Alistair Sloan, Advocate

Judges unite in support for retaining corroboration

October 17th, 2012

Yesterday the Senators of the College of Justice, excluding Lord Carloway, published their response to the Government’s consultation paper arising out of Lord Carloway’s report into reforming Scottish criminal law and practice.

Lord Carloway was asked by Justice Secretary Kenny McAskill MSP to investigate and report the ways in which Scottish criminal procedure could be reformed. This followed the UK Supreme Court’s controversial decision in the case of Cadder V HM Advocate. That case, as I’m sure readers will know, held that the Scottish practice of detaining suspects without access to a lawyer breached their article 6(1) right to a fair trial. As a result emergency legislation was introduced to the Scottish Parliament which provided for the right of suspects to receive advice and representation from a solicitor while in police custody. Lord Carloway’s report considered some of the issues that had arisen as a result of that legislation; issues which had not been properly considered because of the speed at which the Government pushed the amendment through Parliament.

The most controversial aspect of Lord Carloway’s report was his recommendation that the ancient requirement for corroboration be abolished. Since the publication of the Carloway Review; the Justice Secretary has made his position clear on the matter (that he supports Lord Carloway’s recommendation) and both the Lord Advocate and Solicitor General have gone into a political drive in support of its abolition.

Much concern about the proposal of Lord Carloway has been noted since the publication of his report. Many in the legal profession have come out in support of keeping corroboration and referring to it as an essential safeguard. Some have suggested the desire of the Government and the Crown to abolish corroboration is about trying to making it easier for the Crown to obtain a conviction. Others have suggested that the abolition of corroboration wouldn’t be a bad thing, but that other changes would be necessary to ensure that the right of the accused to a fair trial was not placed in jeapordy.

For what it is worth I am of the opinion that corroboration is absolutely essential to the criminal law in Scotland and that any attempt to abolish it would likely have severe consequences for the accused. I am also of the opinion that the move to abolish corroboration may, in part, be supported by the government with a view to increasing the number of convictions the Crown can obtain. That, in my view, would (if indeed it is part of the motivation) make it a very bad idea because it distorts justice (see this earlier post from me on Justice published on this blog).

The consultation response from the Senators of the College of Justice provides a glimmer of hope for the continued existence of corroboration in Scotland. All of Lord Carloway’s colleagues have united in support for corroboration leaving him on his own among the senior judiciary in Scotland. The weight and authority of the Senators should also cause the Justice Secretary to reconsider his position on the future of corroboration. When almost all of Scotland’s senior judiciary (who are responsible for upholding the law) you certainly be foolish to ignore them.

In the judge’s response to the consultation they state:

In our view, it is often difficult to assess the true facts on the basis only of the evidence of one witness. A witness may be credible and plausible, yet not be telling the truth (or the whole truth). The Scottish courts have on many occasions been grateful for the requirement of corroboration, which in our view provides a major safeguard against miscarriages of justice.

There is little to say about this submission from the judges. It will always be the case that a case will be stronger the more there is to verify the evidence. The judges make a good point that simply relying on one witness is not particularly helpful. As they state a witness can appear as though they are a reliable witness, but the truth of the matter is that their version of events are not an accurate reflection of what happened. They state that corroboration acts as a major safeguard against miscarriages of justice. This is something that I would agree with entirely.

We are also concerned that the abolition of corroboration may result in less diligent police investigation pre-trial: knowing that corroboration is not required, there may be a relaxation in the search for supporting evidence (even though such may well exist).

This is an interesting point and is certainly one that is echoed by the few police officers I have spoken to. They state that it wouldn’t necessarily be about being lazy, but it would be a sensible way to use resources (particularly at a time when resources are under pressure). Of course, in the most serious or complex investigations there is unlikely to be much change. The very nature of such investigations is that corroborative evidence would still likely exist. The danger exists in the less complex and serious investigations. While they might be less complex or serious in terms of the gravity; a criminal investigation is sufficiently serious to ensure that a thorough and effective job is done. The effect on the life of a person who is convicted of a criminal offence can be significant: they may lose their job, seeking employment becomes more difficult, there may be financial hardship and the stress of an investigation and trial can cause marital and family problems. We cannot allow a situation to develop where it is more likely that innocent people will suffer the effects of a wrongful conviction. That is, in my view, a much greater injustice than a guilty person escaping conviction.

The judges also raise interesting points on the issue of increasing convictions. Their view is that rather than increasing the number of convictions it might well cause a reduction in the number of convictions obtained by the Crown. They cite a possible reluctance on the part of a jury to convict where it is a situation of one person’s word against the word of another. The senior judiciary have a wealth of experience from which they can draw such conclusions and I wouldn’t want to disagree with them on that point. It does, with a bit of consideration, seem like a conclusion that can be sensibly arrived at.

The judges broadly support Lord Carloway’s other recommendations, which are less controversial and do make sense in light of the line of authority developing as a result of Cadder. Their response can be read here.
Release of Prince Charles letters blocked by Attorney General

October 16th, 2012

The Attorney General, The Rt. Hon. Dominic Greive QC MP, has today signed a certificate under Section 53 of the Freedom of Information Act 2000 which overturns the decision of the Upper Tribunal (Administrative Appeals Chamber) in Evans v The Information Commissioner and Seven Government Departments ([2012] UKUT 313).

Section 53

Section 53 has become known as the “ministerial veto” and has been used by the current Government the most since the Freedom of Information Act 2000 (FOIA) came into force. The veto gives an “accountable person” the right to issue a certificate in relation to any decision of the Information Commissioner, the tribunals or courts regarding an information request made pursuant to the Freedom of Information Act 2000 which has the effect of overturning the decision of the Commissioner, tribunal or court.

In essence it places a public authority given powers to make us of s.53 as the final arbiter in a dispute over whether they were correct to withhold information requested under the FOIA. It was a key condition placed on the legislation by Jack Straw, the Secretary of State for Justice when the FOIA went through Parliament. The Commissioner, Tribunals and Courts are there to act as independent arbiters who can look at the case with “fresh eyes” and perhaps more objectively than the public authority or applicant can. However, at the end of the day the Government remains the ultimate controller of what information it holds it releases.

The Evans requests

The requests in question were made by Rob Evans, a journalist at the Guardian newspaper, in 2005. They sought the content of correspondence between HRH Prince Charles, the Prince of Wales, and the Ministers of seven departments of central government. Those departments were: Department for Business, Innovation and Skills; Department of Health; Department for Children, Schools and Families (now the Department for Education); Department for Environment, Food and Rural Affairs; Department for Culture, Media and Sport; Northern Ireland Office and the Cabinet Office.

There exists, by way of constitutional convention, a right for the heir to the throne to be educated in Government business in order to prepare him (or her) for becoming King (or Queen). The convention also provides that such correspondence is confidential and its existence or content should not be disclosed.

Upper Tribunal Decision

The Information Commissioner and First-Tier Tribunal sided with the Government and held that the public interest in maintaining the exemption (ss.37, 40, 41 of the FOIA and Regulations 12(5)(f) and 13 of the Environmental Information Regulations 2004). However, the Upper Tribunal disagreed and in a 65-page judgment outlined the reasons why it decided that most of the withheld information should be released.

It could be argued that there is no public interest in the constitutional convention which provides a right for the heir to the throne to be educated in Government business and for those pieces of correspondence to be confidential. That argument is a simple one of democracy given that the Monarch is unelected and in a democracy unelected officials should really not be in a position to influence the way in which a democratically elected Government conducts its business. This is an argument that I am minded to agree with, but I won’t set out my reasons in full for this here as it really does stray beyond the aim of this post. However, I shall return to the influencing Government point later.

The Upper Tribunal has accepted the constitutional convention and applied it in this case. Some of the information withheld properly, it decided, fell within the scope of that constitutional convention. However, much of the correspondence that was withheld was not, in the Upper Tribunal’s mind, covered by the convention. That correspondence was lobbying by HRH The Prince of Wales, sometimes on behalf of others. It was nothing more than correspondence trying to persuade the Government to take a different course. The Government receives many such letters each year from a wide variety of people. All those letters would more than likley be capable of being obtained by way of in FOIA information request. The difference in this case was that the lobbying was coming from the Royal Family and potentially has the influence behind it to cause a change of Government policy. We might never really know whether the Government changed its policy on things as a result of correspondence received from HRH The Prince of Wales.

Constitutional conventions are not, the Upper Tribunal rightly pointed out, law. They do not have the same position as a written constitution (such as in the United States of America) and have nowhere near the same effect. They are essentially, in a lot of cases, nothing more than Parliamentary and Governmental etiquette. The Upper Tribunal points to the convention that says a Prime Minister must resign from office if, after a general election, he (or she) ceases to lead a party with the majority of seats. This is a good example of a convention to look at (and indeed we can look only to a few years ago to see it in operation). Following the 2010 General Election the Labour Party no longer had the majority of seats in the House of Commons. No party did, by the largest party was the Conservative Party. While they did not have a majority they arguably had a mandate to govern the United Kingdom (certainly more of a mandate than the other parties did). However, Gordon Brown remained Prime Minister for several days following the General Election. Even once the Conservatives and Liberal Democrats had agreed to enter a Coalition there was nothing, in law, requiring Gordon Brown to resign as Prime Minister. It is simply etiquette that when a Prime Minister looses an election he resigns (essential in a democracy, but not legally required in the United Kingdom).

The Upper Tribunal was placed in a rather unusual position in this case. It was being asked to consider the extent of a particular convention rather than a purely legal question. The Upper Tribunal looked at the convention and reached a decision which, from its judgment (and common sense), appears to be a sensible one which gives effect to the convention protecting correspondence educating the heir to the throne in matters of Government policy. Discussion of this particular convention can be found in paragraphs 89-112 of the Upper Tribunal’s judgment.

The judgment of the Upper Tribunal is lengthy and I don’t want to spend too much time on going through it. However, the key to understanding the Upper Tribunal’s decision is quite simple, in my view, it rests on the content of the correspondence. We know from the Tribunal’s decision that HRH The Prince of Wales has been writing to the Government to lobby them on a wide range of issues. This is not new news to us and has been covered elsewhere, such as in a Biography of HRH by David Dimbleby. There is, I would submit, a strong public interest in the extent of Prince Charles’ lobbying of the Government. Someone who is unelected and has as much power and influence as the Royal Family do, particularly senior Royals, must be subject to a level of scrutiny and the public interest in that is greater by the mere fact that they are not elected (in my view).

I won’t say anymore on the Upper Tribunal’s judgment. I have linked to it at the bottom of this blog post and will now move onto the Attorney General’s s.53 certificate.

The veto of the Upper Tribunal’s decision

The decision to veto the Upper Tribunal’s decision that a large quantity of the withheld information ought to be released is a serious blow to democracy in the United Kingdom. The Attorney General’s reasons for vetoing the release of the information read more like reasons for releasing the information than not.

The Attorney General makes reference to these being “The Prince of Wales’ most deeply held personal views or beliefs”. The Monarch is, by constitutional convention, supposed to be politically neutral. Releasing the information cannot harm the Prince of Wales’ political neutrality because that was harmed the moment his views were communicated to the Government through his correspondence. If the Prince of Wales is willing to set out his views prior to taking to becoming King then it is not unreasonable to consider that he might be willing to use his influence as Monarch (when he becomes the Monarch) in expressing his views in the future.

This decision from the Attorney General is clearly wrong and undemocratic. It strikes at the very heart of what the Freedom of Information Act aims to do. It is open for Mr Evans to seek a Judicial Review of the Attorney General’s decision to use Section 53 of the FOIA. I hope that he will do so, supported by the Guardian Newspaper. To date the use of the veto by the Government has gone unchallenged and it risks the democratic process if the Government are not properly held to account over doing so.

Links
Evans v the Information Commissioner and Seven Government Departments [pdf]
Statement of Reasons for use of veto by the Attorney General [pdf]
Criticism for government veto over release of Prince Charles’ lobbying correspondence
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August 28th, 2012

It seems that after more than 7 years of being law, some public authorities still fail to fully understand their obligations under the Freedom of Information Act 2000 (FOIA). The Act, which came into force in January 2005, provides access to information held by a large number of public authorities.

Liverpool Community College appears to fail to understand its obligations under the Act. This is a conclusion that can be arrived at after seeing some responses to requests made through the “What Do They Know” (WDTK) website. The college’s dedicated page on the WDTK website shows a clear and consistent failure to comply with the FOIA.

Each request submitted through the website has not been responded to by the college other than to point them towards the College’s website on FOI or to state that a form must be completed and sent to the college. The college’s website also suggests that the only way in which a request for information can be made to the College is to send a form to the College. This is in clear breach of the FOIA.

The FOIA only sets three requirements for a FOI request to be valid. Those requirements are set out in Section 8 of the FOIA, which reads:

(1)In this Act any reference to a “request for information” is a reference to such a request which—

(a)is in writing,

(b)states the name of the applicant and an address for correspondence, and

(c)describes the information requested.

(2)For the purposes of subsection (1)(a), a request is to be treated as made in writing where the text of the request—

(a)is transmitted by electronic means,

(b)is received in legible form, and

(c)is capable of being used for subsequent reference.

As can be seen the Act is quite clear; a request can be transmitted by electronic means. The WDTK website works by sending an E-mail to the authority from a randomly generated address which is linked directly to the request thread created by the user. It is, in short, a request being made by E-mail.

Once a public authority has received a valid request for information their obligation to respond in accordance with the Act begins. They might have a preference as to how requests are received, but if a request is made in accordance with the requirements in Section 8 of the FOIA then the authority is obliged to respond to the request.

The Information Commissioner’s Office summarised their position on both WDTK and E-mail as methods of making a request for information pursuant to the FOIA in this letter to Rother District Council.

Hopefully someone will draw the College’s attention to the fact that they are not acting in compliance with the FOIA. It is hard to believe that after 7 years of operation some public authorities still do not understand the most basic elements of the FOIA. It is essential that the college is able to identify a valid FOIA request. Requests could be found within correspondence sent to the college in pursuance of other matters (e.g. a complaint) and a failure to identify a request or to deal with a request obviously labelled as one that has not come in on the College’s request form is a blatant technical failure. There is certainly a training need at the College around the FOIA and hopefully that will be addressed once the College is aware of its mistakes.
Council appeals taxi recording Enforcement Notice

August 17th, 2012

In July the Information Commissioner’s Office (ICO) served an Enforcement Notice against Southampton City Council over its requirement that all licensed taxi cars must record both audio and visual from within its vehicles on all journeys. The Enforcement Notice was issued by the ICO using powers conferred on the Information Commissioner under the Data Protection Act 1998.

The City Council’s policy requires that all taxis and private hire vehicles which it licenses are fitted with audio and visual recording equipment and that this is recording at all times regardless of the purpose for which the vehicle is being used. For example, a private hire taxi driver will likely use the car to transport their family or friends in the way that most people will use their vehicles (e.g. taking their children to school or extra-curricular activities, going to visit family, going for family day trips etc.) Even in such situations the Council’s policy mandates that the vehicle is recording visual images and audio. The private telephone conversations of the driver and his passengers will be recorded as will private conversations between passengers and conversations between the driver and his family. All the recordings will be stored by the Council.

Such a policy is, to any reasonable person, an extreme interference with a person’s right to a private and family life. It affords no private space to the driver or their passengers. The driver is unable to switch the equipment off when using the vehicle for personal use or to afford passengers privacy when making or receiving private telephone calls.

The Information Commissioner’s decision that Southampton City Council should stop the practice seemed to be a sensible one. Certainly in my view the compulsory recording of both visual images and audio in vehicles regardless of the type of journey being made is a step too far. It is with regret that the City Council has decided to appeal the decision to the First-Tier Tribunal (Information Rights).

The Council contends that it takes steps to protect privacy by ensuring that the data is encrypted and assuring everyone that the recordings are only looked at when a complaint is made to the City Council or the police. In support of its policy the City Council cited a number of allegations of sexual assault made against a licensed driver in a licensed vehicle where the allegations could not be taken forward due to a lack of evidence. The City Council intends to use this evidence as well as other examples where the cameras were in use in support of its appeal.

There is no doubt that the constant video and audio recording of the inside of taxis and private hire vehicles will produced evidence that can cast light on allegations of criminality and also complaints against drivers. That, it would appear, is not in dispute. It seems to me that the City Council are entirely missing the point. The processing of data (which includes the actual recording and not just the storing and/or watching) must be fair. While the existence of the recordings could be useful in the investigation of a complaint or an alleged criminal offence one must consider the fairness to record even the private journeys of drivers while they are not on duty. That at least should be considered as an unfair processing of personal data even if you accept the invasion of privacy involved in recording all journeys made while a driver is on duty.

There are some arguments in favour of requiring all journeys regardless of purpose to be recorded. For example, it would ensure that drivers cannot “forget” to turn the equipment on when they begin driving officially and it ensures that drivers cannot switch the equipment off or delete recordings in order to evade prosecution for an offence. However, these considerations do not appear to me to be sufficient justification for a blanket policy such as the one instigated by the Council.

The City Council is entitled to appeal the enforcement notice, but I hope that they see sense and abandon the appeal. In the event that the City Council decide to continue with the appeal I hope that the Tribunal will reject it and uphold the Commissioner’s enforcement notice. The City Council really has gone too far with this policy.

Links
Enforcement Notice (pdf)
Council takes ICO to Information Rights Tribunal over cameras in taxis (Local Government Lawyer)
Validity of Information requests: Copies of documents or Information

August 14th, 2012

The Freedom of Information (Scotland) Act 2002 (FOISA) provides a right of access to recorded information held by public authorities. Section 1(1) of FOISA says:

A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.

There are exceptions to this general entitlement, found within Part 2 of the Act, but they are not relevant for the purposes of this article.

The general entitlement is the right to information rather than copies of documents, letters etc. What this means is that under FOISA anyone is entitled to be provided the information contained within documents, letters, E-mails, notes etc. unless the information contained within the document is exempt. Where some information is exempt and some is not then the public authority must provide the information that is not exempt if it falls within the scope of a request.

This issue has been considered by the Court of Session in Glasgow City Council and Dundee City Council v The Scottish Information Commissioner 2010 S.C. 125. In essence, insofar as this article is concerned, found that the right that FOISA provides is one to the information contained in the documents rather than the actual documents.

Following the Glasgow City Council case in the Court of Session the then Commissioner, Kevin Dunion, issued guidance to public authorities on information requests and the effect of the Court of Session’s judgment. At paragraph 3.4 of that guidance it states:

Therefore, where an applicant has asked for a copy of a document and it is reasonably clear in the circumstances that it is the information recorded in the document which the applicant wants, the public authority should respond to the request as a request properly made under FOISA. A reference to a specific document is a commonplace way of describing the information sought and can be of assistance to an authority in identifying and locating the information. Such a reference can also benefit the authority by limiting the scope of the information request, e.g. to that contained in a minute of a certain date.

This seems a somewhat reasonable piece of guidance to be issued to public authorities. It would be the common sense conclusion of a public authority when faced with a request for a specific document or set of documents to assume that the requestor wants the information to be found with that document or set of documents. Why else would they be asking for the document if they were not interested in its contents?

As a public authority is not obliged to provide copies of documents and only the information to be found within the document it is not necessary for a public authority to send a copy of the document in question to the applicant. They could summarise its contents or they could copy and paste the content of the document into an E-mail or indeed into another document. When the request is for the entire content of a document then it is often easier for the public authority just to provide a copy of the document in question (and often this is often the basis upon which a response is issued). Where only part of the document falls into the scope of the request then, sensibly, public authorities will usually provide an extract of the document.

There are problems with simply providing summaries of whole documents, or indeed summaries of only parts of documents, rather than the actual content. Applicants are entitled to a complete and accurate version of the information (paragraph 4.1 of the Commissioner’s Guidance). When public authorities start to issue only summaries of documents they run the risk of failing to provide all the information that falls within the request for information. This was demonstrated recently in Mr Tom Taylor and the Chief Constable of Strathclyde Police. In this case Mr Taylor had asked the Chief Constable of Strathclyde Police (“Strathclyde Police”) for copies of certain pieces of correspondence. Strathclyde Police relied on the Glasgow City Council case and supplied only a summary. “This comprised a table specifying the correspondence type, its subject matter, date and the sender and recipient.” (Decision 131-2012, paragraph 3)

The Commissioner found this summary to be inadequate. The decision notice states at paragraph 63:

In his application, Mr Taylor commented that, although the information disclosed in response to request 1 was described as being a summary, he had not in fact been provided with a summary of the information.

The decision notice continued at paragraphs 67 and 70:

In this case, Mr Taylor’s request was very clearly specified, indicating the subject of and the parties to the correspondence of interest to him, along with a period of approximately six months. Given that Strathclyde Police were able to provide a list of relevant correspondence, it is clear that they were able to locate that information. The Commissioner therefore considers that Mr Taylor made a valid request for information for the purposes of FOISA, effectively seeking all information within the correspondence he specified.

…..

By seeking copies of the documents, Mr Taylor made it clear that he wished to receive the information in full rather than a summary or digest. Strathclyde Police’s response neither provided the information requested, nor gave any proper notice to indicate why the information had been withheld.

As a result the Commissioner found that Strathclyde Police had failed to fully comply with Part 1 of FOISA by failing to provide Mr Taylor all of the information that fell within the scope of his request. In this instance it would have been far easier for Strathclyde Police to provide redacted copies of the correspondence while, in accordance with their duty to provide advice and assistance, to refer Mr Taylor to the Glasgow City Council case and advise him that he is entitled to the information contained in documents rather than copies of the documents

The Commissioner has been critical of the way in which Strathclyde Police have handled this request for information. I have been aware of instances where Strathclyde Police have been what can be described as rather pedantic about the way in which it interprets requests and ignores the Commissioner’s guidance. Although, my own personal experience of requesting information from Strathclyde Police is that they have been helpful and I’ve rarely had any real complaint with their responses.

Rosemary Agnew, as the new Information Commissioner, has signalled her agreement with the position adopted by the previous Commissioner when it comes to handling requests for information where the request seeks copies of documents. However, there are a number of ways in which you can avoid receiving responses from public authorities which are nothing other than pedantic.

Mentioning specific documents in requests is a great help to public authorities as it restricts the amount of searching that has to be done in order to locate the information you are seeking. This reduces the chances of getting a refusal based upon the cost of complying with the request and certainly complies with the requirement at Section 8 to describe the information you are seeking. However, rather than asking for copies of documents the Commissioner suggests that you ask for the information contained in a document. For example, a request for “copies of correspondence between X and Y” becomes a request for “the information contained in correspondence between X and Y”. Personally, when I make information requests I will usually ask for the “content” of documents or correspondence.

This decision notice provide valuable guidance for applicants and public authorities. It also serves as a warning to public authorities who might consider responding to requests for information by providing summaries or digests of the information contained within documents.

Links

Freedom of Information (Scotland) Act 2002
Glasgow City Council and Dundee City Council v The Scottish Information Commissioner
Commissioner’s Guidance following Glasgow City Council case
Decision 131/2012 Mr Tom Taylor and the Chief Constable of Strathclyde Police
Persistant or Vexatious?

August 13th, 2012

Vexatious requests (and indeed vexatious requestors) has been a battleground since the introduction of the Freedom of Information Act 2000 and Freedom of Information (Scotland) Act 2002. Both the FOIA and FOISA look at the request rather than the requestor when it comes to considering a vexatious request. While other contact between the requestor and the public authority can (and will) be considered it is not about proving that the requestor is a vexatious requestor (in the way a court can declare a litigant as vexatious), but rather demonstrating that their request is vexatious.

The UK Information Commissioner has recently issued a decision notice looking at Leicester City Council’s use s.14(1) of the FOIA and made some interesting comments regarding the Council’s handling of this particular request.

The complainant has a history of corresponding with the Council over issues to do with it’s compliance with a particular section of the Licensing Act 2003. There were more than 150 pieces of correspondence given to the Commissioner by the Council in support of its position that the requestor was vexatious. There are a number of interesting facts about this case which appear to have influenced the Commissioner’s decision.

The Council is required to make certain information available to the public upon request by the 2003 Act. Leicester City Council makes this information available online and is therefore easily accessible to members of the public via the Council’s website. However, the Council did not seek to rely on the exemption at s.21 of the Act (information otherwise available). One can only speculate as to the Council’s reasoning for this, but it might be influenced by the following facts. The Complainant in this case only ever corresponded with the Council and the Commissioner by way of handwritten letters. The Commissioner said, at paragraph 9, that the complainant’s letters demonstrated “no indication of any familiarity on the part of the writer with any branch of information technology.” This is interesting in that it appears as though it might have gone someway to influencing the Commissioner’s decision. 150 pieces of correspondence on a very narrow subject might normally be something that would be expected to fall within the scope of s.14(1), even more so when the information is routinely published on the Council’s website.

Another part of the Commissioner’s decision that is of interest is what the Commissioner had to say at paragraph 42 of the Decision Notice which stated:

The council is at risk of misleading itself in regarding the complainant as vexatious and going on to conclude that therefore his information requests are vexatious

The FOIA talks about a request as being vexatious and not a requestor and this is confirmed through a long line of decisions from the Commissioner and Tribunal. A requestor’s previous contact with a public authority can be considered, but only in determining that the request is vexatious. This is a very real danger for all public authorities when they are dealing with information requests from people who they have regular contact with.

The Commissioner also considered Thackeray v Information Commissioner and said “that the complainant’s dogged pursuit of a line of enquiry should not be lightly characterised as an obsessive campaign of harassment.”

There is a fine line between presistently enquiring into something and harassing the authority. This is an important distinction because if it does not exist someone investigating something which the public interest clearly demands the continued investigation of then they would be hindered as their requests would become vexatious and this would give the public authority an absolute way of avoiding embarrassing or damaging matters from being investigated.

The Commissioner’s decision in this case seems to be, to me anyway, an interesting one. I’m not prepared in this case to say whether I agree or disagree with the Commissioner’s decision as I’m not aware of the full facts. Clearly the ICO has seen something in this case that sets it apart from other similar cases. Perhaps the complainant’s lack of IT skills and access had something to do with it, perhaps there is something in the submissions which means it wouldn’t be in the public interest for the Commissioner to find that the request was vexatious. There is no public interest test built into s.14 of the FOIA, but the case law in this area does certainly suggest that public interest considerations have been taken into account when defining the scope of s.14.

I’m not going to criticise Leicester City Council over this case as I have only the Commissioner’s decision to consider. However, it will be interesting to see whether the Council appeals this decision to the Tribunal.
Technical meanings and Information Requests

August 6th, 2012

Last week Rosemary Agnew, the Scottish Information Commissioner, issued another important decision under the Freedom of Information (Scotland) Act 2002 (FOISA). In finding that the Scttish Ministers had breached Section 1(1) of the FOISA by interpreting a request in an unduly restrictive way the Commissioner reminded public authorities that they need to think like the public when considering a request.

In decision notice 122/2012 the Commissioner considered a request for information made to the Scottish Ministers regarding the awarding of a Damehood to Elish Angiolini, former Lord Advocate. The applicant had sought “information on the awarding of (and any proposal to recommend) a Damehood (DBE) to former Lord Advocate, Eilish Angiolini, including the identity of who in the Scottish Government recommended her for the honour.” (Para 1). Following investigation by the applicant, he discovered that there was a difference between “nomination” and “recommendation” in the honours process. The Ministers refused to accept that the applicant’s request was inclusive of both and sought to argue that the applicant was trying to widen his request at this stage. The Commissioner was not convinced.

In her decision, the Commissioner, states that she did “not consider that the distinction between the two [nomination and recommendation] is generally known” (para 19) nor that the applicant “intended to make such a distinction in his request” (para 19). The Commissioner said, also at paragraph 19, that:

It is unrealistic to expect those who make information requests to be aware of the technical or specialised language used by public authorities

The Commissioner also decided that the Scottish Ministers were entitled to rely on Section 18 of FOISA to refuse to confirm or deny whether information was held by them which fell within the scope of the request (on a proper interpretation of the request).

This is one thing that has infuriated me a lot with certain public authorities. When public authorities use words in a different way from the ordinary meaning they should not expect the public to be aware of this and should interpret requests accordingly. If they are unsure as to the meaning of the request (and it is reasonable for them to be unsure) then they always have the option of seeking clarification from the applicant.

This decision is a clear signal to public authorities subject to FOISA that they must not interpret requests in an unduly narrow way based on the technical use of words where the technical use of that word is not commonly known to the public. Common sense should have dictated to public authorities prior to this decision that such interpretations would likely be contrary to both the letter and spirit of the Act.

This is another sensible decision from Scotland’s new Information Commissioner which strengthens the Act and provides strong guidance to public authorities on the practical operation of FOISA.
Justice Committee’s FOIA conclusions – Part 2

July 27th, 2012

Yesterday the Justice Committee published its report into the Freedom of Information Act 2000 (FOIA) following its post-legislative scrutiny of the Act. I have already looked at the committees report insofar as it relates to the big FOI battles and in this post will look at the recommendations of the Committee that will strengthen the Act. You can read the first blog post here.

One of the big frustrations about the way in which the FOIA operates currently is the way in which public authorities can kick requests into the long grass. Under s.10(1) of the FOIA public authorities must respond promptly to a request and no later than 20 working days following its receipt. There is an exception to this time limit provided for in s.10(3) of the FOIA which means where public authorities are having to consider the public interest they can take such time as is reasonable in the circumstances. This has come to be known as the “Public interest extension”. There is no upper limit on this and public authorities can (and do) take months to provide a response to a request. The Committee has dealt with this point in its report by recommending that the current good practice guidance of the Commissioner be put into statute. In essence this would mean that a public authority could only extend the initial 20 working day deadline by a further 20 working days to consider the public interest test. Any further delay would only be permissible where a third party has to be consulted. I understand the Committee’s reasoning behind the further extension for third party’s as it can be difficult to get private companies or individuals to respond in a manner that is timely so as to meet the time limits in the FOIA. However, I would want to see other public authorities excluded from such an extension. There is no excuse for another body subject to the Act not to respond promptly when they need to be consulted about a disclosure.

Another area of frustration is the length of time taken to conduct internal reviews. In Scotland, we have had since the introduction of our Freedom of Information legislation a clear 20 working day limit on internal reviews. In the FOIA the only real time frame was the requirement for a prompt determination under the code issue by the Justice Secretary pursuant to s.45 of the Act. The Information Commissioner has issued guidance on internal reviews saying that they should normally be conducted in 20 working days and certainly no longer than 40 working days. However, some authorities have had great difficulty in complying with this good practice guidance and it is clear that a statutory timeframe is needed. So, it is very much welcome that the Committee makes such a recommendation. The Committee said:

It is not acceptable that public authorities are able to kick requests into the long grass by holding interminable internal reviews

The Committee has recommended that a statutory time limit of 20 working days be placed on internal reviews. Disappointingly though they also recommend that this can be extended by a further 20 working days where it is a particularly complex or voluminous request. Putting it on a statutory footing will give the Commissioner some additional “bite” when it comes to dealing with extraordinarily long delays in dealing with internal reviews. It will also provide a clear point at which a s.50 complaint can be made. I would suggest that, as with the current position on the s.10(1) deadline, that a applicant should be notified within the initial 20 working day limit, in writing, when the deadline for a review is being extended. That reflects current good practice of the Commissioner that is frequently ignored by authorities, even those who rarely take longer than 40 working days to consider a review.

Another welcome recommendation in the report is to the time limit on brining a prosecution under s.77 of the Act. It is clear that the current position of a prosecution having to be brought within 6 months of the offence being committed is impractical. Even with the strengthening of the time authorities have to respond to requests and internal reviews the Commissioner would be left with insufficient time to find sufficient evidence to bring such a prosecution. Even in Scotland where there are two clear periods of 20 working days (one each forthe initial response and the internal review) the ineffectiveness of the equivalent provisions has been noted. The Justice Committee has suggested that the offence be made an “either way” offence meaning that the 6 month time limit is no longer an issue. It has also recommended an increase in the maximum penalty from £5,000.

This is important because the Commissioner has said publically a number of times that he has seen evidence of offences being committed under s.77 but has been powerless to do anything about them. The Committee said in its report:

The summary only nature of the section 77 offence means that no one has been prosecuted for destroying or altering disclosable data, despite the Information Commissioner’s Office seeing evidence that such an offence has occurred. We recommend that section 77 be made an either way offence which will remove the limitation period from charging. We also recommend that, where such a charge is heard in the Crown Court, a higher fine than the current £5000 be available to the court. We believe these amendments to the Act will send a clear message to public bodies and individuals contemplating criminal action.

This is a clear message from the committee then to those authorities that engage in criminal activities to avoid answering FOI requests.

I wrote recently, in light of the G4S Olympic shambles, on whether private companies delivering large public sector contracts should be subject to the FOIA in their own right. I concluded that there certainly is a case for large companies carrying out public sector contracts to be covered by the FOIA in their own right making them more accountable to the public. The Committee though does not see the need for such action to be taken and state:

We believe that contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act, although it may be necessary to use designation powers if contract provisions are not put in place and enforced. We recommend that the Information Commissioner monitors complaints and applications for guidance in this area to him from public authorities.

The committee is satisfied that the current system of placing clauses in contracts to ensure that private companies need to co-operate with public authorities on FOI is sufficient. The power of course is there for partial designation and the Government should not be afraid to use it. The Committee clearly doesn’t rule out entirely the use of s.5 of the Act. The Information Commissioner and the Government should be monitoring the situation closely and be willing to partially designate a private company where problems exist.

One final recommendation made by the Committee that I want to look at is in relation to Disclosure logs and the publication of the names of those making information requests. Currently, no public authority who operates a disclosure log publishes the name of the person who made the request. The Commissioner doesn’t publish the name of applicants in decision notices either (although the Scottish Information Commissioner routinely publishes the names of both parties in decision notices).

There are Data Protection considerations here. Publishing the name of applicants would be considered as processing personal data. The Commissioner doesn’t publish the names of applicants in his decision notices because of Data Protection. The Scottish Information Commissioner doesn’t have any bother, although this might be down to the way in which it is approached. From the outset applicants for a decision under s.47(1) of the Freedom of Information (Scotland) Act 2002 are told of the Scottish Commissioner’s view on publishing names and are given an opportunity to state why they believe their name should not be made public. If the Commissioner hears of no reasons at all it could be said that people have effectively consented to their name being made public as part of the decision notice.

Until there is a statutory basis of such a move public authorities would be well advised not to take such a step so as not to get into bother with the ICO (who regulates data protection as well as the FOIA). It is a complex issue and one that I might devote a future blog post to.

On the whole I am very pleased with the report that has been published by the Justice Select Committee. It is both fair and balanced. It makes it clear that FOI is of a greater benefit than it is cost and I hope that the Government accepts its recommendations. Change to the Act is some way off though. The content of the report will need to be considered by the Ministry of Justice and the Cabinet. I wouldn’t expect to see a Bill making amendments to the Act before early next year and it could be the end of next year before any changes made come into effect. However, this report will certainly make it much harder for the Government to introduced amendments that will weaken the Act and will hopefully make those who continually try to discredit the Act quieten down, for a while anyway.

Links
Justice Committee’s report (pdf)
Oral and Written evidence (pdf)
Additional (unprinted) evidence (pdf)
Menacing Character: the “Twitter Joke Trial”

July 27th, 2012

By now most people will be aware of the “Twitter Joke Trial” which involved the conviction of Paul Chambers (@pauljchambers) for sending a message of a menacing character via a public electronic communications network contrary to s.127(1)(a) of the Communications Act 2003. If you’re not aware of the facts they are set out succinctly in paragraphs 5 – 19 of the High Court’s judgement (link below).

This morning, at the Royal Courts of Justice in London, the Lord Chief Justice of England and Wales delivered the judgment of the Court in an appeal against conviction by Paul Chambers. This was the third time that Paul Chambers had sat waiting for an appeal judgment. The first appeal to the Crown Court was rejected and the second appeal, to the High Court, had to be reheard after the two judges failed to agree.

There has been a lot of comment and discussion on this case. Some of those who supported the conviction argued that it was necessary in light of the threat of terrorism that such “jokes” are taken seriously by the justice system so as to ensure public safety. Those who did not support the conviction were concerned about; inter alia, the affect on freedom of speech.

John Copper QC, leading Counsel for Paul Chambers, put forth a very convincing legal argument on the meaning of the word “menacing”. To do so they looked to another area of English law, Blackmail, which included reference to “menace”. Robert Smith QC, for the Director of Public Prosecutions, “submitted that no more, and no less, was needed than the application of ordinary language to the context in which any particular message was expressed and to all the relevant circumstances.” (Para 29) However, Mr Cooper argued “that for a message to be of a menacing character it must, on an objective assessment, contain a threat of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive.” (Para 29)

The High Court took the view that before being able to conclude that the message was of a criminal nature on the basis that it was of a menacing character, “its precise terms, and any inferences to be drawn from its precise terms, need to be examined in the context in and the means by which the message was sent” (para 31). Paul Chambers had sent his message at a time when the public was concerned about terrorism and the High Court recognised that the Crown Court was understandably concerned about this. However, the Court’s judgment states at paragraph 31:

In any event, the more one reflects on it, the clearer it becomes that this message did not represent a terrorist threat, or indeed any other form of threat.

The High Court pointed to the language and punctuation of Paul Chambers’ tweet as inconstant with the view that the writer had intended that the tweet to be or be taken as a serious warning.

The High Court also said (at para 32):

In our view, the Crown Court read too much into the observation of Lord Bingham in his judgment in the House of Lords that the criminality of the sender cannot depend upon whether a message is received by A or by A’s reaction. Lord Bingham was saying no more than that a message proved by an objective assessment, applying the standards of an open and multi-racial society to be of a prescribed kind, does not cease to be so just because it was not received or because the person who received it was not, in the context of the present prosecution, menaced. The effect of the message on those who read it is not excluded from the consideration.

The High Court looked at the way in which the airport discovered the tweet, the fact that it was treated as a “non-credible” threat by the airport authorities. They also considered the fact that the airport police took no action and that the speed of the process from discovery to Paul Chambers’ arrest was a sign of there being no real urgency. No evidence had been put before the Court that suggested even the most minimal upgrade to security following discovery of the tweet. The Crown Court, in considering the appeal, was wrong not to consider these factors as part of its decision.

The High Court also noted (para 33):

the fact that those responsible for security at the airport decided to report it at all, which was treated as a significant feature, rather overlooked that this represented compliance with their duties rather than their alarmed response to the message

In essence, the staff at the airport were doing what they were obliged to do in order to comply with company procedures. They had no real discretion as to whether the matter should have been taken any further and so to place such a heavy reliance upon their reporting of the matter to the police was incorrect.

The High Court found that the reliance upon Paul Chambers’ response to a question in interview as to how some people might have reacted to his tweet as misguided. The High Court said that this failed to recognise “the care needed to approach such a widely phrased question in context.” (para 33) Some people, the High Court said, “included those who might lack reasonable fortitude.” (para 33)

The High Court concluded “that, on an objective assessment, the decision of the Crown Court that this “tweet” constituted or included a message of a menacing character was not open to it. On this basis, the appeal against conviction must be allowed.” (para 34)

In short, when seeking to apply the menacing character element of s.127(1)(a) of the Communications Act 2003 it is necessary not simply to look to the dictionary definition of a menace, but to consider whether the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive by the message.

Comment

There is no denying that the tweet in question was not the most sensible thing to put out into the public domain. There was, and remains today, a public sensitivity around terrorism and security of the United Kingdom. However, I am sure we have all said things along the lines of “I’m going to kill x” or “I’m going to blow up y”. We have never really meant it and it will have normally been an expression of our frustration over a particular situation. The matter, when taken out of context can look a lot worse than it actually is. In this case, the context was important in understanding the meaning of the message.

The criminal law ought not to be covering situations unnecessarily and the approach taken by the court to this case previously was far too wide in nature. This was demonstrated, I thought, well by reference to Shakespeare’s “kill all the lawyers” line in Henry VI by John Cooper QC in his submissions to the Court on behalf of Paul Chambers.

This is a sensible decision that restricts the scope of s.127(1)(a) of the Communications Act 2003 to protect those who are making jokes or using colloquial language to express their frustration when using Twitter, Facebook and any other form of internet based social media that will come in the future.

The CPS has come in for a lot of criticism over their decision to prosecute Paul Chambers. For the most part, it’s probably unfair. They took a view that there was sufficient evidence for a reasonable prospect of conviction (based on a wrong interpretation of the law) and thought there was a public interest in prosecuting. One can understand why though given the terrorism threat in the UK. Misguided bomb hoaxes against an airport should be taken seriously by the police and prosecuting authorities. It was clear in this case though that this was not a bomb hoax and perhaps the CPS developed a blinkered view of the case and couldn’t get past thinking about terrorism.

Justice was, eventually, done though and the High Court has given a sensible decision that, one would think, the vast majority of right minded, sensible and level headed people would consider is correct.

Links
High Court’s Judgment in Chambers v DPP (pdf)
Chambers v DPP on BAILL I (web)
Communications Act 2003
Justice Committee’s FOIA conclusions – Part 1

July 26th, 2012

Today the Justice Committee produced their report on the Freedom of Information Act 2000 (FOIA). This concludes the Committee’s post-legislative scrutiny of the FOIA and follows many written submissions and oral hearings of evidence. I submitted my own written evidence.

The tone of the report was set from the very outset where the first words of the report declared Freedom of Information to have “been a significant enhancement of our democracy.” From the very outset it was clear that the committee was not going to be recommending anything that would substantially reduce, restrict or harm the rights afforded to everyone under the FOIA.

There were some clear battles between proponents of the FOIA and those who were seeking to undermine its provisions. Many from within Government were clearly wanting a return to the “good old days” of total secrecy and the ability to largely control what was released from the Government’s large archives of information. In almost all of those battles though the Committee rejected the arguments of those seeking to undermine the provisions of the Act and have produced a report that if implemented would further strengthen the Act.

One of the battles that has emerged is the effect that FOI is having on the workings of Government. High profile people argue that there has been a “chilling effect” where less is being written down about important decisions. Lord Gus O’Donnell (GO’D) and others would have you believe that inside of Whitehall civil servants are paralysed with fear to send an E-mail or write down notes when on the telephone in case that bit of paper is released under FOI. The committee were not convinced and stated so:

We are not able to conclude, with any certainty, that a chilling effect has resulted from the FOI Act

Given that uncertainty, the committee say, they would not be recommending any changes to the current system. The Committee points to the Commissioner’s decisions and Tribunal judgments which clearly recognise the safe space said to be needed for effective Government. They also point to the ministerial veto which can be used for when the Government thinks that the Commissioner/Tribunal got the public interest test wrong. To GO’D and the others concerned about the infringement upon the safe space the Committee recommends that people be reminded “that the Act already provides a safe space, and that the Government is prepared to use the ministerial veto to protect that space if necessary.” The key seems to be about education rather than amendment.

In evidence the Attorney General accepted that there would be occasions on where the public interest does not lie in maintaining the s.35 exemption. His comments came in relation to discussions about minutes made at meetings of the Cabinet. The AG is quite right on that point and it is why it is excellent that the Committee has not recommended making s.35 an absolute exemption or creating a class exemption for cabinet minutes. These things should be determined by what is in the public interest.

Another area of battle that has come about over FOI is the cost and burden to public authorities of FOI. A lot of public authorities who submitted evidence complained about how much time it took or how much it actually cost to deal with FOI requests. The Committee however pointed out in its report that when public authorities are looking at the cost of answering an FOI they are not looking at the wider benefits of FOI. The Committee in their report state:

FOI has costs, but it also creates savings which accrue from the disclosure of inappropriate use of public funds or, more importantly, fear of such disclosure.

It is important that when discussing the costs of FOI that we do not overlook the savings that are made or the potential for savings to be made as a result of the FOIA. After the MPs expenses scandal and other scandals involving wasteful spending of taxpayers’ money, public authorities are more aware that their spending decisions are more likely to be scrutinised and be scrutinised to a greater extent. No longer can public authorities publish meaningless budget figures which allow the public to see spending only at the highest possible level. It is now possible for people to investigate those costs further and drill down to see exactly how money is being spent and wasteful spending can be identified. This saves money for the public in the long-run and should force public authorities to think more carefully about spending decisions. As time goes on hopefully public authorities will look beyond the nice shiny immediate savings and consider how in three or four years time their spending might look in that area as a result of the decisions taken today.

Recently FOI has revealed some financial issues which are costing the UK taxpayer. The Telegraph reported that data from an FOI request showed that large numbers of EU students were coming to universities in the UK, taking advantage of loans and then either disappearing or going into arrears with the repayments. This is a cost to the taxpayer and FOI has made this information public which will hopefully result in action being taken to ensure that this money is recovered and perhaps a look at the system to ensure that EU students taking advantage of loans here in the UK repay them.

The Committee looked at a number of ways that flat fees could be introduced to FOI. They dismissed charging some and not others for simply making a request because of the applicant blindness requirement, but also because it would be easily circumvented and both difficult and expensive to police. They also stated that introducing “fees at a level high enough to recoup costs would deter requests with a strong public interest and would defeat the purposes of the Act.”

Some public authorities had made mention of frivolous requests, such as those about plans to deal with a Zombie attack. The committee was satisfied that this was a relatively small problem and that these “requests can usually be dealt with relatively easily, making it hard to justify a change in the law.” Of course, it has been pointed out that not all requests which public authorities deem frivolous are such. Local authorities have paid for exorcisms and the MoD has spent public money on collating information about UFO sightings. As for zombie attacks, well some people are genuinely afraid of such matters and if spending a few quid to send them a letter saying “we have no specific plans, but our civic contingency plans would cover it” reassures them then that’s just fine.

If the law were to be changed to include frivolous requests to be refused then defining such requests would be a nightmare and no doubt a lot more money would be spent on appeals to the Commissioner and Tribunal than it does to just answer the request in the first place. Vexatious requests are another matter and are provided for adequate in the current Act.

The Committee was seemed alert to the burden of FOI on authorities though in times of austerity and recommended a slight reduction in the appropriate limit of a couple of hours. It rejected though suggestions that including the time spent reading and considering the information for disclosure. Of that it said that these “activities are overly dependent on the individual FOI officer’s abilities, introducing an element of inconsistency into the process that undermines the fundamental objective of the Act, that everyone has an equal right to access information.”

That concludes the first part of this run through the Committee’s report and looks at some of the major battles that have been going on in the world of FOI. The next part of this run through will focus on the recommendations that the Committee has made which will strengthen the process and the Act.

Links
Justice Committee’s report (pdf)
Oral and Written evidence (pdf)
Additional (unprinted) evidence (pdf)