FOIA update: part one

Spotlight iStock 000003933485XSmall 146x219In the first in a two-part series, Eleanor Grey QC looks at key FOI decisions in the last six months on such issues as the public interest balance, raising new issues in an appeal, and when information is 'held'.

This update covers Information Rights Tribunal decisions across the five-month period of June–October 2012. During it, there have been only a limited number of Upper Tribunal (“UT”) decisions, but a large number of First-Tier Tribunal (“FTT”) decisions.

This two-part article aims to look at developments in the law, and at cases which represent something more than an application of established principle to the facts in dispute. The focus is on points which may be useful for local government lawyers, in particular. It avoids topics already well-covered – for example, Prince Charles’ ‘spider’ correspondence.

The public interest balance

Judge Jacobs’ decision in London Borough of Camden v The Information Commissioner &YV [2012] UKUT 190 (AAC) is of importance for its observations on the public interest balance. The case concerned a request to Camden for the addresses of void properties, not owned by individuals, in the borough. The FTT had considered the application of s31(1)(a) FOIA (‘the prevention or detection of crime’) and held that the public interest required disclosure of the addressed. The UT set aside that decision, and remitted it for redetermination.

The UT found that the FTT had taken an unduly narrow view of the factors to be taken into account, when considering the public harm caused by criminal acts. It had been argued that crimes, e.g. criminal damage, would be encouraged by the publication of a list of void properties. The Upper Tribunal held that the financial and social consequences of such crimes had to be taken into account, even if indirect. The example given was the theft of wheels from an ambulance:

“The public interest would not be limited to the financial cost of replacing the wheels, but would surely include the impact on the patients if the ambulances were not available. These consequences may not be as easy to quantify, but they can be more important. Criminal damage and its consequences can reduce the quality of life in a neighbourhood” - and this social or psychological impact needed to be included.

On the scope of such assessment, Judge Jacobs stated: “[The Tribunal] has to make an assessment of the public interest. In performing that task, it should take account of any factors that are sufficiently connected to the interests involved in to be part of that assessment. If I had to capture that connection in a phrase, I would say that the tribunal should take account of any consequences that can readily be anticipated as realistic possibilities.”  

That test included an assessment of how existing behaviour might alter if information was released. “Tribunals have to be alert to the possibility that disclosure may affect behaviour. It is a mistake to assume that behaviour will continue as before and assess the public interest on that basis.”

As part of his judgment, Jacob J also affirmed that the ‘slip rule’ contained in rule 40 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 can be used to correct only minor errors, such as typographical slips. It cannot be used to alter the substance of reasons if the tribunal “has changed its mind and had further thoughts”.

When considering the issue of the public interest balance test, the observations of the FTT decision in the Chagos Refugees Group v IC and the FCO EA/2011/0300 may be useful. The FTT accepted the Appellants’ argument that the public interest favoured disclosure of a contentious document. It commented on the FCO’s argument that disclosure would add little to the information already available:

“… it is important not to discount unduly the significance, in the public interest, of the disclosure of small amounts of information. Publicly useful freedom of information act requests are generally limited in scope. If too broad, they face the obstacle under FOIA of the costs limit, and under the EIR of the proportionality requirement. If the Tribunal were to take an unduly minimalist view of the value of the publication of relatively small amounts of information, this would materially reduce the effectiveness of the legislation.” 

Past decisions and precedents

On procedural topics, the London Borough of Camden decision affirms that the First-tier Tribunal is not bound by any other First-tier Tribunal decisions. Judge Jacobs stated: “previous decisions are of persuasive authority and the tribunal is right to value consistency in decision-making. However, there are dangers in paying too close a regard to previous decisions. It can elevate issues of fact into issues of law or principle”.  

In UK Coal v Information Commissioner [2012] UKUT 212 (AAC), the Upper Tribunal subsequently added “This warning applies with even greater force, if that were possible, when one is concerned with the Commissioner’s previous Decision Notices.”

Generally, the outcome of the UK Coal appeal underlines the importance of ensuring that there is a real legal point at issue in an appeal; the Upper Tribunal will refuse to allow appeals which amount to an attempt to reargue (for example) the merits of the public interest balancing exercise performed by the First-tier Tribunal.

Raising new issues in an appeal

Arguments about late claims to rely upon exemptions continue. In the case of Ryanair v IC EA/2012/0088, the FTT refused to hear arguments based on s36, FOIA (the 'reasonable opinion of a qualified person'), when the opinion relied had been obtained by the public authority after the internal review stage. Applying Thackeray v IC (EA/2011/0069), it noted that the task for the Commissioner or FTT was to assess reasonableness of the qualified person’s opinion, using a Wednesbury approach. The manner and timing of the obtaining of the opinion could be considered in that scrutiny. In the Ryanair case, the ‘reasonable opinion’ had not been obtained before the internal review stage, which meant that the Commissioner could not fulfil his statutory role. Furthermore, given its late arrival on the scene, the FTT felt that it would be difficult for it to be satisfied “that the section 36 opinion was not an ex post facto conclusion or, more accurately, not tainted with the perception that that could be the case.” Relying also on its general case management powers, the FTT refused to allow reliance on the opinion, and upon s36.

Contrast Sittampalam v IC, when the ‘reasonable opinion’ had been obtained before the substantive reply by the public authority (the Ministry of Justice), and s36 could be invoked.

Upon late arguments about the costs of a search, see the FTT decision of the Chagos Refugees Group v IC and the FCO EA/2011/0300. The FTT was considered the application of the EIRs to the disclosure of documents relating to a consultant’s feasibility study, examining resettlement of the Chagos Islanders. The Tribunal declined to entertain a late argument that the search request was disproportionate. “The proper time to raise a concern that a search would be too costly is before the search is concluded, not at an appeal hearing two years later."

Environmental information

The issue of whether information should be considered under the FOIA regime, or under the Environmental Information Regulations, continues to be litigated.

Uttlesford District Council v IC EA/2011/0269 concerned requests for information made under the EIRs, about planning applications submitted by two major supermarket chains. Of interest is the decision about the status of information in emails discussing whether  “certain named councillors should vote on the applications at a forthcoming Development Control Committee meeting”. The IC had considered these communications under the EIRs, under the exception for ‘internal communications’.

On appeal, the Council argued that the information did not fall with the definition of environmental information in regulation 2(1). Rather, it related to the Members Code of Conduct under the Local Government Act and should be considered under FOIA. The FT agreed, stating that the e-mails and the Code addressed questions of probity, and did not contain environmental information as envisaged by the Directive. The principle of legal certainty required that the definition of ‘environmental information’ was not extended beyond its natural meaning. 

The emails were therefore assessed under s36(2) of FOIA. The FT held that, if disclosure were permitted, it might prevent people from discussing such issues, thereby prejudicing the provision of proper guidance to councillors. The Tribunal was “satisfied that without this there is a very real risk that this key area of governance will be compromised by fear of disclosure leading to non-communication in both directions, inappropriate conduct by councillors lacking guidance and the significant likelihood of a justified loss of confidence in the council”. It overturned the IC’s decision.

Montford v Information Commissioner and BBC, EA/2009/0114, concerned requests to the BBC for information about an organization, the Cambridge Media and Environment Program (CMEP). CMEP had hosted seminars aimed at improving BBC journalists’ knowledge of ‘slow-moving’ environmental issues.

Of interest is the FT’s discussion as to whether the information sought by the Appellant about those seminars was environmental information within the statutory definition.  It considered the DEFRA guidance "What is covered by the Regulations?", which notes that there should be a sufficiently close connection between the information and the probable impact on the environment before it can be said that the information is "environmental information".  “The Tribunal concurs with the proposition that a merely remote connection with safeguarding the environment will not suffice.” There needed to be a sufficiently close connection between the information and the probable impact on the environment before it could be said that the information was “environmental information”. A remote connection with safeguarding the environment would not suffice. In this case, the fact that the BBC’s journalism training involved information concerning the environment was not sufficient to bring it within the statutory definition of “environmental information”.

When information is ‘held’

Mostly, Tribunals continue to resolve this issue by applying the guidance in Bromley v IC. In the Chagos Refugees Group v IC and the FCO EA/2011/0300, the FTT had to consider the status of documents held by a third party, consultants retained by the FCO. It decided that draft documents retained by the consultants following the delivery of their work to the FCO were not ‘held’ on the FCO’s behalf. In doing so, it applied the guidance on the meaning of ‘held’ under FOIA contained in University of Newcastle v IC and BUAV [2011] UKUT 185 (AAC) to the EIR regime. However, it noted that the issue of whether documents were ‘held’ could not always be characterized as ‘simply a question of fact’ (as previously suggested in McBride); sometimes the legal relationship between the public authority and the body retaining information would need to be established. In this case, analysis of the contractual relationship between the FCO and the consultants revealed that the consultants kept the documents for their own purposes, and not because of any duties owed to the FCO. They were not ‘held’ by the FCO.

According to the UKhumanrightsblog.com:

“This conclusion may be technically right, but is unreal. The consultants would have had no hesitation in releasing the documents to the Chagossians had the FCO agreed; but the FCO did not agree, so the non-disclosure of the documents in the consultants files was in accordance with the wishes of the FCO. It is also odd that the consultants did not retain the drafts in part to help the client in years to come, not simply to ward off complaints or litigation by the client. Virtually a green light for government to park embarrassing drafts with consultants in circumstances where contractually government cannot call for them?"

On the FCO’s own documentation, the Tribunal accepted the FCO’s case that the FCO itself held no further documents, noting that “a search should be conducted intelligently and reasonably, and that this does not mean it should be an exhaustive search conducted in unlikely places”. To similar effect was the decision of the Leeds County Court, which confirmed that when a s7(1) DPA subject access request is made for personal information, the obligation on the data controller is to conduct a “reasonable and proportionate search” (Elliott v Lloyds TSB Bank Plc, unreported decision of 24 April 2012).

The second part of the article – covering issues such as vexatious requests, and personal information and the application of s. 40(2) – will be published in January. 

Eleanor Grey QC is a barrister practicing from 39 Essex Street, London. She has a specialist interest in freedom of information and data protection laws.

While every effort is made to ensure that the content of this article is accurate, it contains general information only and does not constitute legal advice. Specific advice should always be sought on any legal issues of concern.