Freedom Of Information

Office of Communications (Respondent) v The Information Commissioner (Appellant) [2010] UKSC 3

Tue, 02 Feb 2010 22:13:14 GMT

Supreme Court Press Summary

The Information Commissioner ordered the disclosure of information held by Ofcom concerning the precise location of mobile phone masts. On appeal, the Information Tribunal found that the public interest in public security, and in the protection of intellectual property rights, were both engaged but that under each separate exception the public interest in disclosure outweighed the interest alleged by Ofcom. It dismissed the argument of Ofcom that under the Environmental Information Regulations 2004 the Tribunal should conduct a third balancing test weighing all the interests in favour of disclosure against all the public interests in refusing disclosure.

The High Court upheld the Information Tribunal.

On appeal, the Court of Appeal overturned the Tribunal. It held that the Regulations must be construed in the light of European Directive 2003/4/EC, which they implement. The language of both documents supported an aggregate weighing exercise to assess the overall public interest.

JUDGMENT
The Supreme Court unanimously holds that the appeal raises an issue of general principle and that the answer is not obvious. Different members of the Court hold different views on the correct construction of Environmental Information Regulations 2004, and Directive 2003/4/EC which they implement. Consequently, the Supreme Court is under a duty to refer the question in the appeal to the European Court of Justice.

REASONS FOR THE JUDGMENT

The question referred to the European Court under Article 267 of the Treaty on the Functioning of the European Union is:
“Under Council Directive 2003/4/EC, where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception (in casu, the interests of public security served by article 4(2(b) and those of intellectual property rights served by article 4(2)(e)), but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, does the Directive require a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure?”
A majority of the Court would have upheld the judgment of the Court of Appeal. The majority consider that there are certain linguistic clues in the Directive which favour an aggregate weighing exercise which considers the overall public interest. The diversity of reasons is a positive reason to accumulate them, and certain heads already involve more than one public interest.
The minority of the Court also finds linguistic clues in the Directive to suggest that no cumulation of factors is possible given the disparate public interests involved which considered together would produce incongruities and be impractical.

Guardian News & Media Ltd v Information Commissioner, Information Tribunal, EA/2008/0084

Thu, 06 Aug 2009 15:24:40 GMT

Details of disciplinary action against judges exempt from disclosure:-The Information Tribunal upheld the Commissioner’s decision to refuse an application by a Guardian journalist for an order that the Ministry of Justice release details of all disciplinary action taken against judges by the Lord Chancellor since 1998. Such information was exempt from disclosure under both section 40 (the information was personal data and disclosure would breach the first data protection principle) and section 31 (it would not be in the interests of the administration of justice to release the information).

Sugar (Appellant) v British Broadcasting Corporation and another (Respondents), [2009] UKHL 9

Wed, 11 Feb 2009 23:00:00 GMT

The BBC holds a report that it commissioned in respect of its coverage of the Middle East (“the Balen Report”). Mr Sugar asked the BBC to provide him with a copy of this report. He contended that the report was held by the BBC for purposes other than journalism, art or literature and that, in consequence, the BBC held it as a public authority and was bound by the Freedom of Information Act 2000 to communicate its contents to him. The BBC disagreed. (“the journalism issue”)

Mr Sugar challenged the BBC’s response before the Information Commissioner. The Commissioner upheld the BBC’s contention. Mr Sugar appealed to the Information Tribunal. The BBC and the Commissioner argued that the Tribunal had no jurisdiction. The Tribunal held that it had jurisdiction and purported to exercise this by reversing the Commissioner’s decision on the journalism issue. The BBC then brought, simultaneously, an appeal under the provisions of the Act and a claim for judicial review. The claim succeeded. The court held that the Commissioner had determined that he had no jurisdiction. He had made no decision that was susceptible to an appeal to the Tribunal under the Act. The Tribunal had acted without jurisdiction and its decision could not stand. (“the jurisdiction issue”)

Mr Sugar made a cross-application for judicial review, challenging the Commissioner’s decision on the journalism issue. This challenge failed. Davis J upheld the Commissioner’s finding that, for the purposes of Mr Sugar’s application to it, the BBC was not a public authority. He held that the Commissioner had rightly held that he had no jurisdiction. He added that he would not have granted relief in any event, for further material events had occurred since the date of the Commissioner’s decision.

Mr Sugar appealed to the Court of Appeal on the jurisdiction issue alone. His appeal failed. The court upheld the lower court’s decision that neither the Commissioner nor the Tribunal had had any jurisdiction to entertain Mr Sugar’s challenges. Mr Sugar appealed to the House of Lords.
The House of Lords, by a majority of 3:2, allowed the appeal. The Commissioner did have jurisdiction to resolve the issue that Mr Sugar raised in his letter of complaint against the BBC. Mr Sugar had made an information request to the BBC, which was a public authority within the meaning of 2000 Act. Further, the Tribunal had jurisdiction to make the decision that it did.

Common Services Agency (Appellants) v Scottish Information Commissioner (Respondent) (Scotland), [2008] UKHL 47

Wed, 09 Jul 2008 08:47:00 GMT

This appeal arises out of a request by Mr Collie to the Common Services Agency under the Freedom of Information (Scotland) Act 2002 to provide the details, by census wards, of all incidents of leukaemia for both sexes, in the age range 0-14, by year, from 1990 to 2003, for all of the Dumfries and Galloway postal area.

The Agency confirmed that it held the data for the period up until 2001. But the Agency declined to supply the information since it took the view that, because of the small number of cases in each ward, there was a significant risk of indirect identification of living individuals. For that reason, the Agency considered that the information which had been requested was likely to constitute “personal data” as defined in s.1(1) of the Data Protection Act 1998. That being so, it considered that the data constituted exempt information which Mr Collie was not entitled to be given in terms of ss.1(1) and (6) and 2 of the 2002 Act.

Mr Collie appealed to the Scottish Information Commissioner. The Commissioner was satisfied that the information sought by Mr Collie was indeed personal data and that disclosing it in its entirety would entail a breach of the first data protection principle in para 1 of Sched.1 to the 1998 Act, because its disclosure would be unfair and unlawful. However, the Commissioner went on to hold that the information should be provided, “suitably amended to protect against potential identification of individuals".

The Agency appealed to the Court of Session. The First Division refused the appeal. The Agency then appealed to the House of Lords.

The House of Lords held (unanimously) that the appeal should be allowed. The House held that the proper course would be for Mr Collie’s application to be remitted to the Commissioner so that he could determine whether the information could be sufficiently anonymised for it not to be “personal data". If the Commissioner decided that it could not be so anonymised, he would then need to consider whether its disclosure to Mr Collie would comply with the data protection principles. In order to satisfy the first of the data protection principles listed in sched.1 he would need to decide whether information in that form would also be “sensitive personal data", so that at least one of the conditions in sched.3 of the 1998 Act (the processing of sensitive personal data) must be met as well as at least one of the conditions in sched. 2 of that Act (the processing of personal data).