Information law update, February 2013

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1 Information law update, February 2013 PRACTITIONER S INFORMATION LAW UPDATE 1. This newsletter, the second of a regular monthly series, aims to provide a succinct overview of the most significant developments in caselaw over the past month, February Data Protection Cases 2. The Court of Appeal (CA) re- established orthodoxy in Keith Smeaton v Equifax plc [2013] EWCA Civ 108. The case involved liability for inaccurate personal data held by a Credit Reference Agency (CRA). The CA overturned the decision of the judge below, emphasising that the mere fact that personal data was inaccurate was not enough to amount to a breach of the fourth data protection principle (that personal data shall be accurate and kept up to date). It was also necessary to show that the data controller had not taken reasonable steps to ensure the accuracy of the data. Furthermore, the CA rejected the argument that a CRA also owed a co- extensive duty of care in tort to the members of the public whose data it held. The comprehensive statutory regimes for the regulation of personal data and of the credit industry excluded the possibility of a co- extensive duty in tort. 3. The First- tier Tribunal (FTT) considered the application of the data protection principles to audio- surveillance in taxis, in Southampton City Council v IC EA/2012/0171. The Council had required that all licensed taxis should be fitted with digital cameras, taking continuous audio recordings. There was no complaint about the visual images recorded, but the Information Commissioner decided that the audio recordings were in breach of the data protection principles. He issued an enforcement notice under s40, DPA. The Council appealed to the FTT, but was unsuccessful. It was common ground that if the policy of making audio recordings breached Article 8 ECHR, it would not amount to lawful processing for the purpose of the first data protection principle. The FTT agreed with the ICO s view of the requirements of Article 8, holding that, although the activity was adopted for legitimate ends (to promote public safety and reduce taxi- related crime), it was not proportionate. The Council had to justify the need for audio- recordings, when compared with the benefits that would be secured by retaining the visual feed alone. The FTT held that the considerable interference to privacy rights caused by such audio recordings outweighed the marginal benefits likely to result from them, in terms of promoting public safety and deterring crime. 4. Finally, the FTT has refused an NHS Trust permission to appeal to the Upper Tribunal after the FTT s rejection of a challenge to the 90,000 monetary penalty notice issued by the IC: see January s case of Central London Community Healthcare NHS Trust v IC (EA/2012/0111). The Trust s application to stay the payment of the monetary penalty was also rejected. The Trust still has the right to renew its application for permission to appeal to the Upper Tribunal.

2 Upper Tribunal decisions the time- limit for lodging an appeal. 5. The case of AW v IC [2013] UKUT 048 (AAC) highlights the change in the test for allowing appeals from a decision of the Information Commissioner to proceed, when served out of time. In the old Information Tribunal (Enforcement Appeals) Rules 2005, the Tribunal could accept an appeal served outside the requisite 28 day period so long as it [was] of the opinion that, by reason of special circumstances, it is just and right to do so. By contrast, there is no requirement for special circumstances in the Tribunal Procedure (First- tier Tribunal) (General Regulatory Chamber) Rules 2009/1976. Rule 5(3)(a) sets out a more general power to: extend or shorten the time for complying with any rule, practice direction or direction, unless such extension or shortening would conflict with a provision of another enactment containing a time limit. 6. The appellant, Mr Wise, served his appeal over five months late. The First- Tier Tribunal Judge held that there were no special circumstances to justify granting permission to appeal out of time. Notwithstanding that the Judge had adopted the language of the 2005 Rules, the Upper Tribunal upheld the decision and dismissed Mr Wise s appeal. There was still a need for some sort of a strong case to justify admission of a late appeal, within the context of the new Rule 5(3)(a). Upper Tribunal decisions striking out for no reasonable prospect of success 7. Under Rule 8(3)(c) of the Tribunal Procedure (First- tier Tribunal) (General Regulatory Chamber) Rules 2009/1976, the Tribunal may strike out the whole or a part of the proceedings if it: considers there is no reasonable prospect of the appellant's case, or part of it, succeeding. 8. In AW v IC and Blackpool CC [2013] UKUT 030 (AAC) the Upper Tribunal summarised the relevant principles applicable to a strike- out:- it is only appropriate if the outcome of the case is, realistically and for practical purposes, clear and incontestable. It is not usually appropriate if facts relevant to the ultimate outcome of the case are disputed. (see Judge Edward Jacobs in Tribunal Practice and Procedure, 2nd edn, 2011, at 12.39). 9. The Upper Tribunal accepted that there was an arguable inconsistency between two relevant Decision Notices, such that there was then plainly a contested issue of fact to be resolved. In consequence, albeit that AW s case may not have been strong, it was not hopeless. Since a full hearing and evaluation of evidence was required, the appeal was allowed. Upper Tribunal Prince Charles Correspondence 10. The dispute concerning access to correspondence between Prince Charles and Government Ministers continues to rumble on. As is well known, Mr Rob Evans request for such advocacy correspondence was upheld by the Upper Tribunal in September 2012 (see Evans v IC [2012] UKUT 313 (AAC)). However, in October a certificate was issued by the Attorney- General overriding that decision, under s53 FOIA. On 9 January 2013, Mr Evans commenced judicial review proceedings, seeking to quash the certificate. Mr Evans also asked the Upper Tribunal for a separate decision on his request for disclosure of lists and schedules itemizing the correspondence and its subject matter. The Tribunal held (see 2013 UKUT 75 AAC) that this issue had not been dealt with in the earlier September decision and, following the logic of its previous decision, decided that the lists and schedules should also be disclosed. 2

3 First- Tier Tribunal decisions s32 (court records) 11. In Peninsula Business Services Limited v IC (EA/2012/0122) the Tribunal considered the proper approach to the exemption under s 32 FOIA for court records, in light of the Court of Appeal s decision in Kennedy v IC [2011] EWCA Civ 367 ( Kennedy ). Section 32 protects documents held only by virtue of being contained in documents filed with a court for the purposes of legal proceedings, or similar. 12. A request was made to the Ministry of Justice for the names and addresses of all respondents to employment tribunal cases, in a specified period. This information had been gathered by Tribunal staff from claims and responses, and inputted into a database, a case management system used by Employment Tribunal offices, but supplied and managed by the Ministry of Justice (MOJ). The appellant argued that whatever the original reason for gathering the information (i.e., case management), as it continued to be held in the MOJ s ETHOS system it must be held for separate and distinct purposes, and could no longer be seen as being held only by virtue of being contained in documents filed for the purposes of proceedings. 13. The FTT rejected this argument. It did not accept the argument that the decision in Kennedy supported a narrower construction of s32 FOIA. The basis of the Court s decision in Kennedy was that the words for the purposes of the inquiry (in s 32(2)) or for the purposes of proceedings in a particular cause or matter (in s 32(1)) were to be interpreted as to relating to the reason why the document was placed in the custody of the court or inquiry in the first place, rather than as relating to the purpose for which the document was now held by the authority. So the FTT endorsed a but for test, stating that: But for the fact that these individuals were involved in legal proceedings, ETHOS would not have these details on record at all. The focus should be on how the information came to be held by the public authority, and not on the subsequent uses to which it was put. First- Tier Tribunal decisions s40(2) ( personal data ) 15. Requests for the disclosure of personal data such as staff names continue to generate litigation, the latest decision being Cialfi v IC EA/2012/0183. This concerned a request from an investigative reporter to Sheffield Hallam University, asking it to provide communications and invoices relating to the charity Common Purpose, including the names of senior staff members who attended the courses or processed payments to the charity. This request took place in the context of an increasingly hostile campaign against Common Purpose. It was a campaign that the Tribunal held went past critical journalism to include allegations that involvement with Common Purpose was linked to brainwashing, corruption, bullying and paedophilia. 15. The University relied upon the s40(2) FOIA exemption to refuse to disclose the names of its staff members, and the IC agreed. The FTT dismissed an appeal. It accepted that even senior staff would have an expectation that the information would not be disclosed. Staff going about their ordinary jobs, for example attending University committee, might expect that information about this would be released. But whilst attending the course, staff were not representing the University; this was information pertaining to personal development notwithstanding that it might also have a benefit to the University. 17. The Tribunal further accepted the University s argument that in light of the hostile campaign against Common Purpose, publication would cause damage and distress to data subjects. See, by way of a parallel, the earlier case of Wild v IC and Chief Constable of Hampshire Constabulary (EA/2010/0132), 3

4 where the names of police officers attending pre- hunt meetings with organisers of a hunt were not released. Where there is a risk to staff safety or similar harm if names are disclosed, a public authority will be justified in adopting a cautious approach. 18. Finally, the Tribunal found that, since the University s expenditure on the courses as well as the fact that the courses were not put out to tender was information already in the public domain, the disclosure of the names of staff involved would not significantly further the legitimate interest in the public being able to scrutinise how public money is spent. 19. In John Evans v The Information Commissioner EA/2012/0199, the FTT dismissed an appeal against the IC s decision that information regarding payments made in respect of the repairs of property held under a Council lease was exempt under s40(2) FOIA. Payments made under an individual s residential lease fell squarely within the sphere of his private life, and there was no adequate justification for releasing information about them. The conclusion of the FTT is not surprising; the case is chiefly interesting as a result of the FTT s preference for examining whether the condition in paragraph 6(1) of Schedule 2 to the DPA was fulfilled, before turning to the issue of overall fairness. When assessing whether the first data protection principle has been breached, the Commissioner s approach has generally been to advocate assessing whether or not disclosure would be fair (as well as lawful), before turning to the question of whether conditions in Schedule 2 (or 3) of the Data Protection Act have been met. If disclosure is not fair, there will be no need to consider whether or not any of these conditions have been fulfilled. However, the FTT reverted back to the approach taken in the earlier MPs expenses cases (see Corporate Officer of the House of Commons v IC [2008] EWHC 1084 (Admin)), when it expressed a preference for starting with the analysis of paragraph 6(1) of Schedule 2. This required it to consider the necessity of making disclosure to meet a legitimate interest, and whether such release would amount to an unwarranted interference with the rights and freedoms or legitimate interests of the data subject. Generally, examination of the rival starting points of fairness and the Schedule 2 (or 3) conditions will lead to the same conclusions about whether disclosure would be justified. But readers may feel that an initial concentration on paragraph 6(1) of Schedule 2 leads to a more focused and rigorous enquiry than a focus on the more diffuse concept of fairness. Eleanor Grey QC, Catherine Dobson, Jennifer Thelen and Annabel Lee 39 Essex Street 7 March 2013 Feedback on this newsletter is welcome: eleanor.grey@39essex.com 4

5 CONTRIBUTORS Eleanor Grey QC has been litigating cases in the Information Rights Tribunal since its creation. She has been involved in many notable cases, including the three House of Commons MPs expenses cases. She regularly advises public authorities on issues of data protection and access to information. She is rated by Chambers and Partners as a notable practitioner in the field of data protection. To view full CV please click here. Jennifer Thelen has a broad practice encompassing regulatory and public law, general commercial law, education and employment law. She has acted for a range of regulators including the Office of the Rail Regulator, Ofgem (undertaking secondments at both) and HMRC. She regularly advises public entities on their obligations under the FOIA and DPA. To view full CV please click here. Catherine Dobson s public law practice encompasses local government, Court of Protection, community care, immigration, planning, environmental and human rights law. Catherine has a particular interest in information law, which she teaches as part of the constitutional law course at Cambridge University. To view full CV please click here. Annabel Lee has advised public bodies in relation to their obligations under the Data Protection Act 1998 and the applicability of various exemptions under the Freedom of Information Act Annabel has conducted extensive research into freedom of information and data protection issues and she has also presented seminars on the topic. To view full CV please click here. David barnes Chief Executive and Director of Clerking david.barnes@39essex.com Alastair Davidson Senior Clerk alastair.davidson@39essex.com Michael Kaplan Senior Clerk michael.kaplan@39essex.com Sheraton Doyle Practice Manager sheraton.doyle@39essex.com For further details on Chambers please visit our website: London 39 Essex Street, London WC2R 3AT Tel: +44 (0) Fax: +44 (0) Manchester 82 King Street, Manchester M2 4WQ Tel: +44 (0) Fax: +44 (0) Singapore Maxwell Chambers, 32 Maxwell Road, Singapore # Tel: +44 (0) Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number 0C360005) with its registered office at 39 Essex Street, London WC2R 3AT. Thirty Nine Essex Street s members provide legal and advocacy services as independent, self-employed barristers and no entity connected with Thirty Nine Essex Street provides any legal services. Thirty Nine Essex Street (Services) Limited manages the administrative, operational and support functions of Chambers and is a company incorporated in England and Wales (company number ) with its registered office at 39 Essex Street, London WC2R 3AT. 5