Recent developments in information law: part 2

Challenges to the disclosure of data by the police

From Scotland is the case of Lyons v CC of Strathclyde Police [2013] CSIH 46, which demonstrates the many difficulties of using the Data Protection Act to challenge the disclosure of information by (here) the police.

In this case, the Chief Constable of Strathclyde had twice written to regulatory bodies, to say that intelligence held by the police indicated that Mr Lyons was involved in serious and organised crime, including drug trafficking.

Mr Lyons challenged the truth of these disclosures of ‘sensitive’ personal data, saying that he had led “a straight life”. His attempt to use the DPA to stop such disclosures being made was unsuccessful. He suggested that there was a breach of the fourth data protection principle (“Personal data shall be accurate”). But it was held that the police letter was no more than a statement that “the police held intelligence that indicates that the claimant was involved in serious and organised crime.” That was an accurate statement.

Furthermore, “a data controller is not required to guarantee that information obtained from a third party [i.e, a police source] and then held by the data controller is factually correct”; the data controller is merely required to take “reasonable steps” to ensure the accuracy of the data, and also to record any objections expressed by the data subject (see paragraph 7 of Part II of Schedule 1, which gives further commentary on the application of the data protection principles).

An argument might have been developed that this processing was “unfair”, having regard to the requirements of the first data protection principle. After all, the problem for Mr Lyons was that the police were – at least implicitly – giving weight to the allegations they were passing on, but he had no means of knowing their sources: the information was “shorn of any indication where the information came from”. As a result, it would be difficult to question the accuracy or credibility of the information. However, this was not properly pleaded (see paragraph 24 of the judgment), and the Court was not prepared to entertain the point.

The most recent English case on police powers of retention (rather than disclosure) of information is TD v Metropolitan Police Commissioner [2013] EWHC 2231 (Admin) (25.7.13), in which the Divisional Court upheld the defendant’s decision to retain information about an allegation of sexual assault on the Police National Computer.

The allegation, in respect of which no action was taken against TD by the police, had been retained on the files for nearly nine years by the time that the case came to court. The police had demonstrated that they would not disclose it to a future employer for the purpose of an Enhanced Criminal Records Certificate, but wished to be able to examine it should another allegation be made against TD or by the same complainant. The defendant’s guidance for “serious specified offences” (which this potentially was) was that the information would be retained indefinitely.

It was plain that the retention of the information constituted an “interference” with the claimant’s Article 8 rights; the question was whether it could be justified under Article 8(2). The Court accepted that it was justified, at least at the present time: 

“When considering the policy for review and retention the interests at stake may be wider than the rights of the individual concerned and the detection of crime. The striking feature on the claimant’s account of the allegation in this case is that it was fabricated altogether. It is not uncommon in cases alleging sexual impropriety for evidence of a complainant’s history of previous unfounded allegations, disclosed by the prosecuting authorities, to be essential to ensure a fair trial.” [19].

But Moses LJ and Burnett J criticised the absence of provision for a review of the necessity of retention; the defendant’s policy needed to incorporate this.

The general pattern of cases such as TD and the ‘Ring of Steel’ enforcement decision is to link issues under the DPA to an analysis of rights under Article 8, ECHR. Whether this is necessary, given the very specific language and requirements of the DPA, may be questioned. After all, as Baroness Hale observed, in a case involving Condition 6 the balancing exercise required by Article 8(2) is built into the condition itself. So it should not be necessary to conduct a ‘parallel’ exercise by reference to Article 8, ECHR.

The Upper Tribunal

We have previously reported on Home Office v ICO and others; John O v ICO (EA/2011/0265/022/0280) and Browning v ICO [2013] UKUT 0236 (AAC), both of which concerned the ‘closed’ procedure of the Information Rights Tribunal.

The Upper Tribunal (UT) returned to the subject in the case of FCO v Information Commissioner and Plowden [2013] UKUT 0275 (AAC), in which Judge Jacobs emphasised that the FTT should always ensure that as much evidence as possible is given in open hearing. After evidence has been given in closed hearing, the other party should be told of any evidence that can properly be disclosed. The FTT is entitled to the cooperation of the public authority calling evidence in the closed hearing in achieving these ends. Judge Jacobs reminded the parties that an FTT decision may be set aside if these principles are not observed.

Judge Jacobs further held that the UT will be less reluctant to hold that the FTT has made an error of law in assessing the public interest balance, if the FTT has assessed a policy area in which it has no particular expertise (such as foreign affairs and diplomacy, the subject of the case). Further, an assessment of the public interest balance requires assessment of both the detrimental effects of disclosure and the benefits of disclosure. In this case, the benefits of disclosing information which was ‘not particularly informative’ had to be justified, when set against the high public interest in maintaining the exemption in a case relating to diplomatic exchanges.

Manifestly unreasonable requests

We have previously reported on the IC’s guidance on vexatious requests under s14(1) FOIA. With two new FTT decisions which consider the application of the test for “manifestly unreasonable” requests under the EIR, it is now that test which is under the microscope.

The EIR provides no binding definition of the term ‘manifestly unreasonable’ but case law has held it to be coterminous with the term ‘vexatious’ under section 14 FOIA (see Craven v IC & DECC [2012 UKUT 442 (AC) at 30). It is of note, however, that in both of the decisions discussed below, the Tribunal did not agree with the IC’s importation of the FOIA time limits, raising questions about the extent to which the approach taken to vexatious requests under the FOIA should be transposed to requests made under the EIR.

In Yeoman v Information Commissioner (EA/2013/0008) the IC’s approach to this test was overruled by the FTT. The case concerned requests for disclosure, from Cornwall Council, of all ‘section 106 agreements’ (i.e. - agreements between developers and local planning authorities that are negotiated under the Town and Country Planning Act 1990 as part of a condition of planning consent). When reaching the conclusion that the request was manifestly unreasonable, the IC had taken into account:

(a) the time that it would take the public authority to respond to the requests (the council estimated that it would take around 28 hours 47 minutes of staff time);

(b) the effective staff time limit of 18 hours in relation to FOIA applications. There was no similar effective time limit under the EIR, but, the IC felt that the time estimate was so far in excess of the FOIA limit as to render the request ‘clearly unreasonable’; and

(c) whether the public interest test favoured non-disclosure. The IC concluded that given the time involved in meeting the request, this would disrupt the council’s ‘core duties’.

The tribunal agreed with the IC’s analysis that the amount of staff time that it would take to respond to the request rendered it manifestly unreasonable. However, the Tribunal did not agree with the IC’s importation of the FOIA time limits. It held that the absence of time limits from the EIR framework was a “fairly compelling indication” that the FOIA time limits were not a pertinent consideration in relation to EIR applications.

The Tribunal was also critical of the IC's approach to the issue of the public interest. The Tribunal concluded that the IC had considered the public interest too narrowly, focusing only on the interests of the business community. The Tribunal stressed that there was a broader and “manifest public interest” in having the information sought released to the wider public (and not just the business community) so that they would know about the amount of money (or other obligations) associated with section 106 agreements. The public would also be able to check when commitments under section 106 agreements were due to arise and whether developers were honouring their commitments. This was a “core function” of the public authority rather than a distraction.

The Tribunal found that the IC had wrongly conflated the public interest test with the ‘manifestly unreasonable’ test, finding that length of time involved in answering the request meant that disclosure was against the public interest. The Tribunal stressed that the public interest test is distinct from and not synonymous with the manifestly unreasonable test. Thus, although the Tribunal concluded that, on balance, the request could properly be characterised as manifestly unreasonable, it also concluded that the public interest strongly favoured disclosure. The appeal was allowed and the council was ordered to respond to the request.

The IC found his application of the ‘manifestly unreasonable’ test overruled again in Silverman v IC (EA/2013/0027), a case decided on the same day and before the same judge. Requests had been made to the Department for Transport for information relating to Mr Silverman’s campaign entitled ‘Clean Highways’. The campaign sought to tackle litter problems on the UK’s road network. The Department for Transport estimated that it would take it around 72 hours of staff time to respond to Mr Silverman’s requests. The Commissioner felt this estimate to be slightly excessive but he did not carry out his own analysis or offer a substitute figure. The Commissioner also considered the following factors:

• the number of previous requests that had been made by Mr Silverman since May 2010;
• the public authority’s positive response to previous representations from Mr Silverman; and
• the unsuccessful nature of the appellant’s application for a litter abatement order in proceedings brought against the public authority.

The Commissioner concluded that these three points, taken together, meant that Mr Silverman's applications were ‘manifestly unreasonable’. Mr Silverman disputed the Commissioner's conclusions regarding the time it would take to respond to his requests, the conclusion that the requests would be burdensome and the conclusion that the requests were obsessive.

Applying IC v Devon County Council & Dransfield [2012] UKUT 440 (AC), the Tribunal noted that it was confronted with conflicting evidence on the extent of the burden to the public authority created by the request. It felt unable to provide its own time estimate but, on balance, it concluded that the time incurred in responding to the requests could not be properly characterised as an unreasonable burden. It also repeated its comments on the inappropriateness of importing FOIA time limits to the EIR framework.

The Tribunal further found that the number of applications (13 over a period of two and a half years) was not excessive “in light of the worthwhile nature of Mr Silverman's campaign”. The Tribunal found the Commissioner’s submissions in relation to the apparently obsessive nature of Mr Silverman's requests to be muddled and unpersuasive. It also rejected the conclusion that the failed application for a litter abatement order had any notable relevance.

Finally, it noted the fact that Mr Silverman had made a number of FOIA and EIR applications following this appeal which had been answered without complaint. This undermined the suggestion that his requests had reached a level where they could be objectively characterised as obsessive.

Consequently, the Tribunal unanimously concluded that Mr Silverman's requests could not be properly characterised as manifestly unreasonable. The appeal was allowed and the DfT ordered to respond to the appellant’s enquiries.

Interestingly, in reaching its decision, the Tribunal placed significant weight on what it considered to be the “decent worthwhile” nature of Mr Silverman’s campaign which it considered to have a “serious aim and purpose which was of general benefit to the whole community”, perhaps suggesting that a campaign which was not considered as worthy or ‘decent’ (or uncontroversial?) may be subject to a different approach from the Tribunal.

Eleanor Grey QC, Catherine Dobson and Jack Anderson are barristers at 39 Essex Street.

The first article – covering issues such as the Attorney-General's power of veto, surveillance and a Supreme Court ruling on data protection – can be viewed here.