Tag Archive for Environmental Information Regulations

Prince Charles’ letters and the Veto

FOIMan explains why the ruling of the Supreme Court in relation to Prince Charles’ “black spider memos” is so significant – and why FOI campaigners should be cautious in their celebrations.

logoshirtOn 1 January 2005, FOI came into force. Later that same year, the Guardian’s Rob Evans made Freedom of Information requests to government departments for correspondence with Prince Charles, the heir to the throne. Ten years later, the Supreme Court has finally ruled that those letters (or many of them at least) must be disclosed. The full story of those ten years – together with many of the key court decisions – can be read in Matt Burgess’s excellent piece on the FOI Directory site.

This ruling is important – and for me, pleasantly surprising. After the Court of Appeal considered this case last year, I gave my analysis on this blog, and it turns out I was wrong. Though not entirely. My prediction was that the Supreme Court would rule that the veto was legitimate in relation to information subject to FOI, but that the European law that underpins the Environmental Information Regulations (EIR) would lead to a ruling that the veto cannot apply to environmental information. As it turns out, the Court ruled that the veto was not legitimate in either case, though there was more support from the Justices for the veto not applying to EIR (6:1 as opposed to a 5:2 ruling on the use of the veto in relation to FOI).

Huge congratulations are due to Rob Evans and the Guardian. Rob and the Guardian have been persistent in pursuing the release of the letters, even when all around (or many of us) were sceptical of their success. But I now want to consider the implications of this judgment for FOI and EIR.

Firstly, what does this mean in terms of the release of correspondence between members of the Royal Family and public bodies? One of the reasons that this case is so important is that it is now pretty much the last chance any of us will get to see what is said in correspondence like this, unless it is leaked (or relates to environmental matters – see below). This is because FOI was amended in 2010 – during the wash-up of the last government – to make the exemption covering relations with the monarch and their two nearest heirs absolute. This means that the government and other public bodies will be able to refuse all future requests for correspondence with Prince Charles under FOI. This ruling will not change that. But at the time of Rob Evans’ request, the exemption was subject to a public interest test, and that is how we have reached this point. If the correspondence is released, then that will be the last FOI disclosure of Prince Charles’ letters.

That said, the ruling is significant in terms of environmental information. Given the Prince’s known interest in environmental matters, it is likely that public bodies will hold many letters from the heir that would fall under the EIR. All the exceptions (the EIR equivalent of exemptions) under EIR are subject to a public interest test, and this judgment makes clear that Ministers cannot exercise the veto in relation to any decision to disclose information falling under EIR. So we may well see future disclosures of correspondence from Prince Charles relating to environmental issues.

But in many ways, the most important implication of this ruling has nothing to do with the Royal Family. The point of this appeal was to consider whether the Attorney General was entitled to exercise the controversial veto at section 53 of FOI. And the judgment says some pretty important things about the veto.

It says that it is not enough for government ministers to disagree with Commissioner, Tribunal and Court rulings on FOI – the use of the veto has to be justified:

“…it appears to me that there is a very strong case for saying that the accountable person cannot justify issuing a section 53 certificate simply on the ground that, having considered the issue with the benefit of the same facts and arguments as the Upper Tribunal, he has reached a different conclusion from that of the Upper Tribunal on a section 57 appeal.” para. 68 of the judgment

But it also confirms the view expressed by the Lord Chief Justice in the High Court decision on this case that the veto itself is “a constitutional aberration”. The ability of the executive to overturn the decision of a court of law:

“…would be unique in the laws of the United Kingdom and would cut across two constitutional principles which are fundamental components of the rule of law, namely that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the executive are reviewable by the courts, and not vice versa.” Press Summary

So the effect of this ruling is to call into question almost all use of the veto, certainly up to this point, and potentially in the future. This is a huge defeat for the government.

Without wanting to pour cold water on well-deserved celebrations, that is exactly the reason why I think we need to be cautious. Governments don’t like huge defeats. And the veto has been used by both the last two governments. David Cameron has already released a statement saying that the law will need to be amended to reinforce the veto and make its future use clear and unassailable. Speaking at 11KBW’s Information Law Conference last week, barrister Tim Pitt-Payne, who has represented the Commissioner as well as government departments in FOI cases, expressed his view that if this ruling went against the government, it was likely to reopen the question of the application of the section 35 exemption for policy formulation. When the Justice Select Committee examined FOI three years ago, it decided that section 35 didn’t need to be strengthened, as the veto provided a backstop for government if it needed to protect internal discussions.

Today’s ruling will lead to another period of reevaluation of FOI by government, and may well provoke attempts to provide more protection for government information. FOI campaigners and others will need to be vigilant.

 

 

FOIMan News

FOIMan highlights some recent developments of interest.

NEWS1

Water utilities are not subject to FOI. However, they are apparently subject to the Environmental Information Regulations according to a new Upper Tribunal decision. The long and complex decision has been reproduced on the Panopticon blog.

In the perennial debate over its cost, Tim Turner has used FOI to demonstrate that one police force complaining about the expense of answering requests from the public spends over 6 times as much on public relations staffing as it does on FOI support.

On the Data Protection front, the Alzheimer’s Society has published a guide to Accessing and Sharing Information when acting on behalf of someone with dementia.

Training and other services

Over the last year I’ve been invited to deliver in-house training for a number of clients including local authorities, schools and universities. I’ve updated my Training page if you’d like to know more, and you can also download a leaflet about my services. Get in touch for a quote if you’re thinking about ways to improve your colleagues’ awareness of FOI, data protection, local government transparency or records management.

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.

Information Commissioner signals new approach to vexatious requests

FOI Man reviews new guidance from the Information Commissioner around the controversial issue of vexatious requests.

Ever since the important decisions made by Judge Wikeley in the Upper Tribunal earlier this year, it has been inevitable that the Information Commissioner would have to change his approach to the use of the vexatious provision within FOI. Combined with suggestions in the post-legislative scrutiny last year that it should be easier for public authorities to refuse vexatious or frivolous requests, the Commissioner’s relative reticence in his guidance and decisions appeared out of step with political and legal developments.

So today, the Information Commissioner’s Office (ICO) has published new guidance on Dealing with Vexatious Requests (section 14(1)), as well as on the related subjects of Manifestly Unreasonable Requests (regulation 12(4)(b) of the Environmental Information Regulations) and Repeat Requests (section 14(2)). And the approach of the Commissioner appears to have changed fairly radically. The guidance starts strongly by stating that:

 “…public authorities ought not to regard Section 14(1) as something which is only to be applied in the most extreme circumstances, or as a last resort. Rather, we would encourage authorities to consider its use in any case where they believe the request is disproportionate or unjustified.”

The emphasis now is on requests which “cause a disproportionate or unjustified level of disruption, irritation or distress”. Out have gone the Commissioner’s notorious 5 questions. In their place come 13 – count ‘em – 13 “indicators” based on the ICO’s experience of dealing with section 14. These aren’t “qualifying criteria” and authorities are discouraged from spending too much time trying to fit the facts to them. It is stressed that they are there purely as a handy guide.

The guidance suggests a process for establishing if a request causes a disproportionate or unjustified level of work. Authorities should:

  1. consider the purpose of the request if apparent and any wider public interest
  2. balance this against the impact on the authority
  3. take the context and relevant history into account

The ICO have taken some key areas of contention and talked about how they might be affected by this new change in emphasis.

Burdensome requests should if possible be refused under section 12 (the acceptable cost limit). However, following on from last year’s Salford City Council v Information Commissioner Tribunal decision, the ICO now accept that section 14 could be used to ‘plug the gaps’ in the fees regulations, for example, where redaction would take a long time (redaction can’t be included in cost estimates for the purpose of section 12). It is clear though that the ICO will take some convincing in particular cases before accepting this use.

Round Robins, requests sent to several authorities at once, are mentioned. Public authorities can point to the fact that a request has been sent to other organisations, but the judgment as to whether a request is vexatious must only be made on the basis of the burden on themselves.

Controversially, perhaps, “fishing expeditions” are singled out, and journalists identified as the main perpetrators. This common tactic – where a requester makes a very broad request in the hope of catching a juicy titbit in their net – is widely criticised by public bodies, and one senses that the Commissioner has finally found a way to offer a modicum of reassurance to authorities on this issue. Whilst the Commissioner stops short of saying that all such requests will be vexatious (and indeed adds the usual caveats), it is interesting that the practice is highlighted as an area that might legitimately attract the use of section 14.

The guidance isn’t all one way. Authorities are warned that they need to “absorb” a certain amount of disruption and annoyance. And the guidance often seems to go out of its way to persuade public bodies to try just about anything else to avoid section 14. A whole section is dedicated to “Alternative approaches”. Nonetheless, the guidance does seem to indicate a significant change of emphasis from the ICO, and one that will be welcomed by many public authorities.

If you’re still hungry for more after all 37 pages on section 14(1) of FOI, there is still the guidance on manifestly unreasonable and repeated requests to digest. Handily for both the ICO and busy FOI Officers, Judge Wikeley found that the exception for manifestly unreasonable requests in the EIR should be interpreted in the same way as section 14(1) of FOI. So the first part of the ICO guidance says just that – if you think a request for environmental information is effectively vexatious, you should follow the guidance on vexatious requests under FOI.

It does however spend more time considering how the exception should be applied to requests that would be expensive to answer. In a nutshell, there will be circumstances where it is appropriate to refuse burdensome environmental requests under this provision (as Judge Wikeley noted in Craven), and section 12 (and the related fees regulations) of FOI may provide some pointers, but authorities should expect to provide more environmental information than they would other information.

The guidance on repeated requests (FOI section 14(2)) uses new improved examples to make the same points that have been made before. There is nothing fundamentally new here to take on board.

Interestingly, tied in with all this new guidance for public authorities is a guide for requesters on How should I word my request to get the best result? How can I describe it? It’s…it’s…well, it’s a sort of Code of Practice for requesters on the best ways to avoid being labelled as vexatious. That reminds me of something…. (see Recommendation 7)

Anyway, the guide contains some handy dos and don’ts and advises requesters that their request will be more effective if it is CLEAR, SPECIFIC, FOCUSED, UNTHREATENING. Whilst those are the ICO’s capitals, many FOI Officers would probably add SPARSELY CAPITALISED. Seriously though, it will be helpful if more prospective requesters can be pointed towards guidance like this.

So overall this new guidance will be welcomed by FOI Officers, though with some reservation. Whilst it answers a lot of questions, some may well ask how a single sentence in the Act can require so many pages of explanation. There are points where the ICO appear to want to have their cake (to be seen to encourage public authorities to utilise this provision) and to eat it as well (to be seen to discourage its use). One can understand why the regulator has difficulty here, but it limits the comfort that might be offered to authorities by this guidance. And until we see decisions of both Commissioner and Tribunals backing the approaches spelt out here, many will remain nervous of using this provision. But this is a significant step in the right direction.

Is the ICO cutting corners? And pasting them?

FOI Man asks if reduced resources are causing the Information Commissioner to cut corners on important FOI decisions.

In legislative terms, FOI and its sidekick, the Environmental Information Regulations (EIR), are spring chickens. We’re still feeling our way through their implications, which is why, from time to time surprising things crop up.

One thing that’s important to know, you’d think, is where the boundaries lie. Who is subject to the duty to answer requests and who isn’t.

Recently the Royal Household was asked for information under the Environmental Information Regulations. It is quite clear that the Household is not subject to FOI, but EIR is a different beast, as the Duchy of Cornwall (run for the Duke of Cornwall’s benefit, or Prince Charles as you and I know him best) has discovered.

The request was rejected on the grounds that the Household is not subject to the EIR, and as you might expect, an appeal was made to the Information Commissioner.

Last week the requester received the Commissioner’s decision. It – perhaps unsurprisingly – found in favour of the Royal Household. But what is surprising is that it appears that large parts of the decision’s reasoning have been copied and pasted from Wikipedia and the Royal Household’s own website.

Now I’m not going to crow about the rights and wrongs of plagiarism (though others have criticised them for this). I’m sure there are FOI Officers out there who have copied chunks of the ICO’s decisions into their own FOI responses without citing them where it suited. And it’s not difficult to see how a slip up like this could be made by a junior caseworker working on a minor case where the issues are not of great potential dispute.

But it does seem odd to me that on a decision as important as this, potentially establishing the boundaries of environmental information access, argument could be taken from other sources, apparently with little critical thought. And that internal quality controls didn’t pick that up.

Could this be evidence of a lack of resources at the ICO potentially affecting the quality of decision making? Given recent reports that the ICO faces further significant cuts (in line, of course, with other parts of the public sector), this may be a worrying sign.