Tag Archive for Decisions

FOI in Court

FOIMan lists court cases that have considered the Freedom of Information Act and Environmental Information Regulations.

Supreme Court building

The UK Supreme Court

You may have noticed that sometimes the decisions of the Information Commissioner and the First-Tier Tribunal (Information Rights – FTT) are a little inconsistent: between the Commissioner and the Tribunal, between different Tribunals, and sometimes even between different decisions of the Commissioner. This isn’t that surprising because in our system of law, the decisions of the Commissioner and FTT do not set precedent.

Precedent is a really important concept in English and UK law. Once a precedent is set, lower courts and decision makers must follow it unless the Government brings in legislation to change the ground rules. So decisions about FOI and the Environmental Information Regulations (EIR) made by the Upper Tribunal (and prior to that Tribunal being established, the High Court), the Court of Appeal, and the Supreme Court are really important in establishing how the legislation should be applied by public bodies.

It’s reasonably easy to locate decisions of the Commissioner and FTT. The Commissioner’s decisions are published on his website. The FTT’s are published on its site (though this is sometimes difficult to locate without a handy link). Court decisions can be found on the excellent BAILII site, but have to be searched for amongst lots of other case law.

In an attempt to make things easier for you (and for me) I’ve put together a page here at FOIMan.com which lists precedent-setting decisions. It’s not exhaustive, but I hope I’ve listed some of the important cases, and I’ll continue to update the list. What’s hopefully most useful is that I’ve sorted the list by section of the Act/Regulations. If you want me to add a case to the list, please do send me the link and I’ll add it for everybody’s benefit.

Photo by Rob Young from United Kingdom (Middlesex Guildhall, The Supreme Court, London) [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons.

 

Peeps [at the] diary

FOIMan looks at whether politicians’ diaries are fair game under FOI.

Diaries

The decision about Andrew Lansley’s diary is useful for FOI Officers

Not long after FOI came into force in the UK I returned to the office from an external meeting to find my boss looking a little frazzled. This was never good news at the best of times. Tentatively I enquired as to what had been going on. It turned out that the Evening Standard had published a two page splash on Ken Livingstone’s diary.

Splash, as it turned out, was the right word. It included details of the time he set aside for a morning swim. No cuts were in evidence, other than the haircut that was also reported. Someone at the GLA had disclosed the entirety of the Mayor of London’s diary under FOI. The Mayor’s adviser, furious, had apparently hauled the Head of Law out of a meeting to demand an explanation. The Head of Law had in turn tried to find me to find out what had happened, and had instead found my boss, which explained her state on my return. Thankfully, by the time I returned it had already been established that someone in the Mayor’s Office had – against procedure and advice – sent out the whole diary without asking for advice from me as to what exemptions could be applied to it. Phew.

Over time, I came to realise that diaries were a sensitive subject. And a decision by the First Tier Information Tribunal this week has reinforced that impression.

The appeal concerned a request for Andrew Lansley’s ministerial diary at the time that he was Health Secretary. The Department of Health had released some information but withheld much of the diary under a range of exemptions and other means. The Information Commissioner had ordered that much of the information should be disclosed.

The decision of the Tribunal contains some interesting gems. My particular favourite is the argument by the Department that diary entries relating to party political meetings immediately cease to be held by the Department after the meeting has been held. It’s one of those tortuous metaphysical contortions that only government departments appear to be capable of. The Tribunal unsurprisingly gave this short shrift.

Another argument advanced by the Department was that the Tribunal should defer to its arguments as to the public interest in withholding information under section 35 of FOIA (the exemption for policy formulation). In other words that there was a strong public interest in just accepting the Government’s version of events over anyone else’s. If this approach were to prevail, it would effectively be game over for any future attempt to overturn the use of section 35. Thankfully, the Tribunal was again dismissive of this argument.

I was surprised to realise that this decision was the first concerning disclosure of a ministerial diary at the Tribunal level. Given this, it’s a useful one for all FOI Officers, especially those who work in organisations where politicians exercise an executive role. The key learning points from this case are that:

  • there’s no blanket rule that Ministers’ diaries can’t be disclosed
  • instead, public bodies need to methodically analyse the contents and identify what exemptions might apply to each entry
  • entries covering personal and party political appointments are held – they might well be exempt as personal information for example, but they are held under the definition at s.3
  • regular pro-active publication of the Minister’s meetings and appointments does not satisfy the public interest in disclosure if it excludes certain appointments – for example in this case, quarterly publication of these details excluded video conferences and telephone calls which appeared in the diary.

For a more detailed analysis of the decision, including discussion of the decision’s comments on aggregation of public interest arguments, see Tim Pitt-Payne’s article on 11KBW’s Panopticon Blog.

The defeat of the Mysterious Veto?

FOIMan thinks it may be too soon to start celebrating yesterday’s ruling by the Court of Appeal that Prince Charles’ letters to Ministers should be disclosed, but argues that interpretation of European law may yet prove crucial in this case and for others.

An examination of s.53

FOIMan examines the offending section of FOIA

Yesterday’s judgment by the Court of Appeal, apparently overturning the use of the section 53 veto for the first time, was immediately welcomed by FOI campaigners, supporters and of course, journalists. And it is a victory – for now – for Rob Evans of the Guardian who has pursued the disclosure of letters from Prince Charles to Government ministers for 9 years.

Personally I would be very happy if this decision stuck. The ability of Ministers to overturn the considered decisions of the Information Commissioner, information tribunals, and ultimately the courts, is in my view as well as the Lord Chief Justice’s “a constitutional aberration” (para 2). But…I can’t help feeling that this decision is not the end of the road on this case.

Firstly, that’s a matter of fact. The Attorney General has been granted leave to appeal to the Supreme Court. And he’s already indicated that he intends to.

Secondly, as Jon Baines has already pointed out, the decision in relation to FOI seems at odds with the intention of Parliament. The reason for the veto was to allow ministers to overturn FOI decisions that they didn’t like. That was why the government of the day proposed the veto, and that was what Parliament voted for. That in the end was what Charles’ own mum gave assent to. The Master of the Rolls says that s.53 is “a remarkable provision”,

“because it seriously undermines the efficacy of the rights of appeal accorded by sections 57 and 58 of the FOIA.” (para. 39)

To which the answer is, well, yes, that was the point. Jack Straw, the Home Secretary who was responsible for taking FOIA through Parliament, told the Justice Select Committee (para 169) two years ago:

“Without the veto, we would have dropped the Bill. We had to have some backstop to protect Government.”

In its report at the conclusion of the post-legislative scrutiny, the Committee appeared to fully support the use of the veto in this way, and indeed suggested that its use ought not to be considered “exceptional”.

So my hunch – and I hope I’m wrong – is that the decision in relation to FOI will be overturned by the Supreme Court. Even if it isn’t, I could easily see an amendment to FOIA being passed with little opposition whatever party is in power to plug the gap. Celebrations of the death of the FOIA veto are likely to be short-lived.

However, I don’t think it’s all doom and gloom from this end of the bar. The Court of Appeal also ruled that the application of the veto to environmental information was unlawful. That seems to me a much stronger argument. The Environmental Information Regulations 2004 (EIR) are the UK government’s implementation of a European Union Directive. Article 6 of the Directive requires that:

“Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final…”

It is hard to see how the veto is compatible with that. And there would be little the government could do to change the law, short of leaving Europe altogether (which of course is possible but not in the immediate future).

The implications of that are several. First, many of Prince Charles’ letters apparently related to environmental issues, so if the Supreme Court quashes the Court of Appeal’s ruling on the FOI veto but upholds the ruling on EIR, then there may still be a significant disclosure of correspondence in this case. Second, there will be implications for another veto decision. Only at the end of January, the Transport Secretary vetoed the disclosure of a report on HS2. The report was viewed to constitute environmental information, so it is likely that if the Supreme Court upholds the Court of Appeal’s position on the veto and EIR, then that decision will be viewed as unlawful as well. Thirdly, it reinforces the already strong impression that EIR can be more effective at achieving disclosure than FOI (though of course this is only useful if you want to access environmental information – but that’s an increasingly broad spectrum of information thanks to case law).

Even in respect of my primary argument above, there is hope if the Supreme Court agrees that the veto is incompatible with European law. It was successfully argued in the Court of Appeal (paras 74-80) that the Attorney General had failed to consider in his certificate how the public interest in disclosure of non-environmental information would be affected if the environmental information had to be disclosed. If the Supreme Court does order the disclosure of the environmental information, it may therefore decide that the Attorney General’s veto certificate is flawed more generally – and rule that the rest of the letters must be disclosed as a result.

We’ll have to wait and see what the Supreme Court decides, so we have yet to hear the fat lady finish her scales let alone receive the rapturous applause of a satisfied audience. And as this particular battle for correspondence has so far taken 9 years, it appears a somewhat extreme example of the point I made in my last post. Getting access to correspondence is unlikely to be an easy – or quick – exercise.

Guest post: FOI Appeals – The Burden of Proof

FOI Man brings you a guest post from Dr Joe Reddington, a researcher at Royal Holloway, University of London, who asks where the burden of proof should lie when regulators consider appeals under FOI or FOI (Scotland).

I’m going to use this guest post to talk about something that’s been bothering me about burden of proof within Freedom of Information (FOI) Legislation. In this particular case, I’m going to use an example from the Scottish Information Commissioner (SIC).

Recently I completed a study into the supply of communication aids and, in the process, built an open-access data-set for other researchers. It was a worthwhile project that’s been (I believe) able to make a small difference in the lives of people I care about.  The project required a set of FOI requests sent out to NHS services to find out what equipment they were buying to help people speak (The study report includes some thoughts about the Freedom of Information processes).

I requested information from Borders Health Board and, following some difficulties, appealed to the Office of the Scottish Information Commissioner (OSIC). This post isn’t about Borders Health Board, so we’ll say as little as possible about them throughout this post, but you do have to know that I was asking about a particular set of equipment purchased by the Speech and Language team.

Once OSIC got involved Borders sent them a breakdown of their estimated costs to justify the refusal of the request. The two relevant bits are:

 

Note that Borders did not appear to have to provide any supporting documentation, or any support for the estimates. I understand that the policy of OSIC is to take them at their word and I applaud that we can do this on trust.

But one item caught my eye. It takes a Grade 6 employee five hours to write a special request that returns the list of invoices paid by a department? This is a mind-boggling fact, and a particularly worrying one.  If the NHS is operating systems that are so unwieldy that they it takes five hours for a highly trained user to input a simple query then the level of wastage and poor information flow in NHS departments must be shocking.

As a researcher, this interests me: because this suggests either a chronic lack of training or an almost criminal negligence on the part of the software providers.  This is the sort of thing I can write up and maybe bring some evidence out to the public.

My first move is to get a response from the software manufacturer about how they could supply such appalling software to a health service.

As it happens, the people who make the accounting software were a little bemused by my questions, but quite possibly slightly spooked by the idea that a crazy researcher was going to spend the next eight months writing up academic papers on why their software was killing the NHS. So a nice man from the company kindly drafted me a testimonial, which once we take away the careful sales talk, doesn’t really match up with Borders costings:

“The [accounting system] logs all spend against a cost centre and an expense type, this effectively records a financial code against the invoice saying who (or which department) that element of the invoice is for, and classifying the expenditure type. Further levels of analysis are available in the financial coding to enable any invoice or invoice line to be recorded against additional analysis codes, which are typically used to classify project or activity type analysis.

[…]

Running a report or enquiry in the system should be almost immediate, though how long the results take to come back depends on a range of factors outside our control such as the volume of data stored and the network bandwidth. Building a simple ad-hoc report through Business Objects will usually just take a few minutes, to drag and drop the fields required onto the report.”

I asked for clarification on the actual amount of time it should take to do the job that Borders claim is five hours and got:

I can only say how long it would take me to write the report, I’m not sure where you got the 6 hours from,  The drag and drop business objects report would typically take 5-10 minutes to write, by someone trained in its use such as myself. I am including in that the physical constructing of the report, but also the time I would probably spend up front thinking about how I want to order the fields etc. In terms of running the online enquiry and exporting to Excel, I would say start to finish 1-2 minutes.”

(I’d accidently said six hours to the company rather than five, which was utterly an error on my part)

So I’m now thinking ‘Borders have got a bit confused about either how their software works or about the request: simple misunderstanding, easy to fix’, rather than ‘evil software is killing the NHS’.

I sent off the testimonial to OSIC, pointing out that the people who make the software directly contradict Borders’ time estimates.

I receive a reply and the relevant bits are:

“Unfortunately the Commissioner is unable to accept what you have written below as corroborative evidence in itself. You will need to provide something in writing from [the accounting software company] – email format would be fine.

1.      Firstly, [the accounting software company] would need to confirm the name of the system, and that this system is the actual system in use by NHS Borders.

[…]

6.      Does the system that NHS Borders have include the “business intelligence and ad-hoc report writer”?

It should be around another 4 weeks before your decision will be drafted so there is time for you to ask [the company] to contact me with the above information before the decision is finalised. I will get in touch with you again to let you know when that will be.”

Let’s be clear. The public body is taken at its word automatically, but if third party evidence is provided that directly contradicts it, that’s not accepted automatically, because the named person making the testimonial entirely out of the good of his heart must contact the OSIC directly. I feel this is a little unfair.

Even more irritatingly, I’ve been asked to prove that this is the software used. Let’s set aside the fact that presumably the only way to do that is to get a written statement from Borders (I rang the finance department, who were lovely and simply and easily told me on the phone), the point is that Borders don’t need to prove the name of the system when they say it takes six hours, but I do when I have an expert with a testimonial that the job takes six minutes.

I don’t really feel this is a fair burden of proof. But that’s not too bad, I’ve got four weeks warning of an imminent decision, so I’m going to ask a guy who did me a favor to do me another (and incidentally irritate one of his customers), and I’ve got a couple of weeks to get some sort of written notification that Borders are currently using the system that they say they do when you phone their switchboard. I start doing that – the FOI has been going on since 11 January 2012 so I’m not going to give up.

13 days later, I get this:

“Dear Dr Reddington,

For your information please find attached a copy of the above decision and covering letter, both of which have been posted out to you today.

Kind regards…”

It turns out, not only do the public have a much higher burden of proof to bear for a FOI request, they have strangely different deadlines. “Another four weeks and I will contact you again anyway” becomes, the “decision notice will arrive at your office for 9am before the end of the following week”.

Some choice quotes from the public decision notice:

“No direct communication” is of course the same as “forwarding direct testimonials along with the contact details of the people who made the software so you can confirm, and then when you reject this approach, also agreeing to get them to contact you directly within four weeks, which by the way still has two weeks to go”.

If this is the balance of the burden of proof between members of the public and a public authority, then how can a public authority ever be ruled against by OSIC? All the public authority has to do is say it takes six hours to find the records, six hours to print them, and eight hours to review the information for ‘commercial information/private details/threats to national security’, whereas the public’s burden is… different.

 

Don’t Mention the Convention

FOI Man dispenses with convention to discuss the Attorney General’s decision to veto the disclosure of correspondence with the Prince of Wales.

Along with many others, I find myself disappointed but not surprised that the Government has chosen to veto the disclosure of letters from Prince Charles to Government Ministers following a Tribunal ruling that they should be disclosed to Rob Evans, the Guardian journalist who requested them.

I don’t doubt that the Attorney General, Dominic Grieve MP, gave this matter serious thought. He is not – unlike some politicians – given to knee jerk dogmatic decisions. At a post-legislative scrutiny hearing earlier in the year, his evidence was considered and perhaps surprising to the casual cynic. The explanation of his decision is well argued, but as ever with the veto, the explanation hasn’t really added anything to the arguments already dismissed at earlier stages.

It is gilded with the language of the constitutional convention. Another (excellent) blog post on this subject provides a working test for whether a convention exists:

“a constitutional convention exists if (i) there are precedents underpinning it, (ii) the parties to the relevant practice consider themselves to be bound by it, and (iii) there is a reason for the existence of the convention.” (Hayley J. Hooper referencing Sir Ivor Jennings (1959), The Law and the Constitution 5th ed.)

Whenever a decision is made not to disclose information under FOI, and a constitutional convention is used to justify it, it makes me uncomfortable. Because, in my view, FOI by its very nature challenges these conventions. It chops away at all three legs of that test. It is designed to ensure that information is made available that wasn’t before, and sets out a new process to decide what should and shouldn’t be disclosed – past precedent becomes irrelevant, or at most a useful guide. It is no longer the choice of the “parties to the relevant practice” who should decide, but (ultimately) the Information Commissioner or Tribunal – independent arbiters considering the public interest. And the reason for a convention existing is open to challenge from outside. Surely decisions as to whether to disclose information should not be based on a convention that has existed for years, but on the facts as they are at the time the information is requested. Conventions are made to be broken.

This has been my view for years. And it very much coloured how I dealt with a request for correspondence with Prince Charles.

Much to the displeasure of the Royal Household, the first time the Greater London Authority (GLA) received a request for such correspondence, I advised the Mayor’s Office that the correspondence should be disclosed. It consisted of a small number of invitations from both sides, and an equal number of apologies that the recipient could not attend such-and-such event due to a prior engagement. It was frankly dull. It was technically subject to the exemption covering correspondence with the Royal Household, but, as I argued to them, the existence of a public interest test meant that there must be circumstances in which such correspondence would be disclosed. And whilst there was nothing interesting in the correspondence, there was certainly a public interest in demonstrating how dull it actually was. So on the last day at work before Christmas, I sent the letters out to the journalist who had requested them. They were so incredibly dull (did I mention how dull they were?) that nothing was heard of this scandalous breach of constitutional convention ever again.

Not only did I not end up in the Tower (which would have been a short trip across the Thames), but the next time that we received a request I was invited for a meeting at the Palace. And yes, the tea came with Duchy Originals.

But let’s be serious. We live in a constitutional monarchy so we’re told. Most people assume that the Queen and the Royal Family have a purely symbolic role, leaving the running of the country to elected politicians, whilst they leap out of helicopters with fictional secret agents, and catch pneumonia in aquatic pageants. If Prince Charles is writing to Ministers claiming to be an “advocate”, and in terms that are “particularly frank”, then clearly my assumption – and that of millions of people across the country – is wrong. Either the Royal Family are mere figureheads for our country with no real power, or they seek to influence Government. They can’t be both. If it’s the latter, then I think there’s a public interest in at least some of their correspondence being available to us all, so that we can gain a true understanding of their role.