Saturday Hassan and Human Rights

The case of Saturday Hassan, widely reported in the Daily Telegraph, Daily Main and on BBC Radio 4 Today on 21 December 2012, highlights the confusion that still exists about the interaction between the Data Protection Act 1998, the Freedom of Information Act 2000 and, indirectly, the Human Rights Act 1998.

Saturday Hussan is serving a life sentence for the murder of Darren Deslandes – he was shot dead on New Year’s Eve 2009. Darren’s parents, Wintworth and Lurline Deslandes, want the Home Office to disclose Hussan’s immigration status, so that it can be confirmed that if he is an illegal immigrant or foreign national, he will be deported when he is finally released from jail. It is reported that the Home Office have refused the request, on the grounds of the protection of Hussan’s right to privacy (under Article 8 of the European Convention of Human Rights, incorporated into UK law by the Human Rights Act 1998).

This is an inadequate reason, without further explanation from the Home Office. It may also be wrong at law, but the relevant law is complex. I set out below one way in which the information could be lawfully disclosed, but there are others that would need careful analysis of all the relevant facts.

There are various offences related to immigration under, for example, the Immigration Act 1971. It can therefore be legitimately argued that information concerning Hussan’s immigration status is sensitive personal data under the Data Protection Act 1998, for which higher level of safeguards apply. However, sensitive personal data can be processed for a number of lawful reasons, including for the administration of justice or for the exercise of any functions of a Minister of the Crown or government department. Its disclosure, if for these purposes, would therefore not be a breach of the data protection principles, and so would be permitted under the Freedom of Information Act 2000.

What is covered by the “administration of justice” purposes in the Data Protection Act 1998 has not been judicially determined, but in other cases that have reached the European Court of Human Rights (ECHR) in Strasburg, it has been made clear that the ECHR would consider whether any interference to a citizen’s Article 8 right to privacy was justified. In the terms set out in S and Marper v The United Kingdom [2008] ECHR 30562/04 (a case involving retention of DNA records by the police), the ECHR said:

An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”. While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001, with further references). (paragraph 101)

It is therefore arguable that the Home Office could decide that the Deslandes and other similar indirect victims of crime do have a pressing social need to know whether they are safe from the perpetrator of the relevant crime reappearing on their doorstep. It certainly is not as simple as saying Hussan’s right to privacy trumps every other consideration.

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Ofcom’s Sitefinder reprieved?

Ofcom Sitefinder (click to visit)

Sitefinder is a web-based services that allows anyone to search any location or postcode in the UK to discover the location of any nearby mobile phone base station, together with details of the station’s operator, operating frequencies and maximum transmitter power (e.i.r.p. per channel).

Sitefinder was the subject of a request for information under the Environmental Information Regulations 2004 (“EIRs”) to Ofcom, which was refused. The applicant for the information then made an appeal to Ofcom for an internal review, who upheld the initial decision to refuse the request. The applicant then appealed to the Information Commissioner, who was minded to order the disclosure of the relevant information (Case Ref: FER0072933, 11 September 2006). This was then appealed to the Information Tribunal (now known as the First-Tier Tribunal (Information Rights)), who also ordered disclosure (EA/2006/0078, 4 September 2007). Ofcom appealed to the High Court, where the appeal was dismissed ([2008] EWHC 1445 (Admin), 8 April 2008), then to the Court of Appeal ([2009] EWCA Civ 90, 20 February 2009) and the Supreme Court ([2010] UKSC 3, 27 January 2010), who referred a question to the Court of Justice of the European Union (“CJEU”) (Case C-71/10). On 10 March 2011 Advocate General Kokott gave her opinion.  Finally, the CJEU has given its decision ([2011] EUECJ C-71/10, 28 July 2011), which should lead to the case being closed.

Initial Request and Internal Review

The EIRs provide for wider access to information that falls within the wide definition of environmental information included in the EIRs, than the Freedom of Information Act 2000 (“FOIA”) permits.  Consequently, the information request made by an information officer from Health Protection Scotland on 11 January 2005 requesting national datasets of the full details of each mobile phone base station within the Sitefinder database under the FOIA, was correctly processed by Ofcom (being a request for information on factors such as radiation – EIRs, reg.2.1(b)) under the EIRs.  The request was made because Sitefinder itself only permits users to research details within postcode areas, with no national or regional lists or exact details of base station grid references.

As a result of the initial request and request for internal review dated 25 February 2005, a number of exemptions under EIRs came into play, particularly:

  • the public safety and national security exemption at reg.12(5)(a) – the public interest in safeguarding the location of all TETRA sites, and hence all police and emergency services communications, outweighed any public interest in disclosure of the sites’ data; and;
  • the intellectual property rights (‘IPRs’) exemption at reg.12(5)(c) – disclosure would affect the rights of the network operators. The raw national dataset could be used by competitors to discover the design of each mobile network.  The IPRs in question were:
    • the operators’ database right in the Sitefinder database (applying the ruling in CJEU Case C-203/2 British Horseracing Board –v- William Hill, the Commissioner agreed that operators had made the necessary “substantial investment in obtaining, verifying or presenting the contents of the database” (Copyright and Rights in Databases Regulations 1997, reg 13(1)) to create a database right – Ofcom estimated that each operator took up to 50 man hours every 3 months to collate information for Sitefinder as well as 3-5 man-days per month to attend and contribute to Sitefinder policy and development groups);
    • copyright in the operators’ data; and
    • an obligation of confidence (the World Intellectual Property Organisation Convention 1967, Art. 2(viii), includes “rights relating to…works …protection against unfair competition and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields” – the Commissioner did not find that the appropriate obligation of confidence existed in the data supplied by the operators).

Appeal to Information Commissioner

The case was appealed to the Information Commissioner on 22 April 2005. The Commissioner considered the application by Ofcom of the EIRs, reg.12(5) exemptions, carefully applying his Awareness Guidance No. 20, which details how the Commissioner considers the adverse affect test for EIRs, re.12(5) should operate. Essentially, this is a harm test. The Guidance states: “the adverse affect test provides exceptions only in those cases where an adverse affect would arise. In other words, so far as environmental information is concerned, in order to engage an exception, some harm must be certain rather than merely likely. This is a significant difference.”  As Ofcom did not present the Commissioner with evidence of harm to public safety or national security, or the operators’ IPRs, disclosure was ordered.

In coming to this view, the Commissioner took account of the balance of interests under EIRs’ cases: Recital 16 of the EU Directive on public access to environmental information (Council Directive 2003/4/EC), upon which the EIRs are based, states that exceptions must “be interpreted in a restrictive way”. It was quite possible for Ofcom to disclose the requested information subject to the operators’ database rights and copyright, so that the requester could not use the disclosed database. A public authority cannot prejudge use of disclosed environmental information. The EIRs, as with the FOIA, do not require a requester to state the purpose of the request.  For both copyright and database right, it was ruled that use of the disclosed database by the requester would require a licence from the operators, which by implication they could refuse to grant.

Appeal to Information Tribunal

Ofcom appealed to the Information Tribunal on 10 October 2006, and T-Mobile was permitted by the Tribunal to be joined to the appeal on 29 November 2006.  The case before the Tribunal was a messy one – it was not simply an appeal of the Commissioner’s decision.  However, amongst other rulings, the Information Tribunal in considering the EIRs, reg.12(5)(b) public safety exception, did consider that there was a slightly increased risk that the disclosure of the site information requested, being more accurate than that already in the public domain, may adversely affect public safety. However, the Tribunal did not consider that this increased risk outweighed the public interest in the site information, given its importance as identified in the Stewart Report and for epidemiological investigations.

The Tribunal was also not convinced that the IPR exemption at EIRs, reg.12(5)(c) applied. The Tribunal decided that the exemption can only be applied if there is sufficient adverse effect to trigger the exemption, followed by a consideration of whether there the actual or potential harm in the disclosure is sufficiently great to outweigh the public interest in disclosure. The Tribunal considered that the test to find adverse effect should not be set with a particularly high threshold – the exemption could apply to any case where there was more than a mere technical or minimal infringement of the relevant IPR.  The Tribunal considered the degree of harm that disclosure of the Sitefinder dataset would cause. For example, it considered the potential loss of revenue claimed by the operators from their inability to license their site data and the adverse effect that the disclosure of the Sitefinder information would result in the implied disclosure of each operator’s network design.

In each case, the Tribunal was not convinced that there would be actual or potential harm under each of the headings submitted by Ofcom and T-Mobile, but considered that there was sufficient adverse effect from the combination of the various factors.

The Tribunal also considered a further public interest in withholding the Sitefinder data. The operators’ had warned Ofcom that as their supply of base station data was not a statutory requirement but was made by them voluntarily, they would refuse to supply any further data if the Tribunal ruled in favour of disclosure. There was clearly a public interest in maintaining Sitefinder. The Tribunal did not consider that it could base its decision on any actual or implied threat of future non-cooperation by the operators.

In addition, the Tribunal did not accept Ofcom’s view that the EIRs required it to consider whether the aggregate public interest in maintaining the exemptions outweighed the public interest in favour of disclosure.

Appeal to the Administrative Court

In the Administrative Court the question of how to apply the EIRs exemptions was considered. In essence, the Court reviewed whether a public authority should consider the public interest in disclosure outweighed the public interest in withholding the requested information for each separate exemption that could apply, and only if all exemptions resulted in the public interest in disclosure being outweighed should the information not be released. The contrary argument was that the public authority should consider the aggregate public interest, was dismissed by the Court. In reviewing the IPRs exemptions, the Administrative Court considered that the Tribunal could consider whether the use of the data to be disclosed (i.e. for epidemiological research) was in the public interest, even if that meant a breach of the operators’ rights. This was important as strictly a person requesting information under the EIRs or FOIA does not have to state a purpose (however, I have always advised applicants that the purpose should be stated, for exactly this reason – it colours the public interest test – see the chapter I have co-authored in the Law Society’s Freedom of Information Handbook).

Appeal to the Court of Appeal

The Court of Appeal reviewed the Administrative Court’s view on aggregation of public interest, and determined that the Administrative Court had erred in not following this approach. However, the Court of Appeal agreed that the purpose to which the data disclosed was to be put could be considered in any public interest test.

Supreme Court

The issue for the Supreme Court was therefore the same: how should a public authority apply more than one exemption? Is each exemption to be addressed separately, by considering whether the interest served by it is outweighed by the public interest in disclosure? Or can the interests served by different exemptions be combined and then weighed against the public interest in disclosure? The Supreme Court quickly realised that this involved discerning what was intended by Directive 2003/4/EC, and so made the following reference to the CJEU:

Under Council Directive 2003/4/EC, where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception (in casu, the interests of public security served by article 4(2(b) and those of intellectual property rights served by article 4(2)(e)), but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, does the Directive require a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure?

Advocate General Opinion

Julianne Kokott has carried out her usual thorough analysis, and has suggested to the CJEU that they answer:

Under Council Directive 2003/4/EC on public access to environmental information, where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception under Article 4(2), but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, the directive requires a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure.

Decision of the CJEU

Perhaps not surprisingly, the CJEU has followed the conclusion of the Advocate General. The judgement is short and to the point, so I will not repeat the analysis of Article 4(2) of Directive 2003/4/EC made by the CJEU to enable them to come to this conclusion (see the link above).

As a result of the decision, the matter will be referred back relatively quickly to the First-Tier Tribunal (Information Rights), where I expect the cumulation of exemption interests will be found to outweigh the public interest in disclosure, so that Sitefinder will be reprieved.

Ofcom's Sitefinder: rumours of its death have been greatly exaggerated?

Ofcom Sitefinder (click to visit)

I’ve always had more than a passing interest in the Ofcom Sitefinder, because prior to re-qualifying as a lawyer I was a communications engineer.  I was also a specialist radiation safety officer.  Sitefinder allows you to search any location or postcode in the UK to discover the location of any mobile phone base station, together with details about its operator, operating frequencies and maximum transmitter power (e.i.r.p. per channel).  From this site I can see that the nearest base station to my house in Portsmouth is about 600m away.  It’s details on Sitefinder show:

Name of Operator 3
Operator Site Ref. PO0032
Station Type Macrocell
Height of Antenna 21 Metres
Frequency Range 2100 MHz
Transmitter Power 24.46 dBW
Maximum licensed power 32 dBW
Type of Transmission UMTS

 

Whilst there is still ongoing discussion and medical research about what are safe levels of exposure to non-ionsing radiation, the maximum exposure levels recommended by the International Commission on Non-Ionizing Radiation Protection are widely followed. The safe exposure levels for members of the public for 10GHz, which are lower than that for 2.1GHz, are easily understood as it is set at 10W/m². As 3 transmits from the Cosham base station at 24.46 dBW, or 279.3W, and as all mobile phone (UHF) radio waves use direct radio propagation so that the power falls proportionally to the square of the distance from the transmitter, I would be perfectly safe under ICNIRP guidelines, assuming that I have roughly a 1m² profile, at a distance of 5.3m from the antenna (which would be difficult, as its 21m high).

Sitefinder is interesting from a legal point of view as it is the subject of a request for information under the Environmental Information Regulations 2004 (“EIRs”) to Ofcom, which was refused. The applicant for the information then made an appeal to Ofcom for an internal review, who upheld the initial decision to refuse the request. The applicant then appealed to the Information Commissioner, who was minded to order the disclosure of the relevant information (Case Ref: FER0072933, 11 September 2006). This was then appealed to the Information Tribunal (now known as the First-Tier Tribunal (Information Rights)), who also ordered disclosure (EA/2006/0078, 4 September 2007). Ofcom appealed to the High Court, where the appeal was dismissed ([2008] EWHC 1445 (Admin), 8 April 2008), then to the Court of Appeal ([2009] EWCA Civ 90, 20 February 2009) and the Supreme Court ([2010] UKSC 3, 27 January 2010), who referred a question to the Court of Justice of the European Union (“CJEU”) (Case C-71/10). The Sitefinder case will therefore be the first EIRs case to go the full distance.  On 10 March 2011 Advocate General Kokott gave her opinion. The story should therefore, after over 6 years, soon come to an end.

Initial Request and Internal Review

The EIRs provide for wider access to information that falls within the wide definition of environmental information included in the EIRs, than the Freedom of Information Act 2000 (“FOIA”) permits.  Consequently, the information request made by an information officer from Health Protection Scotland on 11 January 2005 requesting national datasets of the full details of each mobile phone base station within the Sitefinder database under the FOIA, was correctly processed by Ofcom (being a request for information on factors such as radiation – EIRs, reg.2.1(b)) under the EIRs.  The request was made because Sitefinder itself only permits users to research details within postcode areas, with no national or regional lists or exact details of base station grid references.

As a result of the initial request and request for internal review dated 25 February 2005, a number of exemptions under EIRs came into play, particularly:

  • the public safety and national security exemption at reg.12(5)(a) – the public interest in safeguarding the location of all TETRA sites, and hence all police and emergency services communications, outweighed any public interest in disclosure of the sites’ data; and;
  • the intellectual property rights (‘IPRs’) exemption at reg.12(5)(c) – disclosure would affect the rights of the network operators. The raw national dataset could be used by competitors to discover the design of each mobile network.  The IPRs in question were:
    • the operators’ database right in the Sitefinder database (applying the ruling in CJEU Case C-203/2 British Horseracing Board –v- William Hill, the Commissioner agreed that operators had made the necessary “substantial investment in obtaining, verifying or presenting the contents of the database” (Copyright and Rights in Databases Regulations 1997, reg 13(1)) to create a database right – Ofcom estimated that each operator took up to 50 man hours every 3 months to collate information for Sitefinder as well as 3-5 man-days per month to attend and contribute to Sitefinder policy and development groups);
    • copyright in the operators’ data; and
    • an obligation of confidence (the World Intellectual Property Organisation Convention 1967, Art. 2(viii), includes “rights relating to…works …protection against unfair competition and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields” – the Commissioner did not find that the appropriate obligation of confidence existed in the data supplied by the operators).

Appeal to Information Commissioner

The case was appealed to the Information Commissioner on 22 April 2005. The Commissioner considered the application by Ofcom of the EIRs, reg.12(5) exemptions, carefully applying his Awareness Guidance No. 20, which details how the Commissioner considers the adverse affect test for EIRs, re.12(5) should operate. Essentially, this is a harm test. The Guidance states: “the adverse affect test provides exceptions only in those cases where an adverse affect would arise. In other words, so far as environmental information is concerned, in order to engage an exception, some harm must be certain rather than merely likely. This is a significant difference.”  As Ofcom did not present the Commissioner with evidence of harm to public safety or national security, or the operators’ IPRs, disclosure was ordered.

In coming to this view, the Commissioner took account of the balance of interests under EIRs’ cases: Recital 16 of the EU Directive on public access to environmental information (Council Directive 2003/4/EC), upon which the EIRs are based, states that exceptions must “be interpreted in a restrictive way”. It was quite possible for Ofcom to disclose the requested information subject to the operators’ database rights and copyright, so that the requester could not use the disclosed database. A public authority cannot prejudge use of disclosed environmental information. The EIRs, as with the FOIA, do not require a requester to state the purpose of the request.  For both copyright and database right, it was ruled that use of the disclosed database by the requester would require a licence from the operators, which by implication they could refuse to grant.

Appeal to Information Tribunal

Ofcom appealed to the Information Tribunal on 10 October 2006, and T-Mobile was permitted by the Tribunal to be joined to the appeal on 29 November 2006.  The case before the Tribunal was a messy one – it was not simply an appeal of the Commissioner’s decision.  However, amongst other rulings, the Information Tribunal in considering the EIRs, reg.12(5)(b) public safety exception, did consider that there was a slightly increased risk that the disclosure of the site information requested, being more accurate than that already in the public domain, may adversely affect public safety. However, the Tribunal did not consider that this increased risk outweighed the public interest in the site information, given its importance as identified in the Stewart Report and for epidemiological investigations.

The Tribunal was also not convinced that the IPR exemption at EIRs, reg.12(5)(c) applied. The Tribunal decided that the exemption can only be applied if there is sufficient adverse effect to trigger the exemption, followed by a consideration of whether there the actual or potential harm in the disclosure is sufficiently great to outweigh the public interest in disclosure. The Tribunal considered that the test to find adverse effect should not be set with a particularly high threshold – the exemption could apply to any case where there was more than a mere technical or minimal infringement of the relevant IPR.  The Tribunal considered the degree of harm that disclosure of the Sitefinder dataset would cause. For example, it considered the potential loss of revenue claimed by the operators from their inability to license their site data and the adverse effect that the disclosure of the Sitefinder information would result in the implied disclosure of each operator’s network design.

In each case, the Tribunal was not convinced that there would be actual or potential harm under each of the headings submitted by Ofcom and T-Mobile, but considered that there was sufficient adverse effect from the combination of the various factors.

The Tribunal also considered a further public interest in withholding the Sitefinder data. The operators’ had warned Ofcom that as their supply of base station data was not a statutory requirement but was made by them voluntarily, they would refuse to supply any further data if the Tribunal ruled in favour of disclosure. There was clearly a public interest in maintaining Sitefinder. The Tribunal did not consider that it could base its decision on any actual or implied threat of future non-cooperation by the operators.

In addition, the Tribunal did not accept Ofcom’s view that the EIRs required it to consider whether the aggregate public interest in maintaining the exemptions outweighed the public interest in favour of disclosure.

Appeal to the Administrative Court

In the Administrative Court the question of how to apply the EIRs exemptions was considered. In essence, the Court reviewed whether a public authority should consider the public interest in disclosure outweighed the public interest in withholding the requested information for each separate exemption that could apply, and only if all exemptions resulted in the public interest in disclosure being outweighed should the information not be released. The contrary argument was that the public authority should consider the aggregate public interest, was dismissed by the Court. In reviewing the IPRs exemptions, the Administrative Court considered that the Tribunal could consider whether the use of the data to be disclosed (i.e. for epidemiological research) was in the public interest, even if that meant a breach of the operators’ rights. This was important as strictly a person requesting information under the EIRs or FOIA does not have to state a purpose (however, I have always advised applicants that the purpose should be stated, for exactly this reason – it colours the public interest test – see the chapter I have co-authored in the Law Society’s Freedom of Information Handbook).

Appeal to the Court of Appeal

The Court of Appeal reviewed the Administrative Court’s view on aggregation of public interest, and determined that the Administrative Court had erred in not following this approach. However, the Court of Appeal agreed that the purpose to which the data disclosed was to be put could be considered in any public interest test.

Supreme Court

The issue for the Supreme Court was therefore the same: how should a public authority apply more than one exemption? Is each exemption to be addressed separately, by considering whether the interest served by it is outweighed by the public interest in disclosure? Or can the interests served by different exemptions be combined and then weighed against the public interest in disclosure? The Supreme Court quickly realised that this involved discerning what was intended by Directive 2003/4/EC, and so made the following reference to the CJEU:

Under Council Directive 2003/4/EC, where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception (in casu, the interests of public security served by article 4(2(b) and those of intellectual property rights served by article 4(2)(e)), but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, does the Directive require a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure?

Advocate General Opinion

Julianne Kokott has carried out her usual thorough analysis, and has suggested to the CJEU that they answer:

Under Council Directive 2003/4/EC on public access to environmental information, where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception under Article 4(2), but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, the directive requires a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure.

If this is followed by the CJEU, then the matter will be referred back relatively quickly to the First-Tier Tribunal (Information Rights), where I would expect the aggregation of exemption interests will be found to outweigh the public interest in disclosure, so that Sitefinder will be saved, and we can all go home.

(PS For legal readers: I did describe the case up to the Information Tribunal, as it then was, in the Freedom of Information Journal. I intend to write-up a more legal analysis of the whole saga for publication, once the CJEU has made its ruling.)

An FOI opportunity missed?

The Minister of Justice, Jack Straw, has disclosed in an audit report that 954 convicted criminals who had been released on licence from prison and then recalled, are still at large.  The Daily Mail, in its article on the story, reported that the Durham and Surrey police forces cited the Data Protection Act 1998 as their reason for not being able to name criminals in their area who are at large.

We suspect that the Mail’s journalists must have contacted the police forces quoted in the story by telephone, which may explain the citing of the Data Protection Act 1998 (“DPA”) to decline the requested disclosure.   However, there is an argument that the prevention and detection of crime exemption at s.29 of the DPA could have been used to allow the disclosure, had the Durham and Surrey forces been so minded.

If the constabularies had been asked for the criminals’ details in writing, these would have been a freedom of information requests under the Freedom of Information Act 2000 (“FOIA”)(see s.8(1)).  It would have been interesting to see their reasoned explanation for their refusals (as required under s.17 of FOIA).   

The personal information exemption that a constabulary could have cited to deny the Mail the details (s.40 of the FOIA) is notoriously difficult to understand and apply.  However, it is arguable that none of the absolute exemptions from disclosure under s.40 apply, as none of the data protection principles would have been breached by a disclosure.  Instead, only the public interest test of the qualified exemption in s.40 would have applied.

It’s an interesting question:  is the public interest better served by having these criminals’ details in the public domain rather than by preserving their data protection rights (and arguably their safety and public order) by having their details retained?  Given that some other forces have published this information, it would appear the public interest may lie in disclosure.

Perhaps the Mail should pursue its story, using a written request under FOIA for these criminals’ names?

Should Dr Malcolm Jack pack a toothbrush?

Dr Malcolm Jack is the Clerk of the House (of Commons), and since 1992 the Clerk of the House is also the Corporate Officer of the House of Commons. The House of Commons appeal to the High Court against the Information Tribunal rulings on various Information Commissioner decision notices relating to MPs’ expenses, particularly the now infamouse Additional Costs Allowance, was made in his name. He is also the person to whom the order of the Information Tribunal is addressed.

Details of MP’s allowances were published on 18 June 2009 online. However, there has been a media frenzy about the amount of redaction on the published information. It should be noted that the Information Tribunal descision sets out what information could be redacted:

(1) Any sensitive personal data, relating to the MPs named in the requests, within the meaning of DPA s2(a), (c) or (e)-(h).
(2) Personal data of third parties (not the MPs). But this exception shall not extend to the name of any person to whom the MP paid rent or mortgage interest which was claimed under ACA.
(3) The MPs’ bank statements, loan statements, credit card statements, other personal financial documents, and financial account numbers and financial reference numbers. This exclusion shall not extend to the names of mortgagees, chargees or landlords in respect of homes for which ACA was claimed, or to the amounts of interest or rent which were paid, claimed and reimbursed under ACA or (subject to the requisite redactions of sensitive or irrelevant data) to the information submitted in support of such claims contained on statements of account with mortgagees, chargees or landlords: these items of information must be disclosed.
(4) The itemised parts of telephone bills listing calls to individual numbers.
(5) The names and addresses of suppliers or contractors who had regular access to the MPs’ homes.
(6) All details relating to the security measures at the MPs’ homes (whether goods or services), save that where an amount has been identified by the MP as relating to security, that reference and the total amount attributed to it shall not be redacted.
(7) Where a particular MP has a special security reason for keeping the address of his or her main or second home confidential (for example, because of a problem with a stalker, or a terrorist or other criminal threat), that address may be redacted.

So what if the original applicants for the MPs’ expenses information consider that the redactions go to far?  It would seem, from a little known unreported case (see our Re Ewing Briefing Note) that the Information Tribunal is a court.  Failure to comply with its orders would be a contempt of court, for which, in the extreme, the court can order imprisonment.  Whilst the procedure in the Freedom of Information Act 2000 is not clear (for example, do the applicants have to complain again to the Information Commissioner under section 50, or can they go direct to the Information Tribunal?), it would appear that Parliament cannot expect its interpretation of what is redactable to be the last word.