Information caselaw update

Predeterminiation iStock 000016468646Small 146x219Eleanor Grey QC provides an overview of the most significant developments in information caselaw over the past month.

Vexatious or unreasonable requests

In a month in which the Justice Minister, Helen Grant, outlined plans to reduce the amount of money spent answering FOI requests, Tribunals too have been busy considering burdensome requests. Three Upper Tribunal (UT) decisions were handed down on 28 January 2012, addressing the proper test to be applied in deciding whether requests are “vexatious” (s14(1) FOIA) or “manifestly unreasonable” (Reg 12(4)(b) EIRs).

IC v Devon County Council and Dransfield [2012] UKUT 440 is now the leading case on s14(1). A “vexatious” request is one which involves a “manifestly unjustified, inappropriate or improper use of” the FOIA procedures. Characterising a request as involving such misuse, or as “vexatious” requires considering four (non-exhaustive) themes:

(1) the burden - on the public authority and its staff. This involves considering the previous course of dealings with the requestor, looking at factors such as the number of requests, their breadth or the pattern of their arrival;
(2) the motive - of the requester. That FOIA is “motive blind” does not mean that there can be no examination, under s14, of the justification for the request, or its motive. It may be “ill-intentioned”, or have drifted so far from its original purpose as to become disproportionate.
(3) the value or “serious purpose” of the request. The UT recognised the potential for overlap with (2), and also cautioned about “jumping to conclusions” about a lack of serious purpose; but there should be an objective public interest in the release of information sought.
(4) any harassment or distress, of and to staff – by the use of bullying language etc. This was not, however, a prerequisite for the application of s14.

Craven v IC and DECC [2012] UKUT 442 addresses “manifestly unreasonable” EIR requests. It confirms that the test under the two regimes is, for practical purposes, the same. It follows that if there is uncertainty about which regime applies, public authorities may address requests on an ‘either/or’ basis. Further, an authority is entitled to refuse a single extremely burdensome request as being “manifestly unreasonable”, purely on the basis that the cost of compliance is excessive. This represents an important protection for public authorities.

Finally, in Ainslie v IC and Dorset CC [2012] UKUT 441 (AAC) the UT expressly confirmed current understanding of the FTT’s appellate jurisdiction: the FTT may “undertake a full merits review of the Commissioner’s decision”. Consistently with this approach, it held that the FTT’s reasons had failed to engage sufficiently with the arguments before, or to resolve important issues of fact.

What information is “held”

Mr YV continues to generate litigation for Camden. In this case (EA/2012/0096), he sought emails to a councillor stored on the local authority’s computers. Camden’s argument that these were not ‘held’ under FOIA was accepted by FTT. In relation to purely personal emails to the councillor: “The fact that the emails are in some way on local authority premises is incidental to the local authority itself. This is similar to a council employee receiving a birthday card in his office and leaving it in his office desk.” As for correspondence with ward residents: “.. we think it is clear that the councillor in receiving or sending correspondence was acting in a role that was independent of the Council and not in any direct way on behalf of the Council. ....To the extent he acts on anyone’s behalf or holds information on anyone’s behalf, it is on behalf of the ward residents.” [23].

Charges and publication schemes

The FTT conferred ‘protection’ on the charges in Publication Schemes when it accepted arguments that the approval of a FOIA Publication Scheme by the IC means that information covered by the Scheme is to be deemed ‘reasonably accessible’ to requestors under s21, FOIA. See Matthew Davis v IC EA/2012/0175. The conclusion followed from the effect of s21(3) FOIA, despite the fact that the fee in question was a hefty £1550. In future, the IC may need to pay greater attention to charges under publication schemes, for the FTT will not be able to scrutinise them in appeals against the application of s21.

Fines

The major FTT decision of the month was Central London Community Healthcare NHS Trust v IC (EA/2012/00111). The FTT dismissed a range of challenges to a monetary penalty notice (MPN) issued by the IC, imposing a fine of £90,000 on the Trust.  The FTT held that its jurisdiction under section 49 of the DPA mirrored that under section 58 of FOIA; it could re-consider the issues afresh (and could even impose a larger fine than the IC). But it gave short shrift to most of the arguments against the level of penalty imposed.

Of great practical importance was the decision that the IC was not required to keep its offer of a reduced penalty open whilst an appeal was pending, or to allow a reduced payment to be made “under protest”. “The purpose of the scheme would appear to us to encourage early payment and also to ensure there is an early resolution to the matter. There is no provision for a without prejudice payment.” From now on, authorities will face the unenviable choice between paying a discounted fine, but foregoing rights of appeal; or paying the full fine should an appeal be unsuccessful.

The Information Commissioner continues to be concerned about data protection measures in local government. Giving evidence to a Commons Justice Select Committee on 5 February, Mr Graham repeated a request for the power to carry out compulsory data protection audits in local councils and NHS bodies. He told MPs: "Until local government gets the message, local council taxpayers will continue to be hit by civil monetary penalties for really basic stupid errors."

Law enforcement – s31

London Borough of Camden v IC & YV came back to the First-tier Tribunal after the FTT’s decision was set aside by the UT. This time, the FTT held that Camden’s list of addresses of void properties in the borough, not owned by individuals, should not be disclosed. Applying s31, the Tribunal accepted that release would be likely to encourage squatting and criminal damage. Unusually, the FTT took account of the requestor (YV)’s own evidence of what he would do with the information. Whilst this would generally be irrelevant (requests are ‘applicant blind’), here it formed part of a larger body of evidence which the FTT was satisfied allowed it to conclude that even ‘responsible’ squatters were likely to commit criminal acts.

A restrictive attitude to “functions” under s31 was adopted in Bousfield v IC and Alder Hey EA/2012/0092. A journalist sought a copy of a report into stress amongst staff working in the hospital’s operating theatres. The exemptions under s31 and s36 were invoked. But the FTT held that, if Trust “functions” related to health and safety, the Trust must rely on s38 FOIA. Relevant “functions” under s31 should be linked to law enforcement.  

The reasonable opinion of a qualified person – s36

Still on Bousfield, the FTT commented on the defects in the Qualified Person’s opinion: it was undated and unsigned, the QP had not been given a full copy of the Report at issue, and there had been a conflation of the separate roles of producing an opinion on the damage that would flow from release, and whether it was in the public interest to release. The opinion ‘survived’ but its evidential weight was reduced. These are mistakes which could be avoided; decision-makers may be helped, the FTT commented, by the IC producing guidance for ‘qualified persons’.

Personal Information – s40

The application of 40(2) continues to generate appeals. In Deborah Clarke v IC and East Hertfordshire District Council EA/2012/0160, protection was given to papers generated whilst investigating a complaint against the Council’s Chief Executive. The FTT upheld the principle that individuals possess a strong expectation that such complaints will be handled privately, whilst noting that it may be different if there is a serious allegation of impropriety or criminality. This, of course, is the ‘hard case’ whose boundaries are rarely tested. In the Department of Education (NI) v IC EA/2012/0135, parents’ questionnaires gathered for a school inspection were protected.

The FTT accepted that, as the school had only 93 pupils, there was more than an “extremely remote risk” that parents would be identified even if questionnaires were anonymised. Given that assurances of confidentiality had been given, the FTT held that disclosure would be incompatible with the purpose of recording the data. Although the conclusion is orthodox, the reliance on the purposes of data collection is unusual; generally, such cases are decided on fairness grounds, applying the first data protection principle.

Finally, in a case that must hold the record for the largest number of knights of the realm giving evidence, the Duke of Cornwall (Prince Charles)’s tax information is safe from public scrutiny: John Kirkhope v IC EA/2011/0185. The infrmation sought dated back to 1960-62, but the principles concerning taxpayers’ expectations of confidentiality apply to more recent information, generated following the introduction of FOIA.

Section 42 – Legal Professional Privilege (LPP)

A possible route to widening the scope of s42 ended with the Supreme Court’s decision in R (Prudential Plc) v Special Commissioner of Income Tax [2013] UKSC 1. This concerned whether LPP could cover legal advice given by persons who are not lawyers. The SC recognised that, in the modern world, legal advice is frequently given by specialist professionals who may not be lawyers – for example, accountants may give detailed advice on the application of tax law. However, the SC refused to extend the scope of LPP to cover such advice. That would be to introduce uncertainty into a straightforward area of law, and to usurp Parliament’s discretion to reform the law. The Prudential case was not fought out in the context of FOIA, but its effect is to confirm that s42 can only apply in the context of advice sought or given by members of the legal profession.

Postscript – a December case 

We finish by drawing attention to a Court of Appeal case, Durham City Council v Dunn [2012] concerning the inter-relationship between the DPA and the Civil Procedure Rules (CPR). The CA examined disclosure in a claim for damages for historic physical assaults. Judges had been invited to frame their disclosure decisions by reference to s7, DPA (subject access requests). The CA held, unequivocally, that this was wrong. Although s7 requests could be made pre-action for personal data under the DPA, when case-managing litigation, the appropriate framework was the CPR. Under this:

“The requisite balancing exercise is between, on the one hand, a party's right to a fair trial at common law and pursuant to Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and, on the other hand, the rights of his opponent or a non-party to privacy or confidentiality which may most conveniently be protected through the lens of Article 8. It is a distraction to start with the DPA, as the [DPA] itself acknowledges. Section 35 exempts a data controller from the non-disclosure provisions where disclosure is required in the context of litigation. In effect, it leaves it to the court to determine the issue by the application of the appropriate balancing exercise under the umbrella of the CPR, whereupon the court's decision impacts upon the operation of disclosure under the DPA.” [Maurice Kay LJ, para 21].

Eleanor Grey QC is a barrister at 39 Essex Street. She can be contacted byThis email address is being protected from spambots. You need JavaScript enabled to view it..