Here for good? - pt 2
Given that the Conservative-Lib Dem coalition agreement provides that the new government intends not merely to retain but also to ‘extend the Freedom of Information Act to increase transparency’, it appears that FOIA is here to stay. There is therefore every reason for information lawyers to stay abreast of recent developments in the FOIA field. In the second of a three-part series, Anya Proops highlights the key rulings.
Public Health & Safety
As a matter of common sense, it is likely to be a rare case where a public authority will be required under FOIA to disclose information where there is good evidence that the disclosure itself would risk public health and safety. The question of how the tribunal should approach cases where the public authority is arguing that there is such a risk has been considered in two recent cases: People for Ethical Treatment of Animals v IC & Oxford University (EA/2009/0076) and Kalman v IC & Department for Transport (forthcoming).
In PETA, a request was made by PETA for disclosure of information about particular animal experiments being conducted at Oxford University. The request was made after the BBC screened a documentary which examined the merits and demerits of particular animal experiments being conducted in Oxford, including experiments conducted on a monkey named Felix. The BBC film included footage of Felix and interviews with the professor conducting the experiments. PETA requested disclosure of information contained in the project licence which governed the experiments being conducted on Felix.
The university refused to disclose the information on the ground that the information was exempt under s. 38 FOIA (the health and safety exemption). Section 38 provides for a qualified exemption where disclosure ‘would or would be likely: (a) to endanger the physical or mental health of any individual; or (b) endanger the safety of any individual’.
The university’s view was that the information was exempt under s. 38 because there was a real and significant risk that, if disclosed, the information would be used by animal extremists to incite acts of violence against persons directly or indirectly connected with the experimentation. (It was not suggested that PETA itself was such an organisation.) The background to the university’s refusal was that certain animal extremists had been waging a violent campaign in Oxford for some time; their activities had included, for example, arson attacks and placing an incendiary device on college grounds. Importantly, following screening of the BBC documentary, extremist websites had published statements to the effect that Felix had become the symbol in the struggle against animal experimentation.
Following a complaint to the Commissioner, some information from the project licence was disclosed. However, the Commissioner refused the complaint in respect of the remainder of the information. PETA appealed the Commissioner’s decision to the tribunal. The tribunal heard evidence from a number of individuals including, on behalf of the university, a Detective Chief Inspector who gave detailed evidence as to the particular risks posed by animal extremists.
A summary of the tribunal’s judgment is set out below.
(1) The evidence showed that disclosure of the withheld information would in a real and significant way increase risk of endangerment to human health and safety resulting from animal extremist activity. Accordingly, s. 38 was engaged.
(2) Once it had been established that s. 38 was engaged, and hence the disclosure would risk endangering human health and safety, the public interest test would require a strong public interest in disclosure to avoid a conclusion that the public interest balance lay in favour of the exemption being maintained.
(3) In the instant case, the nature of the endangerment to health and safety, which included the risk of bombings and arson attacks, meant that there was in any event a particularly strong public interest in maintaining the exemption. Whilst this did not mean that s. 38 operated as an absolute exemption, it did mean that there would need to be an extremely strong public interest in disclosure to avoid the conclusion that the information should be withheld.
(4) The public interest scale in favour of withholding the information was given additional weight by virtue of the fact that the evidence showed that scientists would be so concerned about the dangers of disclosure that they would be deterred from engaging in work involving animal experiments. This risk, whilst only indirectly related to the s. 38 exemption, was not so remote that it could not be taken into account.
(5) On the facts of the case, there was no equally strong counter-veiling public interest in disclosure.
The tribunal’s approach as outlined in PETA is not altogether surprising given that it would be an odd result if FOIA could readily be used for accessing information where the access itself risked endangering human health and safety.
Kalman was not concerned with the application of s. 38 but rather the application of s. 24 FOIA (the national security exemption).6 The exemption was prayed in aid by the Department for Transport in respect of a request for disclosure of certain directions given by the Secretary of State to airports on the subject of airport security searches. Like s. 38, s. 24 is a qualified exemption and, hence, calls for an application of the public interest test. The Department for Transport refused to disclose the directions on the ground that s. 24 was engaged in respect of the information and the public interest balance weighed in favour of the exemption being maintained. The Commissioner refused Mr Kalman’s complaint against that refusal. Mr Kalman appealed to the tribunal.
Whilst the exemption in issue in Kalman was s. 24 rather than s. 38, issues of public safety lay very much at the forefront of the analysis. (In fact, Kalman is the first appeal in which s. 24(1) FOIA has been considered – cf. Baker v IC (EA/2006/0045) where the tribunal considered the application of the ‘neither confirm nor deny’ provision in s. 24(2).) This was not least because it was the Department for Transport’s case that disclosure of the directions would risk jeopardising the integrity of airport security searches and, hence, the safety of the flying public. The PETA judgment was cited in argument before the Tribunal. Judgment in Kalman is currently awaited.
Opinion of the Qualified Person – It’s All in the Timing
Section 36 FOIA provides for a number of qualified exemptions. In broad terms, they are aimed at ensuring that, as a result of disclosures under FOIA, there is no undue prejudice to the effective conduct of public affairs. The exemptions provided for under s. 36 are unique in the sense that the question whether they are engaged turns on whether a ‘qualified person’ (“QP”) has given the necessary ‘reasonable opinion’ that disclosure would or would be likely to cause the relevant prejudice. Thus, s. 36 provides that information: ‘is exempt information if, in the reasonable opinion of the qualified person, disclosure of the information [would or would be likely to cause the relevant prejudice]’.
An interesting question arises as to how s. 36 is to be applied in cases where: (a) no QP opinion was obtained when the request was originally responded to; but (b) such an opinion has been obtained subsequently, for example in the course of the Commissioner’s investigation or during an appeal to the tribunal. The reason this question arises is because:
(1) it is now well established that the question of whether information is to be treated as exempt is to be determined at the time the request was responded to, or at the latest by the time of the review, and
(2) if the relevant opinion had not been obtained by this time then arguably the information cannot be treated as exempt under s. 36 at any time thereafter (i.e. as the relevant triggering condition which enables the information to be treated as exempt for the purposes of s. 1 FOIA has not been met at the relevant time).
The question of whether s. 36 can be invoked after the time of the response/review has been considered in a number of cases.
(1) In Student Loans v IC (EA/2008/0092), the tribunal was called upon to consider this question in circumstances where the public authority had not relied on the exemption before the Commissioner but had sought to rely on it during the appeal. The tribunal concluded that it had no jurisdiction to consider the application of the exemption as: (a) its jurisdiction was confined to determining whether the Commissioner’s decision was correct in law and (b) the Commissioner’s decision could not be impugned for failing to take into account an exemption which had not been engaged at the time when the public authority was responding to the request.
(2) In Roberts v IC & DBIS (EA/2009/0035), the public authority did not rely on s. 36 when dealing with the request. However, it sought to place reliance on the exemption before the Commissioner. The tribunal took the view that s. 36 could only be invoked if the relevant opinion had been obtained at the time the authority was dealing with the request. In reaching this conclusion, the tribunal compared the s. 36 exemption, which uniquely is only triggered only where the authority has taken specific action to obtain a QP’s opinion, with other exemptions in FOIA which do not depend on any comparable ancillary action on the part of the public authority in order to be engaged.
(3) In UCLAN v IC (referred to supra), the public authority did not rely on s. 36 at the response stage but sought to rely on it before the Commissioner. No point was taken by the Commissioner on the timing of the invocation of s. 36. The tribunal confirmed (in a footnote) that it was not minded to follow Roberts.
Not least given the tribunal’s decision in UCLAN, It is highly likely that the reasoning in Roberts will be subject to further challenge in the future. In the meantime, it would be prudent for public authorities to ensure that they are always considering the application of s. 36 at the response stage.
Statistical Information and Personal Data
Section 40(2) FOIA affords an absolute exemption in respect of any information which:
(1) amounts to personal data for the purposes of s. 1 of the Data Protection Act 1998 (“DPA”) and
(2) would, if disclosed, breach any of the data protection principles contained in schedule 1 to the DPA. 36. Under s. 1 DPA, even if an individual cannot per se be identified from particular data, that data will still constitute ‘personal data’ for the purposes of s. 1 if a living individual can be identified ‘from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller’.
In the case of England & Bexley LBC v IC (EA/2006/0060), the information tribunal took the view that data confirming that particular properties in a local authority’s area were vacant constituted ‘personal data’ for the purposes of s. 1 DPA. This was because, whilst that data did not per se identify any individuals, it could be married up with data held by the authority in its council tax records so as to reveal the identity of persons who owned the vacant properties.
The question of the extent to which ostensibly anonymous statistical data can, despite their apparent anonymity, constitute ‘personal data’ for the purposes of s. 40 DPA was recently considered in the case of Department of Health v IC & Pro-life Alliance (EA/2008/0074). In that case, a request was made by the Pro-life Alliance for disclosure of certain statistical information held by the Department of Health in respect of abortions carried out in the UK.
In essence, the request was aimed at obtaining information which would reveal a breakdown of the number of abortions which had been conducted under ‘Ground E’ (abortions where there is a substantial risk that the child, if born, would be seriously handicapped). The Department refused to disclose the information on the ground that it was exempt under s. 40 (s. 44 FOIA was also relied on). The Commissioner upheld a complaint against the Department’s refusal. The Department appealed to the tribunal.
A summary of the tribunal’s conclusions on the application of s. 40 is set out below.
Is the statistical data ‘personal data’?
(1) The requested data amount to ‘personal data’ for the purposes of s. 40 because, whilst the data did not itself identify any individual, it could be read together with other data held by the Department so as to enable individual patients and doctors to be identified.
(2) This result could not be avoided by the Department ‘barnadising’ the data. (Barnadising data entails taking the data and adapting any low cell count figures so as to ensure that information about individuals cannot be extrapolated.) This is because the Department would still have access to other information enabling it to effectively de-barnadize the information and, hence, identify individuals. (In reaching this conclusion, the tribunal took into account the judgment of the House of Lords in Common Services Agency v Scottish Information Commissioner [2008] UKHL 47);
(3) the data would not cease to be ‘personal data’ merely because third parties (e.g. members of the public) would not have access to information enabling identification to take place. If the Department itself had access to such information then the data constituted ‘personal data’;
(4) even cells with a zero count amounted to personal data because, through a process of inference, they could reveal information about individual cases falling within other cells.
Would disclosure of the data breach the data protection principles?
(5) On the question of whether disclosure of the data would contravene the data protection principles, the central issue was whether the disclosure would contravene the first data protection principle (fair and lawful processing).
(6) So far as fairness was concerned, what was critical was whether mere disclosure of the data would itself create a real and significant risk that individuals would be identified or traced (i.e. as opposed to a scenario where identification came about as a result of additional information being provided by an insider within the Department or a scenario where a hospital inadvertently disclosed additional information enabling the individual to be identified). The evidence suggested that mere disclosure of the data itself at best created only a remote risk of identification.
(7) So far as the lawfulness of the disclosure was concerned, the issue was whether the disclosure would risk breaching Article 8 rights to privacy. Given that there was no real and significant risk of identification, Article 8 rights were not engaged. In the alternative, given the small nature of the risk, any interference with Article 8 rights was justified.
(8) On the facts of the case, a schedule 2 condition would be met in respect of the disclosure, namely the legitimate interests condition set out in paragraph 6 of schedule 2.
(9) Moreover, insofar as the data constituted ‘sensitive personal data’ a schedule 3 condition would also be met, namely the condition set out in paragraph 7(1)(b) of schedule 3 (disclosure necessary for the discharging of statutory functions).
(10) Accordingly, disclosure of the data would not contravene the data protection principles and, hence, the data was not exempt from disclosure under s. 40 FOIA.
The Department is currently appealing the judgment to the High Court on the ground that the tribunal erred in its conclusion that the first data protection principle would not be contravened by the disclosure of the data. The Commissioner is cross-appealing the tribunal’s conclusion that the requested data constituted ‘personal data’ for the purposes of s. 1 DPA.
The judgment in the Pro-life case should be read alongside the judgment of the tribunal in Magherafelt DC v IC (EA/2009/0047). Magherafelt, which was decided after the Pro-life case, concerned a request for disclosure of statistical information drawn from the disciplinary records of council employees. Following the approach adopted in Pro-life, the tribunal held that the statistical data did amount to ‘personal data’ for the purposes of s. 1 DPA. It then went on to consider whether disclosure of the data would breach the first data protection principle. It concluded that it would because this was a case where it would not be difficult for members of the public (e.g. journalists) to use the data to work out the identity of individual employees who had been disciplined. In other words, in contrast with Pro-life, this was a case where disclosure of the data itself would create a real risk of identification, even if the data taken in isolation did not per se reveal the identity of any employees.
…And In other News
Late Reliance on Exemptions
It is not at all uncommon for a public authority which is party to an appeal to the tribunal to seek to pray in aid exemptions which were not previously relied upon. To date, the tribunal has taken the view that it has a discretion as to whether to allow late reliance and that late reliance should only be permitted in exceptional circumstances (see further the recent case of Crown Prosecution Service v IC (EA/2009/0077).
In Home Office & Ministry of Justice v IC [2009] EWHC 1611 (Admin), the Home Office sought to argue before the High Court that, in fact, the tribunal had no discretion to refuse late reliance on an exemption. Thus, it argued that having regard to the legislative scheme embodied in FOIA if, at the time of the request, the information was exempt under FOIA, it was open to the public authority to rely on that exemption at any time, whether before the Commissioner or the tribunal. The High Court refused to rule on these arguments on the basis that they had effectively become academic in the context of the appeal.
In the recent case of DEFRA v IC & Birkett (EA/2009/0106), the tribunal followed the existing tribunal orthodoxy and refused to allow DEFRA late reliance on a number of exceptions contained in the EIR. It is understood that DEFRA may well seek to appeal this decision to the Upper Tribunal on the ground that, as was argued in the Home Office case, the tribunal has no discretion to refuse late reliance.
Counsel-Only Access to Closed Material
It is obviously the case that tribunal’s should seek to safeguard the confidentiality of any disputed information pending the outcome of the appeal. In practice, this generally means that any individual applicant/complainant who is party to the appeal will be denied access to the disputed information and also any closed session where that information is to be considered. But what of any counsel representing the applicant/complainant, should the tribunal as a matter of course exclude him/her from accessing the closed material and participating in the closed session? This is a question which the tribunal has considered in two recent cases.
In PETA, referred to supra, an interlocutory application was made by PETA’s counsel that he be granted ‘counsel-only’ access to the closed material in the case and, further, that he be permitted to participate in the closed session. The application was made on the basis that counsel would undertake not to relay any closed information or closed evidence to his client. The application was refused by the tribunal. In refusing the application, the tribunal took the view that it had powers to give the necessary directions under r. 5 of the Tribunal Procedure (First-Tier Tribunal) (General Regulatory Chamber) Rules 2009. However, it considered that the application should be refused particularly because:
(1) there were unavoidable risks that closed information/evidence might be conveyed to PETA through an accidental slip by counsel and, further, the difficulties which counsel would face in taking instructions from his client in circumstances where he knew those instructions could not be squared with the closed information/evidence; and
(2) it would be disproportionate to allow counsel-only access given that the tribunal itself operated on an inquisitorial basis and it could challenge any evidence being given by the public authority.
A similar approach was adopted in the very recent case of DEFRA v IC & Birkett (EA/2009/0106) where again an application was made for counsel-only access by the applicant/complainant.
It is interesting to compare these decisions with the recent judgments by the Court of Appeal in Home Office v Tariq [2010] EWCA Civ 462; Bank Mellat v HM Treasury [2010] EWCA Civ 483 and Bisher Al Rawi v Security Service & Ors [2010] EWCA Civ 482.
(1) In Tariq, the Court of Appeal held that it was not unlawful for an employment tribunal to hear evidence on issues affecting national security in closed session, albeit with the assistance of a special advocate to represent Mr Tariq’s interests. This was particularly in view of the fact that such arrangements were specifically permitted under the tribunal’s statutory rules of procedure. However, the claimant, who would not be given access to the closed session, had to be told the gist of the closed material so that he could fairly and effectively pursue his claims.
(2) Bank Mellat was similarly concerned with how the court should approach a case which, under relevant statutory rules (in this case CPR 79), the court could hear evidence and submissions in closed session. An issue arose as to whether HM Treasury was entitled to refuse to disclose to the Bank relevant documents which HM Treasury wished to have treated as closed evidence. The Court of Appeal held that it was permissible for the documents to be withheld, provided that the Bank was informed as to the gist of the information being withheld so that it could give effective instructions.
(3) Al Rawi, by way of contrast, was concerned with a civil claim for damages where there was no overarching statutory regime allowing for evidence to be dealt with in closed session. The claims had been brought by former Guantanamo Bay detainees in respect of their alleged treatment at the hands of the Security Services. In this case, the Court of Appeal, overturning the High Court’s judgment, held that it was not open to the defendants to adduce evidence in closed session: either they sought to have the evidence excluded from the proceedings altogether under the public interest immunity procedure or they were obliged to disclose the evidence to the claimants.
Query whether in particular the judgments in Tariq and Bank Mellat require a reconsideration of the way in which the information tribunal approaches the handling of closed evidence and submissions in appeals which come before it.
Interestingly, the European Court of Human Rights has very recently considered the question of whether the highly restrictive procedures adopted by the Investigatory Powers Tribunal – the IPT hears complaints by citizens of wrongful interference with their communications under RIPA, including claims that any interference breached their human rights – were compliant with Article 6: Kennedy v UK (application no. 26839/05). (The judgment also contains a detailed examination of the interception regime under RIPA). The IPT procedures allow for the use of closed evidence; for evidence to be heard in closed session and for parts of the determination to be withheld from the complainant.
The Court did not decide the question of whether Article 6 rights were engaged in respect of the procedures. However, it did conclude that, if Article 6 rights were engaged, the procedures would be Article 6 compliant, not least given the strong public interest in safeguarding the integrity of the system of State-sanctioned surveillance operations. In reaching this conclusion, the Court held that whilst the need to protect the integrity of secret surveillance operations justified the need for restrictions in the judicial process, the question was whether the restrictions operating within the IPT were ‘disproportionate or impaired the very essence of the applicant’s right to a fair trial’ (para. 186). Having considered the relevant procedures, the Court took the view that they were Article 6 compliant. The Court went on to confirm that it was proportionate and otherwise lawful for the Government to withhold documents and evidence which, if revealed to the applicant, would effectively disclose the sensitive information which ought, in the public interest, to be withheld.
This judgment reinforces the argument that, if and insofar as the information tribunal is required to disclose the gist of any withheld material to an applicant/complainant, it should only do so to the extent that that disclosure would itself not reveal, whether directly or inferentially, information which ought to be withheld pending the outcome of the appeal.
Property Search Information
It is well known that, in order to be able to sell a property, you have to obtain property search information. This information is typically held by local authorities. Given that much of the relevant property search information constitutes environmental information, the EIR will often be relevant to any application to access property search information held by a local authority.
In East Riding Council v IC & York Place (EA/2009/0069), the information tribunal was called upon to determine whether a local authority had erred under the EIR when it refused to allow a property search company to inspect certain property search information in situ in the council’s office free of charge. The local authority had sought to argue that that it was entitled to charge for permitting access to the information under r. 8 EIR. In particular, it argued that:
(1) it was not reasonably practicable to allow the applicant to inspect the information in situ in the council’s offices, particularly because the information was mixed with other information which should be withheld, including personal data; accordingly
(2) copies would have to be provided to the applicant; and
(3) the council was entitled to impose a reasonable charge for those copies under r. 8 EIR.
The tribunal rejected the council’s case. It did so on the basis that the council’s own evidence did not come up to proof on the question of whether it was reasonably practicable to permit inspection of the disputed information.
The judgment in East Riding, should be considered alongside the High Court’s judgment in OneSearch Direct v City of York Council [2010] EWHC 590 (Admin). OneSearch is a property search company. It sought to gain direct access to unrefined data held by the council which would enable it to answer relevant property search questions. The council refused to permit this direct access on the ground that it was entitled to provide the relevant property search information at a charge under the Local Authorities (England) (Charges for Property Searches) Regulations 2008. OneSearch sought to judicially review this decision. OneSearch’s application for judicial review was rejected by the High Court. The High Court held that it was entirely lawful for the council to provide the relevant information in accordance with the statutory scheme rather than by means of direct access. Notably, OneSearch did not seek to rely on the EIR in the context of this claim.
Anya Proops is a barrister at 11 KBW (www.11kbw.com).
Related articles
