you might have to be a bit more persistent. Ultimately, it will be for the Scottish Information Commissioner (as the person responsible for enforcing FOI law in Scotland) to determine whether a body is a SPA or not. She can only accept an application after a request for information has been made and a request for internal review has also been made. This will mean that it will be necessary to go through the process of submitting a request and either waiting for word from the body that they won’t respond or for 20 working days to elapse without a response before then submitting your internal review and again waiting for word from the body that they won’t respond or for 20 working days to elapse without a response.

A determination by the Commissioner that a body is (or isn’t) a SPA by virtue of the 2013 Order wouldn’t necessarily be the end of the road. A decision by the Commissioner that an application cannot be accepted by her is open to the possibility of an application for Judicial Review, while a decision notice issued against a body that disagrees with the determination that it is covered could be open to appeal to the Court of Session under section 56 of FOISA (and then to the Supreme Court).

*by virtue of Regulation 2 of the Scottish EIRs any body listed in Schedule 1 to FOISA or designated under Section 5(1) of FOISA is also subject to the Scottish EIRs.